United States District Court, E.D. Wisconsin
AND ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
3), DENYING AS MOOT PLAINTIFF'S MOTION TO USE FUNDS FROM
RELEASE ACCOUNT (DKT. NO. 9) AND SCREENING THE
PAMELA PEPPER United States District Judge
plaintiff, who is representing himself, is a prisoner at
Racine Correctional Institution (RCI). He filed this
complaint, alleging that the defendants had violated his
civil rights under 42 U.S.C. §1983. Dkt. No. 1. The
plaintiff also has filed a motion for leave to proceed
without prepayment of the filing fee, dkt. no. 2; a motion
asking the court to appoint counsel, dkt. no. 3; and a motion
to use funds from his release account to pay the filing fee.,
dkt. no. 9. This order resolves the plaintiff's motions
and screens his complaint.
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. No. 2) and Motion to Use Funds from Release Account
to Pay the Filing Fee (Dkt. No. 9)
the plaintiff was incarcerated when he filed his complaint,
the Prison Litigation Reform Act (PLRA) applies to this case.
28 U.S.C. §1915. The PLRA allows an incarcerated
plaintiff to proceed with his lawsuit without prepaying the
filing fee, as long as he meets certain conditions. One of
those conditions is that the plaintiff must pay an initial
partial filing fee. 28 U.S.C. §1915(b). On November 15,
2017, U.S. Magistrate Judge David E. Jones (the judge
assigned to the case at that time) ordered the plaintiff to
pay an initial partial filing fee of $35.08. Dkt. No. 8.
About a week later, the court received a motion from the
plaintiff, asking it to allow him to pay the filing fee with
funds in his release account. Dkt. No. 9. He explained that
he did not have $35.08 in his regular account, and that he
would not have that much in the account by the deadline. Dkt.
No. 9-1. Less than a week after that, the court received
$400-the full filing fee, plus the civil administrative fee.
the plaintiff has paid the full $400 filing fee, his motion
to proceed without prepayment of the filing fee and his
motion to use funds in his release account to pay the filing
fee are moot.
Screening of the Plaintiff's Complaint
requires the court 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).
The court must dismiss a complaint if the plaintiff raises
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).
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
proceed on a claim that his civil rights were violated under
42 U.S.C. §1983, a plaintiff must allege that: 1) he was
deprived of a right secured by the Constitution or laws of
the United States; and 2) the defendant was acting under
color of state law. Buchanan-Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861
(7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S.
635, 640 (1980). The court gives 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)).
The Plaintiff's Allegations
plaintiff explains that he has been incarcerated at RCI since
July 24, 2012. Dkt. No. 1 at ¶14. He states that he
suffers from “Cervical Radiculopathy, Degenerative Disc
Disease (DDD) in his lumbar and Cervical Spondylosis with
Myelopathy and radiculopathy, Myalgia Myositis.”
Id. He asserts that these conditions cause him
severe pain that does not go away. Id.
plaintiff explains that when he arrived at RCI, he was
dealing with chronic back pain and had recently had ankle
surgery. Id. at ¶15. He states that the surgeon
had prescribed Tramadol for the pain, which he began
receiving on August 23, 2012. Id. About a week
later, he requested a refill of the medication, but defendant
nurse practitioner Lora Blasius allegedly cancelled the
order. Id. According to the plaintiff, after trying
several times to contact Blasius about the cancellation, he
reached out to defendant health services manager Sue Nygren,
but she allegedly never responded. Id. at ¶16.
The plaintiff indicates that he filed “several”
inmate complaints about the issue; all of them were dismissed
“for reasons unrelated to complaints.”
Id. at ¶17.
plaintiff states that over the next couple of years, Blasius
refused to prescribe adequate pain medication. Id.
at ¶18. The plaintiff states that he continuously
informed Blasius that the medication she prescribed did not
relieve his pain. Id. The plaintiff states that
Blasius often ...