United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
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.
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.
Screening the Plaintiff's Complaint
Federal Screening Standard
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.
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).
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,
The Plaintiff's Allegations
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.
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.
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.
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 ...