United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING
COMPLAINT AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
James Malcolm McDonald, who is representing himself, filed a
complaint on March 14, 2019 alleging that the defendants
violated his civil rights under 42 U.S.C. §1983 when
they refused to obtain a CPAP machine for him. Dkt. No. 1.
This decision resolves the plaintiff's motion to proceed
without prepaying the filing fee and screens his complaint.
Motion to Proceed without Prepaying the Filing
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 case
without prepaying the civil case filing fee, if he meets
certain conditions. One of those conditions is that the
plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, the court may allow the plaintiff to pay the
balance of the $350 filing fee over time, through deductions
from his prisoner account. Id.
March 26, 2019, the court ordered the plaintiff to pay an
initial partial filing fee of $5.54 by April 16, 2019. Dkt.
No. 7. The court received that initial partial filing fee of
$5.45 on April 15, 2019. The court notes that the
plaintiff's payment was $0.09 (nine cents) short. Because
the discrepancy is minimal, the court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filing fee and add the $0.09 to the balance
the plaintiff owes. He must pay the remainder of the filing
fee over time in the manner explained at the end of this
Screening of the Complaint
Federal law requires that the court 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 part
of it, 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.
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 a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
proceed 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
defendant was 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 N. Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court
will give a pro se plaintiff's 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,
Allegations in the Complaint
plaintiff alleges that while he was incarcerated in the
Kenosha County Jail and the Kenosha County Detention Center
for an unspecified date in 2016 through September 2016, the
defendants were deliberately indifferent to his medical
needs. Specifically, the plaintiff states that the defendants
failed to address his sleep apnea by refusing to provide him
a CPAP machine. Dkt. No. 1 at 2.
plaintiff alleges that he had an appointment with Dr. Dorrani
and Nurse Practitioner Swenson, though he does not state when
and where. Id. He says that he was asked to sign a
release of information for a copy of a sleep study that would
show that he had been diagnosed with “severe
obstructive sleep apnea, ” for which he needed a CPAP
machine (funded through his insurance provider in Illinois).
Id. at 2-3.
plaintiff claims that after the “medical
department” received the records, they transferred him
to the Kenosha County Jail “for observation for severe
obstructive sleep apthena [sic], ” but wouldn't
help him get the CPAP machine. Id. at 3. He does not
name the health department staff member who received the
records, or authorized his transfer to Kenosha Count, or who
refused to help him obtain the machine. He states that
someone (he doesn't say who) allowed him to make phone
calls to his doctor and his friends and family to try an
obtain a machine, but that none of his friends or family had
“the $1, 200 to purchase a machine, ” and that
Medicaid wouldn't pay for a machine in the state of
Wisconsin. Id. The plaintiff alleges that he
“communicated this on numerous occasions” (he
doesn't say to whom he communicated it) but says that he
“was told” (he doesn't say by whom) that
Kenosha County was not responsible for providing the machine,
and he would have to provide it himself. Id.
plaintiff alleges that as a result of not having the CPAP
machine, he “suffered headaches, increased blood
pressure, lack of sleep, and was very frustrated over the
lack of concern.” Id. He asserts that
eventually he was hospitalized for blood pressure and related
heart issues (he does not specify when), and he alleges that
his untreated sleep apnea put him at risk “for harm or
death.” Id. For relief, the plaintiff asks
that the defendants “change their policy for persons
who can ...