United States District Court, E.D. Wisconsin
JAMES G. FREER, Plaintiff,
RENEE WALKER and UNKNOWN AGNESIAN HEALTH CARE NURSE, Defendants.
Stadtmueller, U.S. District Judge.
a prisoner proceeding pro se, filed a complaint in
the above-captioned action. (Docket #1). Plaintiff has also
filed a petition for leave to proceed in forma
pauperis. (Docket #2). The total cost of filing a civil
action is $400.00, which includes the $350.00 statutory
filing fee and a $50.00 administrative fee. However, the
$50.00 administrative fee does not apply to persons granted
in forma pauperis status. Pursuant to the Prison
Litigation Reform Act (“PLRA”), a prisoner
plaintiff proceeding in forma pauperis is required
to pay the statutory filing fee of $350.00 for any civil
action. See 28 U.S.C. Â§ 1915(b)(1).
the PLRA, the Court must assess an initial partial filing fee
of twenty percent of the average monthly deposits to the
plaintiff's account or average monthly balance in the
plaintiff's prison account for the six-month period
immediately preceding the filing of the complaint, whichever
is greater. Id. After the initial fee is paid, the
prisoner must make monthly payments of twenty percent of the
preceding month's income until the filing fee is paid in
full. Id. § 1915(b)(2). “The agency
having custody of the prisoner shall forward payments from
the prisoner's account to the Clerk of the Court each
time the amount in the account exceeds $10 until the filing
fees are paid.” Id.
the Court need not require Plaintiff to pay an initial
partial filing fee if it is clear, from the face of the
complaint, that the action is frivolous. The Court is
required to screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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.
Id. § 1915A(b).
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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
state a cognizable claim under the federal notice pleading
system, the 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). It is not
necessary for the plaintiff to plead specific facts; his
statement need only “‘give the defendant fair
notice of what the. . .claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘formulaic recitation of the elements of a cause
of action will not do.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a
complaint must contain sufficient factual matter, accepted as
true, “‘that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). “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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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. 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) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009);
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court
is obliged to give Plaintiff's pro se
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)).
alleges that nurse Renee Walker (“Walker”)
willfully abused him when she inserted an IV needle through
his vein. Plaintiff describes the needle action as
“into and out of (at the same time) my vein.” The
mis-directed needle caused him great pain, and he asked
Walker several times to stop, but she continued to try to
place the IV needle into his vein. At the end of the ordeal,
there was blood flowing down his wrist into a gauze bandage.
Walker dismissed his complaints by saying, “aren't
you a nervous nelly.” Another nurse watched the
exchange and neither said nor did anything.
asks to proceed on an Eighth Amendment right to medical care
claim. Prison officials violate this right when they
“display deliberate indifference to serious medical
needs of prisoners.” Greeno v. Daley, 414 F.3d
645, 652 (7th Cir. 2005) (quotation omitted). Deliberate
indifference claims contain both an objective and a
subjective component: the inmate “must first establish
that his medical condition is objectively,
‘sufficiently serious, '; and second, that prison
officials acted with a ‘sufficiently culpable state of
mind,' - i.e., that they both knew of and disregarded an
excessive risk to inmate health.” Lewis v.
McLean, 864 F.3d 556, 562-63 (7th Cir. 2017) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(internal citations omitted)). A serious medical need is one
“that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person
would perceive the need for a doctor's attention.”
Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir.
2007) (citations and quotations omitted). It need not be
life-threatening, “rather, it could be a condition that
would result in further significant injury or unnecessary and
wanton infliction of pain if not treated.” Roe v.
Elyea, 631 F.3d 843, 857, 861 (7th Cir. 2011) (listing
medical conditions that can be considered sufficiently
serious, including “a dislocated finger, a hernia,
arthritis, heartburn and vomiting, a broken wrist, and minor
burns sustained from lying in vomit.”).
has not alleged a sufficiently serious medical need, or that
Walker acted with the requisite state of mind. He describes a
situation in which a nurse attempted, several times, to
locate his vein in order to insert an IV. As a result of her
unsuccessful attempts, Plaintiff suffered pain and bled into
a gauze bandage. Plaintiff does not allege that he suffered
any complications that were ignored. Nor has he alleged facts
suggesting that Walker solely intended to cause him pain,
apart from the discomfort associated with the legitimate
medical treatment of inserting the IV. Moreover, the facts do
not suggest that the nurse left the bleeding and pain from
the IV untreated; that, if left untreated, the puncture wound
would have resulted in an “unnecessary and wanton
infliction of pain;” or that he did not need the IV at
all. See Elyea, 631 F.3d at 857. Here, the facts
indicate that Walker was actively treating Plaintiff for a
medical condition, that Plaintiff experienced some discomfort
during the attempt to insert an IV, and that Walker tried to
allay his concerns by calling him a “nervous
nelly.” The allegations in this complaint do not even
suggest negligence, much less a constitutional rights
violation. “Leave to amend need not be granted. . .if
it is clear that any amendment would be futile.”
Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir.
2013). His claim, therefore, will be dismissed without
IT IS ORDERED that Plaintiff's motion to
proceed in forma pauperis (Docket #2) be and the same is
IS FURTHER ORDERED that Plaintiff's motion for
an order allowing payment of partial filing fees from release
account (Docket #4) be and the same is hereby DENIED
as moot; and
IS FURTHER ORDERED that this case be and the same is