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Davis v. Harrispeters

United States District Court, E.D. Wisconsin

July 18, 2018

BRUCE TERRELL DAVIS, JR., Plaintiff,
v.
SUSAN HARRISPETERS and J. LUTSEY, Defendants.

          ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Plaintiff Bruce Terrell Davis, Jr., a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983. Davis alleges that the defendants Susan Harrispeters and J. Lutsey violated, and continue to violate, his civil rights by delaying his medical treatment. (ECF No. 1.) He asserts that they have failed to follow the recommendations of two doctors to schedule him for an appointment to see a back specialist for his spine condition. Id. Davis has also filed a motion for leave to proceed without prepayment of the filing fee (ECF No. 2). This order resolves Davis's motion and screens his complaint.

         I. Motion to Proceed Without Prepayment of the Filing Fee

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

         On April 3, 2018, the court ordered Davis to pay an initial partial filing fee of $8.57. (ECF No. 6.) Davis paid that fee on April 19, 2018. Therefore, the court will grant Davis's motion for leave to proceed without prepayment of the filing fee (ECF No. 2). Davis must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         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 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To state a claim for relief under 42 U.S.C. § 1983 Davis must allege that 1) he was deprived of a right secured by the Constitution or laws of the United States, and 2) the deprivation was caused by the defendants acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give Davis's pro se 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. Plaintiff's Allegations

         Davis alleges that he suffers from “[spondylolysis] and grade I spondylolisthesis, which [are] conditions in which a break in both sides of the ring allows the body of the vertebra to slip forward.” (ECF. No. 1 at 2.) He states that surgery is required in severe cases and that he had two MRI's to determine whether he needs surgery.

         Prior to being transferred to Green Bay Correctional Institution (GBCI) from Fox Lake Correctional Institution (FLCI), Davis states that he was scheduled for an appointment to see a physiatry doctor for his condition and the pain associated with it per the recommendation of UW neurosurgeon Dr. Mann. That appointment was cancelled due to Davis's transfer and flagged for rescheduling upon his arrival at GBCI.

         When he arrived at GBCI, Davis informed defendants Harrispeters and Lutsey of his condition and that his appointment with a physiatrist was to be rescheduled. At some point, however, he was sent to a hospital for another MRI, after which Dr. Douglas Chyatte recommended that he be ...


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