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Oswald v. Department of Corrections

United States District Court, E.D. Wisconsin

June 21, 2018

DANIEL PERRY OSWALD, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, SCOTT WALKER, BRIAN FOSTER, JEFFERY MANLOVE, BELINDA SCHRUBBE, MCCREEDY, MICHEAL CHARLES, CHRISTINE DEYOUNG, NANCY KAMPUIS, STADTMUELLER, JOHN/JANE DOES, WEBER, and DR. KELLEY, Defendants.

         DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING MOTION (UNSIGNED) TO REQUEST TO PAY THE FILING FEE FROM RELEASE ACCOUNT (DKT. NO. 7), GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DKT. NO. 8), SCREENING THE AMENDED COMPLAINT AND DEFERRING RULING ON THE PLAINTIFF'S MOTION FOR PRELMINARY INJUNCTION (DKT. NO. 10)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, who is representing himself, is a prisoner at Kettle Moraine Correctional Institution. He filed this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2. 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. This order resolves the plaintiff's motion and screens his complaint.

         I. Motion for Leave to Proceed without Prepayment of Filing Fee (Dkt. No. 2)

         The PLRA allows an incarcerated plaintiff to proceed with his lawsuit without prepaying the case 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 October 24, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $2.61. Dkt. No. 5. The court received that fee on November 7, 2017. Accordingly, the court will grant the plaintiff's motion. He will be required to pay the remainder of the filing fee over time in the manner explained at the end of this Order.

         The plaintiff has requested that he be allowed to pay the remainder of the filing fee from his release account rather than from his regular account. Dkt. No. 1 at 18; Dkt. No. 7. The court will not grant this request. The PLRA requires the court to collect filing fees from a “prisoner's account.” 28 U.S.C. §1915(b). The term “prisoner's account” encompasses both a prisoner's release account and general account. Spence v. McCaughtry, 46 F.Supp.2d 861, 862 (E.D. Wis. 1999). However, “given the purpose of the release account to provide funds to the prisoner upon his or her release from incarceration, the Court does not deem it prudent to routinely focus on the release account as the initial source of funds to satisfy the filing fee payment requirements of the PLRA.” Smith v. Huibregtse, 151 F.Supp.2d 1040, 1042 (E.D. Wis. 2001). The court will order that the institution deduct future filing fee payments from the plaintiff's regular account.

         II. Motion for Leave to File Amended Complaint (Dkt. No. 8)

         The plaintiff's original complaint was nineteen pages long, and named thirteen defendants: The Department of Corrections, Governor Scott Walker, Warden Brian Foster, Dr. Jeffrey Manlove, Belinda Schrubbe, John Doe McCreedy, Micheal Charles, Christine DeYoung, Nancy Kampuis, Jane Doe “for the WCI Special Needs Comm., ” John Doe “for the WCI Special Needs Comm., ” Jane Doe Stadtmueller, RHU director Doe and Dr. Weber. Dkt. No. 1 at 1. The proposed amended complaint is twenty-one pages long, and adds “Dr. (Doe) Kelley.” Dkt. No. 9. Because the court had not yet screened the original complaint, the court will grant the plaintiff's motion for leave to amend, will treat the amended complaint as the operative complaint, and will screen the amended complaint.

         III. Screening of the Plaintiff's Amended Complaint (Dkt. No. 9)

         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

         On September 5, 2014, defendant Dr. Jeffery Manlove diagnosed the plaintiff with vertigo. Dkt. No. 9 at ¶18. Dr. Manlove prescribed daily medication and gave the plaintiff a cane to help the plaintiff stabilize himself when a dizzy spell occurred. Id. at ¶¶19-20. According to the plaintiff, Manlove told the plaintiff that he hoped the cane would prevent “some falls, ” but that if the plaintiff found that he required an elevator pass, he should request one by writing out a medical slip and “he would be accommodated.” Id. at ¶21. Five days later, the plaintiff requested an elevator pass because his dizzy spells made him afraid to go up and down the stairs. Id. at ¶22.

         Two days after making the request, Nurse Schaffer (who is not a defendant) had an appointment with the plaintiff to discuss MRI results. Id. at ¶24. At the appointment, she also addressed the plaintiff's request for an elevator pass. Id. Nurse Schaffer consulted with defendant Belinda Schrubbe, the Health Services Manager. Id. According to the plaintiff, Schrubbe denied the plaintiff's request even though she knew (1) he had vertigo, (2) Manlove had prescribed medication and given the plaintiff a cane, (3) the plaintiff had a lower-tier restriction with no stairs, and (4) he had almost fallen down stairs after becoming dizzy. Id. at ¶25-26.

         A few days later, the plaintiff had a psychological services appointment with defendant Micheal Charles, the plaintiff's mental health provider. Id. at ¶27. While climbing the stairs to get to his appointment, the plaintiff started to feel dizzy. Id. at ¶28. When he got to the top of the stairs, Charles reached out and braced the plaintiff against the wall to prevent him from falling. Id.

         The plaintiff states that he spoke to Charles about his fears of falling during his vertigo episodes. Id. at ¶29. The plaintiff states that he asked Charles to intervene with Health Services about an elevator pass. Id. The plaintiff asserts that Charles refused, but that he agreed to make a note in the plaintiff's records. Id.

         At the end of the appointment, the plaintiff states that he and Charles walked toward the exit, which is at the top of three flights of stairs. Id. at ¶30. The plaintiff alleges that he asked Charles to let him use the elevator (which was right next to the stairs) rather than the stairs. Id. at ¶21. Charles allegedly said no, even though he had allowed the plaintiff to use the elevator for an entire month before he received his cane. Id. at ¶30-31.

         As the plaintiff descended the first of the three flights of stairs, he became dizzy on the landing between the first and second flights. Id. at ¶32. The plaintiff explains that he tried to stabilize himself with the railing and his cane, but he was unable to. Id. at ¶32-33. The plaintiff states that he fell face-first down about fifteen stairs, and laid unconscious at the bottom for an unknown period of time. Id. at ¶33. The plaintiff asserts that he ended up being taken to the Health Services Unit (HSU) for extreme pain in his lower back, neck, wrist and elbow. Id. at ¶34.

         After the fall, defendant Nurse Christine DeYoung examined the plaintiff. Id. at ¶38. The plaintiff alleges that she refused to contact the doctor and refused to try to get an elevator pass for the plaintiff. Id.

         The plaintiff explains that after this fall, he experienced extreme headaches, vomiting and dizziness. Id. at ¶39. The plaintiff states that he also was in extreme pain for many days after the fall and that he has back spasms and pain to this day. Id. at ¶39. The plaintiff states that he contacted Schrubbe directly and informed her that he had fallen down the stairs as a result of not having an elevator pass. Id. at ¶41.

         Two days later, on September 17, 2014, Nurse Schaffner (who is not a defendant) examined the plaintiff following his complaints of dizziness, fatigue, vomiting and extreme pain following the fall. Id. at ¶42. Nurse Schaffner placed the plaintiff on the list to see the doctor. Id. at ¶42. Less than a week later, Nurse Slinger (who is not a defendant) informed the plaintiff that he was experiencing post-concussion syndrome due to a concussion he suffered as a result of the fall. Id. at ΒΆ44. One ...


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