United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge, United States District
Damien Green, who is currently serving a state prison
sentence at Wisconsin Secure Program Facility and
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
This matter comes before the court on Plaintiff’s
motion for leave to proceed without prepaying the full filing
fee and to screen the complaint.
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
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). Plaintiff has filed a certified
copy of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2). On August 9,
2019, the court waived the initial partial filing fee and
directed Plaintiff to advise the court whether he wished to
voluntarily dismiss the case within 21 days. Plaintiff has
not moved to dismiss the case. As a result, Plaintiff’s
motion for leave to proceed without prepaying the filing fee
will be granted and the court will screen the complaint.
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, 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). 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
plaintiff’s 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
February 22, 2019, Plaintiff was transferred from Columbia
Correctional Institution to Waupun Correctional Institution.
Prior to the transfer, Plaintiff had many offsite
appointments scheduled, including surgery for his foot.
Plaintiff claims the defendants canceled his foot surgery at
the Divine Savior Hospital. Plaintiff filed a health services
request to ask Health Services Unit (HSU) staff why his
surgery was canceled and to inform staff about his
excruciating pain. Nurse Block advised Plaintiff at an
appointment that Nurse Practitioner Jean Pierre canceled the
surgery so that they could coordinate with the security
department, which would be responsible for taking Plaintiff
to the appointment. Plaintiff advised Nurse Block that he had
waited two years for the surgery and asked to speak to the
doctor or nurse practitioner. Nurse Block did not allow him
to talk to a doctor or nurse practitioner. Plaintiff alleges
he wrote to HSU everyday about his pain and suffering. His
right foot would swell up to the point where he could not
walk. He claims that he was not given pain medication, only
acetaminophen, which did not alleviate his pain.
March 22, 2019, Plaintiff wrote HSU requesting to see his
provider because he was in pain. Later that day, Plaintiff
saw Dr. Kron. Plaintiff reported to Dr. Kron that he was
scheduled for surgery with a podiatrist but WCI canceled the
appointment. He also told Dr. Kron that the podiatrist
prescribed Gabapentin, but he had not received it. Dr. Kron
responded that he would not order Gabapentin for Plaintiff
and provided Plaintiff with another medication to treat his
pain. Plaintiff claims this medication made his head hurt and
did not relieve his pain. Dr. Kron stated that he would not
send Plaintiff to the Divine Savior Hospital for the foot
surgery and instead would send him to Waupun Hospital to see
its foot doctor. On April 18, 2019, Plaintiff presented to
the foot doctor at Waupun Hospital. The doctor took x-rays,
noted that Plaintiff’s bone had “popped
out” of his foot, and ordered that Plaintiff be sent to
the doctor originally scheduled to do the foot surgery.
Compl. at 7, Dkt. No. 1. The doctor also ordered T-3 for pain
and gout medication. Once Plaintiff returned to WCI, Nurse
Pierre refused to give him the medication that the doctor had
ordered. WCI called the podiatrist at the Divine Savior
Hospital. The podiatrist stated he would not do the surgery
because WCI cancelled the appointment. WCI then contacted the
UW Hospital to schedule the foot surgery. Plaintiff’s
surgery has not been scheduled with UW Hospital.
addition, Plaintiff claims that Dr. Kron prevented Plaintiff
from getting a catheter every day and only provided a
catheter once a week. Plaintiff also claims Dr. Kron stopped
Plaintiff’s supply of Betasept, which Plaintiff used to
wash his catheter and his hands. He claims that he began
peeing and throwing up blood but HSU staff failed to treat
him. He also alleges that HSU Manager Marchant failed to make
an appointment with UW Hospital to remove the mesh in his
stomach, even though he threw up blood and had pain in his
claims Marchant, Dr. Kron, Nurse Practitioner Pierre, and
Nurse Block acted with deliberate indifference when they
canceled his foot surgery upon his arrival to WCI. He also
asserts that Dr. Kron was deliberately indifferent when he
prevented Plaintiff from receiving a new catheter every day
and that Marchant was deliberately indifferent when she
failed to make an appointment with UW Hospital to remove the
mesh in Plaintiff’s stomach.
Eighth Amendment prohibits “cruel and unusual
punishments” and imposes a duty on prison officials to
take reasonable measures to guarantee an inmate’s
safety and to ensure that the inmate receives adequate
medical care. Farmer v. Brennan, 511 U.S. 823, 832
(1994). Prison officials violate the Constitution if they are
deliberately indifferent to a prisoner’s serious
medical needs. Id. (citing Estelle v.
Gamble, 429 U.S. 97, 103 (1976)). To state a claim based
on deficient medical care, a plaintiff must demonstrate that
he had an objectively serious medical condition and that the
defendants were subjectively aware of and consciously
disregarded that condition. Id. at 837. A medical
need is considered sufficiently serious if the inmate’s
condition “has been diagnosed ...