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Balsewicz v. Kemper

United States District Court, E.D. Wisconsin

June 19, 2018

DOUGLAS BALSEWICZ, Plaintiff,
v.
PAUL KEMPER, LORA BLASIUS, MS. VASQUEZ, SUE NYGREN, A. HILTUNEN, LAURA FRAZIER, BRENDA LABELLE, JAMES LABELLE, and JOHN AND JANE DOES, Defendants.

         DECISION 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 COMPLAINT

          HON. PAMELA PEPPER United States District Judge

         The 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.

         I. 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)

         Because 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.

         Because 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.

         II. Screening of the Plaintiff's Complaint

         The law 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).

         To 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).

         To 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)).

         A. The Plaintiff's Allegations

         The 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.

         The 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.

         The 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 ...


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