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Virgil v. Racine County Jail Health Service Medical Department

United States District Court, E.D. Wisconsin

February 5, 2019

EDDIE LAMONT VIRGIL, Plaintiff,
v.
RACINE COUNTY JAIL HEALTH SERVICE MEDICAL DEPARTMENT, Defendant.

          SCREENING ORDER

          William C. Griesbach, Chief Judge

         Plaintiff Eddie Lamont Virgil, a pro se inmate at the Racine County Jail, filed a complaint under 42 U.S.C. § 1983 alleging that the defendant violated his constitutional rights by failing to treat his dental pain. This matter is before the court on Virgil's motion to proceed without prepaying of the filing fee, ECF No. 2, and for screening of his complaint, ECF No. 1.

         This case is currently assigned to U.S. Magistrate Judge David E. Jones; however, because not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was randomly referred to a U.S. District Court judge for the limited purpose of screening the complaint. Thus, this order resolves Virgil's motion and screens his complaint.

         Motion to Proceed Without Prepayment of the Filing Fee

          The Prison Litigation Reform Act applies to this case because the plaintiff 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. § 1915(b). Once the plaintiff pays the initial partial filing fee the court may allow him to pay the balance of the $350.00 filing fee over time through deductions from his prisoner account. Id.

         On December 27, 2018, the court ordered Virgil to pay an initial partial filing fee of $3.66. ECF No. 5. Virgil submitted a payment of $4.00 on January 24, 2019. Consequently, the court will grant Virgil's motion. He will be required to pay the remainder of the $350.00 filing fee over time in the manner described at the end of this Order.

         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. § 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 the plaintiff 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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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 the plaintiff'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. The Plaintiff's Allegations

         Virgil alleges that since November 29, 2018, he has been experiencing extreme pain in his mouth and swelling of his face due to a hole in one of his back-left teeth. He states that the hole has caused the entire left side of his face to swell and that he rates the pain from the hole at a level of ten. He specifically states that “it hurts behind [his] ear” and his “lip has no feeling.” ECF No. 1 at 4.

         Virgil asserts that he wrote to the health services unit (HSU) about the problem on December 1, 2018. On December 2, 2018, he alleges Nurse Amanda (last name unknown) started him on medication for the pain and swelling by giving him two pills for the swelling and two pills for the pain. He states he was told that more medication would come later that day on the night cart. Virgil ...


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