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Tucker v. Cox

United States District Court, E.D. Wisconsin

September 20, 2019

DR. COX, J. PERTTU, and TOBIAS TURON, Defendants.


          HON. PAMELA PEPPER United States District Judge

         Plaintiff 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.

         I. 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 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.

         On July 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.

         II. Screening of the Complaint

         A. Standard

         The law 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. §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). 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) (citations omitted).

         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 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).

         In 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.

         To 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)).

         B. The Facts in the Complaint

         1. Medical care

         The 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 treatment.” Id.

         Three 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.

         On 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 abscess.” Id.

         2. Inmate Grievance

         The 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 ...

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