Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gibson v. Chester

United States District Court, E.D. Wisconsin

September 23, 2019

LARRY DARNELL GIBSON, Plaintiff,
v.
DR. CHESTER, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING COMPLAINT (DKT. NO. 2) AND DENYING MOTION TO APPOINT COUNSEL (DKT. NO. 7)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The plaintiff, who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. This decision resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, his motion for appointment of counsel, dkt. no. 7, and screens his complaint, dkt. no. 1.

         I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

         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 lawsuit 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 January 9, 2019, the court ordered the plaintiff to pay an initial partial filing fee of $16.19. Dkt. No. 5. The court received that fee on January 25, 2019. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee, and will allow him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         Although the plaintiff has demonstrated that he does not have the money to pay the filing fee, the court must dismiss his complaint if he 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). For this reason, district courts “screen” complaints filed by self-represented plaintiffs to determine whether the complaint must be dismissed under these standards.

         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 state a claim 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 Plaintiff's Allegations

         The plaintiff, an inmate at the Kettle Moraine Correctional Institution, appears to suffer from epilepsy. Dkt. No. 1 at 3. He has sued eight defendants-Dr. Chester, Dr. McClean, C.O. Firkus, Sgt. McBride, “warden (John Doe) or Paul Kemper, ” John Doe Captain, Nurse Vaughn and Nurse “Kate.” Id. at 1-2.

         The plaintiff was housed at the Milwaukee Secure Detention Facility (MSDF) from March 5, 2018 through October 12, 2018. https://appsdoc.wi.gov/lop/detail.do. The plaintiff alleges that between March 5, 2018 and April 6, 2018, defendants Dr. Chester and Dr. McClean deprived him of his seizure medication, Levetiracetam. Id. at 3. The plaintiff says that McClean “was warned twice, ” and he even called the plaintiff to his office, but the plaintiff still did not receive his medication. Id. The plaintiff says that he suffered “many breakdowns and had numerous episodes” before being locked in his cell on April 5, 2018, where he had an epileptic seizure. Id. at 3-4. The plaintiff says that this seizure almost killed him, because defendants C.O. Firkus and Sgt. McBride overlooked his need for immediate help. Id. at 4.

         The plaintiff asserts that before his seizure, his eyes were “bloody red” and he knew he “was in bad shape.” Id. He pressed the emergency button in his cell, and Firkus asked what his emergency was. The plaintiff told Firkus his head was hurting and he couldn't breathe and asked Firkus to call for the nurse. Firkus told the plaintiff to fill out a form. Id. The plaintiff says that he asked for help “again, and again, and again.” Id. The plaintiff says that McBride said she would call a nurse but never did so (he does not say when this occurred). Id. at 4-5. The plaintiff believes that McBride and Firkus were angry that the plaintiff kept pushing his emergency call button. Id. at 5. He indicates that the man who was in the room with him kicked and banged for help, eventually getting an officer, who radioed for help. Id. The plaintiff asserts that he begged Firkus and McBride for help for what “had to be well over an hour, ” and that they left him to die. Id.

         The plaintiff says that he lost consciousness, and that there was blood everywhere; it is not clear whether this happened on the day he had the seizure at MSDF, or on another occasion he described, where he “fell out” in the back of his grandmother's house. Id. When he woke up, defendant Nurse Vaughn was standing over him. There was blood everywhere, and the plaintiff felt numb. His head was “busted open, ” and the bleeding wouldn't stop. The plaintiff couldn't stand up. Id. The plaintiff alleges that although the paramedics had arrived, Vaughn elected to try to stop the bleeding, which delayed the paramedics by fifteen to thirty ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.