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Cordova v. Foster

United States District Court, E.D. Wisconsin

May 3, 2019

ANTHONY V. CORDOVA, Plaintiff,
v.
BRIAN FOSTER AND C. MARCHANT, Defendants.

          ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Plaintiff Anthony V. Cordova is a Wisconsin state prisoner who is representing himself. He filed a complaint under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights by being deliberately indifferent to his serious medical needs, by retaliating against him, and by impeding his access to the courts while incarcerated at Waupun Correctional Institute. Cordova also filed a motion to proceed without prepaying the filing fee. The court has jurisdiction to resolve Cordova's motion and to screen the complaint based on the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         1. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that they pay an initial partial filing fee. On February 28, 2019, the court ordered Cordova to pay $1.37 as an initial partial filing fee. Cordova paid that fee on March 28, 2019. Accordingly, the court will grant his motion to proceed without prepaying the filing fee. He will have to pay the filing fee over time in accordance with this order.

         2. Screening of the Complaint

         2.1 Standard

         The 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).

         To state a cognizable claim under the federal notice pleading system, a 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). To state a claim for relief 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 deprivation was visited upon him by a person or persons 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 a 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)).

         2.2 The Complaint's Allegations

         Cordova has poor vision and cannot see up close. His prescription for eye glasses expired on September 20, 2018. A review of the exhibits indicates that Cordova broke his glasses. Cordova submitted a health service request on September 20, 2018, asking how much longer he would have to wait to see the optometrist. Defendant C. Marchant, the Health Services Unit (HSU) manager, responded and told him that he had been referred to see the optometrist.

         On January 4, 2019, Cordova submitted several requests to various officials asking for a magnifying glass so that he could read his Bible. Cordova sent a health service request, a request to the chaplain (which requested, in the alternative, that he be provided with tapes and a tape player so he could listen to the Bible), and a request to the school director. He also sent a request to defendant Brian Foster, the warden at Waupun, asking to use his release account to purchase new glasses. He also needs his glasses to do his legal work. After nothing came from the requests, Cordova sent a request to his social worker on January 8, 2019. She responded and said it was not something for which she could provide help. On January 31, 2019, Cordova submitted an information request to Foster, asking for the HSU manager's name.

         Cordova's health care provider previously prescribed him Excedrin for migraines. When Marchant provided him with aspirin instead, he sent notice that he was going to file a complaint and then a civil lawsuit. He alleges that, because of this prior incident, Marchant is retaliating against him by moving his name to the bottom of the list to see the optometrist. Cordova alleges that he informed both Foster ...


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