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McDonald v. Kenosha County Health Services

United States District Court, E.D. Wisconsin

June 7, 2019

JAMES MALCOLM MCDONALD, Plaintiff,
v.
KENOSHA COUNTY HEALTH SERVICES, DIRECTOR DENISE GILYANI, DOCTOR DORRANI, and NURSE PRACTITIONER SWENSON, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING COMPLAINT AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         A. Motion to Proceed without Prepaying the Filing Fee

         The 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.

         On 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 order.

         B. 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. §1915A(b).

         To 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).

         To 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, 106 (1976)).

         1. Allegations in the Complaint

         The 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.

         The 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.

         The 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.

         The 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 ...


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