United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE
Theresa Marie Heck, who is currently serving a state prison
sentence at Robert E. Ellsworth Correctional Center (REECC)
and representing herself, filed a complaint under 42 U.S .C.
§ 1983, alleging that the defendant, Roxanne Roese,
violated her civil rights by delaying the treatment of her
degenerative hip condition. This matter comes before the
court on the plaintiffs motion for leave to proceed without
prepaying the full filing fee and to screen the complaint.
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 her prison trust
account statement for the six-month period immediately
preceding the filing of her complaint, as required under 28
U.S.C. § 1915(a)(2), and was assessed an initial partial
filing fee of $17.75. The plaintiff submitted two letters,
Dkt. Nos. 14, 16, stating that she was having difficulties
getting the funds to pay for the initial partial filing fee.
After the Clerk contacted the establishment where Heck is
confined and was informed that Heck was under a 90- day no
work restriction and that she did not appear to have the
funds in her prison account to pay the initial partial filing
fee, the court subsequently waived the initial partial filing
fee a gave the plaintiff 21 days to notify the court whether
she wished to continue pursuing her claim. Dkt. No. 17. Two
days later the plaintiff submitted a check for $17.75. The
court will credit this amount towards the plaintiffs payment
of the full filing fee and, based on the plaintiffs
statements in her letters and submission of the check,
construe her actions as an indication that she wishes to
pursue her claim.
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 [she] 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 plaintiffs 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).
OF THE COMPLAINT
plaintiff states that she has been seeing Defendant Roxanne
Roese, who is a nurse practitioner at REECC, for treatment of
her degenerative hip condition; arthritis in her knees, neck,
and shoulder; and restless leg syndrome. In October of 2017,
an orthopedic physician performed a flouroscopically guided
injection on her right hip but not on her left. The
orthopedic physician also ordered that the plaintiff receive
a low bunk restriction.
plaintiff alleges that since January of 2018 she has been
requesting to have an injection performed on her left hip as
well due to the pain. When the plaintiff was seen by Roese
for an unrelated condition, the plaintiff discussed having
the injection done on the left side with Roese and was told
that an appointment would be made with an orthopedic
physician. Roese and other staff had only been treating the
plaintiffs pain with tylenol and ibuprofen, and she has not
been given a low bunk restriction.
February 1, 2018, the plaintiff received correspondence from
Roese stating, "No need to send to ortho, seen and appt.
was already 2 weeks ago, so it's been cancelled. No. low
bunk, able to stand and move effortlessly." Dkt. No. 1
March of 2018, the plaintiff requested to be seen by REECC
physician Dr. Misoslavic for hip/groin and neck issues. The
response to the plaintiffs request stated, "Your hips
already been addressed by nurse and N.P. Roese."
Id. at 3.
attending physical therapy for her neck in April of 2018, the
physical therapist noticed her hip/groin issues and advised
Roese to address the plaintiffs possible labrum tear. Roese
subsequently scheduled an appointment, set for May 17, 2018,
for the plaintiff with Dr. Goran Jankovics. Dr. Jankovics
order from that appointment states, "One more set of
injections. Patient aware of risks, but is in pain."
next day the plaintiff received correspondence from Roese
stating, "I don't have dictation from Dr.
Goran's appt with you, however, he definitely is
requesting injections are yearly. Try other interventions for
as long as can." Id. After the plaintiff
informed Roese that she and Dr. Jankovics discussed further
injections, Roese informed her that an appointment was
scheduled for late June. On June 13, 2018, Roese informed the
plaintiff that Dr. Jankovic advised against hip injections at
this time, that he is no longer taking inmate patients, and
that there would be a new doctor in the future. When the
plaintiff inquired as to when there would be a new doctor,