United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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
Motion for Leave to Proceed without Prepayment of Filing Fee
(Dkt. No. 2)
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.
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.
Motion for Leave to File Amended Complaint (Dkt. No.
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.
Screening of the Plaintiff's Amended Complaint (Dkt. No.
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
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.
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.
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.
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.
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
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.
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.
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.
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 ¶44. One ...