United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NO. 2),
SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1), DENYING
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 11) AND
DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (DKT.
PAMELA PEPPER United States District Judge
Gregory Tucker, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983. Tucker alleges
that the defendants violated his civil rights by providing
him inadequate medical care and delaying his medical
treatment. Dkt. No. 1. He also has filed a motion for leave
to proceed without prepaying the filing fee, dkt. no. 2, a
motion to appoint counsel, dkt. no. 11, and a motion for
default judgment, dkt. no. 14.
Motion to Proceed without Prepaying the Filing Fee
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 let an
incarcerated plaintiff proceed with his lawsuit without
prepaying the civil case filing fee as long as 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 him to pay the balance of the
$350 filing fee over time through deductions from his
prisoner account. Id.
3, 2018, the court ordered the plaintiff to pay an initial
partial filing fee of $13.49. Dkt. No. 7. The court received
that fee on July 16, 2018. The court will grant the
plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2. The plaintiff must
pay the remainder of the filing fee over time in the manner
explained at the end of this order.
Screening of the Complaint
requires the court 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 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.
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). The court may dismiss a claim as
frivolous where it is based on an indisputably meritless
legal theory or where the factual contentions are clearly
baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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 the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). 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).
considering whether a complaint states a claim, district
courts follow the principles in Twombly, by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. Second, if there are well-pleaded factual
allegations, the court must “assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that 1) someone deprived him of a right
secured by the Constitution or laws of the United States; and
2) whoever deprived him of that right 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 gives 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)).
The Facts in the Complaint
plaintiff alleges that on December 21, 2017, he got an
emergency pass to see the dentist; he saw Dr. Turon, who told
the plaintiff “that he may have a fractured
tooth.” Dkt. No. 1 at 2. Turon prescribed the plaintiff
“antibiotics and Tylenol with no further
days later, on December 24, 2017, the plaintiff saw a nurse
at the Health Services Unit (“HSU”), complaining
that “Tylenol and Naproxen was not effective for the
pain.” Id. The plaintiff asked to go to the
emergency room. Id. The HSU staff contacted Dr. Cox
and told him that the plaintiff continued to complain of
pain, even though he was taking Tylenol and Naproxen.
Id. at 2-3. The plaintiff says that Cox
“ignored” his request to be taken to the ER, and
his pain, instead telling the nurse to tell the plaintiff to
continue to “tak[e] pills until seen by [a]
dentist.” Id. at 3.
January 2, 2018, after what the plaintiff describes as twelve
days of “severe pain, ” the plaintiff saw a
dentist and had his fractured tooth repaired. Id. On
January 26, 2018, the plaintiff was seen by Dr. Mark Domrois
(not a defendant) to have the tooth located behind the
fractured tooth pulled because “it contained an
plaintiff states that on December 27, 2017, he filed an
inmate grievance regarding the lack of medical care he had
received on December 24, 2017. Id. He says that,
relying on the dental hygienist’s notes, Inmate
Complaint Examiner J. Perttu dismissed the complaint on
January 5, 2018. Id. The plaintiff asserts that
Perttu found that the staff had not ignored his complaints of