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Heck v. Roese

United States District Court, E.D. Wisconsin

May 16, 2019

ROXANNE O. ROESE, Defendant.



         Plaintiff 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.


         The 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.


         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). 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).

         To 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).


         The 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.

         The 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.

         On 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 at 2.

         In 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.

         While 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." Id.

         The 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, she ...

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