United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge.
plaintiff, who is currently serving a state prison sentence
at Waupun Correctional Institution (WCI) and representing
himself, filed a complaint under 42 U.S.C. § 1983,
seeking monetary damages for negligence from the Dodge
Correctional Institution (DCI) healthcare staff. The case
comes before the court on Plaintiff's motion for leave to
proceed without prepaying the full filing fee and to screen
to Proceed without Prepayment of the Filing Fee
plaintiff has requested leave to proceed without prepayment
of the full filing fee (in forma pauperis). A
prisoner plaintiff proceeding in forma pauperis is
required to pay the full amount of the $350.00 filing fee
over time. See 28 U.S.C. § 1915(b)(1). The
plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing of his complaint, as required under 28
U.S.C. § 1915(a)(2), and has been assessed and paid an
initial partial filing fee of $38.36. The plaintiff's
motion for leave to proceed without prepaying the filing fee
will be granted.
of the Complaint
court is required 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 or portion thereof if the
prisoner has raised 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). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
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plaintiff was admitted to DCI on September 9, 2016. During
intake, the plaintiff was examined and prescribed Molixcam to
treat his planters fasciitis. In December of 2016, the
plaintiff was transferred to WCI. The plaintiff states that
he continued to take Meloxicam for approximately sixteen
months. In January of 2018, in response to the
plaintiff's difficulties with walking and standing
upright, the plaintiff requested to see a nurse who had him
rushed to Waupun Memorial Hospital. The plaintiff was
operated on immediately as he had an ulcerated gall bladder,
ulcerated small intestine, and peritonitis-an infection
caused by the ulcers. The surgeon allegedly inquired why the
plaintiff was taking Meloxicam and stated that it is not the
correct medication to treat planters fasciitis and is also
known to cause ulcers. The plaintiff spent three weeks in the
hospital recovering followed by two months in the Dodge
Infirmary. During this time he was fed by an IV and received
March of 2018 the plaintiff returned to WCI. While there, the
plaintiff asked Nurse Ann York about Meloxican and she
allegedly stated that it is known to cause ulcers. The
plaintiff states that his treatment has left him with a
distended stomach for which he wears an abdominal binder to
hold in and that he experiences pain and discomfort when he
moves from laying down to an upright position. The plaintiff
also states that he recently developed a hernia that is
attributable to his prior ulcer surgery. Plaintiff is seeking
monetary damages “because of the negligence by the
healthcare staff at Dodge Correctional in prescribing me a
medication that was an inappropriate drug . . . .” ECF
No. 1 at 4.
courts are courts of limited jurisdiction. In general,
federal courts have jurisdiction over cases that arise under
federal law or involve disputes between citizens of different
States where the amount in controversy exceeds $75, 000. 28
U.S.C. §§ 1331, 1332. In his own words, the
plaintiff has asserted a claim for negligence against the
health care staff of DCI. Negligence is a common law claim
that arises under state law. Since the plaintiff is serving a
sentence in a Wisconsin correctional institution, it is
unlikely that the dispute is between citizens of different
States. It thus follows that this court lacks jurisdiction
over the plaintiff's case.
state prisoners who sue in federal court bring claims under
42 U.S.C. § 1983. To state a claim under § 1983, a
plaintiff must allege a person acting under color of state
law violated rights secured by the Constitution and laws of
the United States. 42 U.S.C. § 1983; West v.
Atkins, 487 U.S. 42, 48 (1988). Denial of, or deliberate
indifference to, a prisoner's serious medical needs can
amount to a violation of the Eighth Amendment's
proscription of cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). But deliberate
indifference is more than an inadvertent failure to provide
medical care or negligence in treating a medical condition.
Id. at 105-07; see also Billman v. Ind.
Dep't of Corr., 56 F.3d 785 (7th Cir. 1995). To
prevail on a claim for deliberate indifference, a plaintiff
must show “something approaching a total unconcern for
[his] welfare in the face of serious risks, or a conscious,
culpable refusal to prevent harm.” Duane v.
Lane, 959 F.2d 673, 677 (7th Cir. 1992) (citing
McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991)).
The defendant must have known of and disregarded an
“excessive risk” to the inmate's health or
safety. Sellers v. Henman, 41 F.3d 1100, 1102 (7th
state a claim under § 1983, a prisoner must also name
the individual who violated his federal rights. Section 1983
applies to “persons” and requires that the
plaintiff allege that a defendant was personally involved in
the claimed deprivations. See Kuhn v. Goodlow, 678
F.3d 552, 556 (7th Cir. 2012) (individual must have
“caused or participated in an alleged constitutional
deprivation.” (citation omitted)); Hildebrandt v.
Ill. Dep't of Nat. Res., 347 F.3d 1014, 1039 (7th
Cir. 2003) (noting that a defendant may be personally liable
only “if the conduct causing the constitutional
deprivation occurs at [her] ...