Clayborne v. Zerbst
| Decision Date | 13 October 2022 |
| Docket Number | 22-cv-145-pp |
| Parties | JACK A. CLAYBORNE, Plaintiff, v. NURSE ZERBST, DOCTOR BROWN, HEALTH SERVICES ADMINISTRATOR JAMES MATTHEWS, WELLPATH MEDICAL PROVIDER, CAPTAIN GABOR, DEPUTY JAIL ADMINISTRATOR LEWANDOWSKI, and JAIL ADMINISTRATOR WOLLENHAUPT Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 3), DENYING AS MOOT MOTION FOR EXTENSION OF TIME TO PAY INITIAL PARTIAL FILING FEE (DKT. NO. 13) AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
Jack A Clayborne, who is incarcerated at U.S. Penitentiary McCreary in Pine Knot, Kentucky and who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants failed to provide adequate medical treatment for his shoulder injury and pain while he was detained at the Waukesha County Jail. This decision resolves the plaintiff's motions for leave to proceed without prepaying the filing fee, dkt. no. 3, and for an extension of time to pay the initial partial filing fee, dkt. no. 13, and screens his complaint, dkt. no. 1.
The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA lets the court allow an incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the incarcerated person must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.
On April 6, 2022, the court ordered the plaintiff to pay an initial partial filing fee of $18.47. Dkt. No. 10. The court granted the plaintiff's first request (Dkt. No. 11) to extend that deadline. Dkt. No. 12. The plaintiff requested a second extension of time to pay the initial partial filing fee. Dkt. No. 13. On June 13, 2022, however, the court received the initial partial filing fee. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the remainder of the filing fee over time in the manner explained at the end of this order. The court will deny as moot the plaintiff's second motion for an extension of time.
Under the PLRA, the court must screen complaints brought by incarcerated persons seeking relief from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the incarcerated plaintiff raises 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).
In determining whether the complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, “accepted as true, to ‘state a claim to relief 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 for relief under 42 U.S.C. §1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court liberally construes complaints filed by plaintiffs who are representing themselves and holds such complaints to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
At the time he filed the complaint, the plaintiff was incarcerated at Waukesha County Jail. Dkt. No. 1 at 2, 22. The complaint names as defendants Nurse Zerbst and Doctor Brown, both of whom allegedly worked at the jail and for Wellpath Medical Provider (also named as a defendant). Id. at 12. The complaint also names Waukesha County Jail Health Services Administrator James Matthews, Captain Gabor, Deputy Jail Administrator Lewandowksi and Jail Administrator Wollenhaupt. Id. The plaintiff has sued all defendants in their official and individual capacities. Id. at 19.
The complaint alleges that sometime in 2018, the plaintiff was injured “during a beating/excessive use of force [he] received from HIDTA officers.” Id. at 2.[1] The plaintiff says he was taken to a hospital for an evaluation and x-ray. Id. Officials then transferred the plaintiff to Milwaukee County Jail, where he saw medical personnel about his injuries. Id. at 2. Unspecified medical staff prescribed him medicine for head, neck, shoulder and back pain. Id. at 2-3. They also x-rayed the plaintiff's shoulder a second time and prescribed physical therapy for a possible tendon or muscle injury. Id. at 3.
In September 2019, after completing only two therapy sessions, the plaintiff was transferred to Dodge County Detention Facility. Id. There, the plaintiff explained to Doctor Godiwalla (not a defendant) and unspecified medical staff that at Milwaukee County Jail, he had been taking pain medication and receiving therapy for his shoulder. Id. Godiwalla prescribed the plaintiff ibuprofen but no therapy. Id. at 3-4. The plaintiff later explained to Godiwalla that the ibuprofen was not “fixing the problems” with his shoulder and that he still was in pain. Id. at 4. The plaintiff was switched to an arthritis medication and told “to try for about 6-months.” Id. The plaintiff alleges that he followed those instructions, but that the medication did not work. Id.
On March 9, 2021, the plaintiff told Nurse Practitioner Debra Knisbeck (not a defendant) that his medication was not addressing whatever was wrong with his shoulder or the resulting pain. Id. The plaintiff again was given ibuprofen and told “that there was nothing to be done.” Id. On June 9, 2021, the plaintiff saw Doctor Christina Ann Stetcher Boryczka (not a defendant). Id. at 4, 6. She told the plaintiff “that there was nothing to be done except doing the same things [he'd] been trying, like taking the Medication, stretching, rotating exercises etc., etc.” Id. at 6. The plaintiff says that he explained to Stretcher Boryczka repeatedly that those treatments were not fixing whatever was wrong with his shoulder and that he still was in pain. Id. The plaintiff alleges that he filed an inmate grievance about his medical treatment, but that Sgt. J. Polsin, Hundt, Jail Administrator Brugger and Sgt. Kuehl-none of whom are defendants-“all supported and endorsed the Deliberate Indifference and acts committed by Doctor Godiwalla, Debra Knisbeck and Christina Ann Stetcher Boryczka.”[2] Id.
On September 22, 2021, the plaintiff was transferred to the Waukesha County Jail. Id. at 8. On October 1, 2021, he told Nurse Zerbst “of the History of [his] shoulder problems;” on October 12, 2021, he saw Zerbst and Doctor Brown and recounted the issues again. Id. He alleges that Zerbst and Brown “have done nothing except advise [him] to take Tylenol twice a day (later added Ibuprofen), and to do rotating exercises, and stretching exercises.” Id. The plaintiff told Zerbst and Brown that he had been trying those things at Dodge County Detention Center and that the pain medication was neither taking the pain away nor addressing whatever was wrong with his shoulder. Id. He said that he needed someone with experience to look at his shoulder, but Brown merely told him to perform the same exercises and take the prescribed medication. Id. at 10. The plaintiff says he “exhausted available remedies,” but says that Lewandowski (on October 18, 2021) and Wollenhaupt (on October 27, 2021) “both support and endorse the Deliberate Indifference and Acts committed by Nurse Zerbst and Doctor Brown, And the Health Services Administrator James Matthews.” Id.
The plaintiff alleges that around the end of November or early December 2021, he was taken off his pain medication. Id. at 13. He says he wrote to medical staff two or three times asking for stronger medication, but that he received no response. Id. The plaintiff believes that he was denied pain medication “on purpose and in retaliation for [his] participation in the grievance process.” Id. After two weeks without pain medication, the plaintiff filed grievances. Id. Lewandowski and Captain Gabor responded to his grievances but denied that he had ever requested medication from medical staff. Id.
The plaintiff says he believes his shoulder is dislocated because it “constantly pops/cracks all the way from [his] right shoulder to [his] left shoulder (possibly [his] collarbone).” Id. at 15. The plaintiff says the shoulder “hurts and feels as though it's popping in and out of place all day for no reason.” Id. He sa...
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