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Mitchell v. Foster

United States District Court, E.D. Wisconsin

June 19, 2018

IVAN MITCHELL, Plaintiff,
v.
BRIAN FOSTER, ANN SCARPITA, NICOLE KAMPHUIS, DONNA LARSON, LORI DOEHLING, EMILY STADTMUELLER, NANCY WHITE, CPT. KYLE TRITT, and JAMES MUENCHOW, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT

          HON. PAMELA PEPPER United States District Judge

         The plaintiff is a Wisconsin state prisoner incarcerated at Waupun Correctional Institution (WCI), and is representing himself. He filed a complaint in the Western District of Wisconsin, alleging that the defendants were deliberately indifferent to his serious medical need in violation of the Eighth Amendment, and raising a state law tort claim. Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, and screens the complaint.

         I. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2)

         The Prison Litigation Reform Act (“PLRA”) applies to this case, because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the filing fee, as long as he meets certain conditions. Id. One of those conditions is a requirement that the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays that partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         On August 15, 2017, Magistrate Judge Oppeneer ordered the plaintiff to pay an initial partial filing fee of $18.00; the court received that payment on August 21, 2017. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee and will allow the plaintiff to pay the balance of the $350 filing fee over time from his prisoner account, as described at the end of the this order.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         A. Standard for Screening Complaints

         The PLRA requires federal courts to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). A court must dismiss a complaint, or part of it, if a prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). A court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, a plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for a plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint that offers mere “labels and conclusions, ” however, or a “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). A complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts follow the two-step process in Twombly. First, the court “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court then must “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Finally, a court is obliged to give a pro se plaintiff's allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         B. The Plaintiff's Allegations

         The plaintiff alleges that on September 2, 2015, he was taken to the University of Wisconsin podiatry clinic for a follow-up on his plantar fasciitis. Dkt. No. 1 at 3. The podiatrist examined him, and recommended several forms of treatment-application of a gel four times a day for six months, radiographic images of his ankle, daily wear of orthotics/ankle braces, referral for a consult regarding his left ankle, and “a new pair of high top athletic style shoes as current pair are worn.” Id. at 3-4. Within two weeks of his podiatry evaluation, a nurse practitioner at WCI forwarded forwarded to defendant Ann Scarpita, a special needs coordinator at WCI, a September 8, 2015 request for a new pair of shoes. Id. Scarpita responded that the plaintiff was “supplied with boots from institution with high top for support, ” and that inmates could purchase high top tennis shoes from an outside vendor through a catalog. Id.

         A couple of months later, on November 14, 2015, the plaintiff submitted a “reasonable modification/accommodation request” to defendant Nicole Kamphuis, an accommodation coordinator at WCI. Id. at 5. He asked to be able to order shoes from an outside vendor, saying that the shoes offered in the canteen catalog did not meet his medical needs (high tops, size 12, EEEE width, with shock absorption capability). Id. Kamphuis responded that this ...


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