United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
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.
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.
to Proceed Without Prepayment of the Filing Fee
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
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.
the Plaintiff's Complaint
Federal Screening Standard
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).
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).
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)).
The Plaintiff's Allegations
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.
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 ...