Durley v. Hohenstern
| Decision Date | 23 February 2023 |
| Docket Number | 22-cv-1293-pp |
| Parties | TIMOTHY DURLEY, Plaintiff, v. ALLISON HOHENSTERN, CHERYL JEANPIERRE, ROBERT WEINMAN, ASHLEY HASELEU, JESSICA HOSFELP, MEGAN LEBERAK, WHITNEY PITZLIN, BRIAN TAPLIN, VICK GWENDOLYN, ANN YORK, JEREMIAH DAWSON, RANDALL HEPP, EMILY PROPSON, ROBERT RYMARKIEWICZ and YANA PUISH, 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. 2), DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DKT. NO 5), DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 8), DENYING AS MOOT PLAINTIFF'S SECOND MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 17), DENYING AS MOOT PLAINTIFF'S MOTION TO WAIVE PAYMENT OF INITIAL PARTIAL FILING FEE (DKT. NO. 23) AND SCREENING AMENDED COMPLAINT UNDER 28 U.S.C §1915A
Timothy Durley, an individual incarcerated at Waupun Correctional Institution who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants failed to provide adequate medical treatment and retaliated against him. On November 21, 2022, the court received the plaintiff's amended complaint. Dkt. No. 24. This decision resolves the plaintiff's motions for leave to proceed without prepaying the filing fee, dkt. nos. 2, 17, for a preliminary injunction, dkt. no. 5, to appoint counsel, dkt no. 8, and to waive payment of the initial partial filing fee, dkt. no. 23, and screens his amended complaint, dkt. no. 24.
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 without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the plaintiff 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 prison trust account. Id.
On November 17, 2022, the court ordered the plaintiff to pay an initial partial filing fee of $2.45 by December 8, 2022. Dkt. No. 21. The next day, the court received the plaintiff's first, incomplete motion to waive payment of the initial partial filing fee. Dkt. No. 23. The one-paragraph motion, which consisted of only the first page of the Prisoner Request to Proceed in District Court Without Prepaying the Full Filing Fee, does not explain why the plaintiff believed he could not pay the initial partial filing fee and merely requested that the court allow him to proceed without paying it. Id.
On November 30, 2022, the court received from the plaintiff a letter asking the court to allow him to proceed without paying the initial partial filing fee. Dkt. No. 25. Again, the plaintiff did not explain why he could not pay the initial partial filing fee, but he asked the court to “please see enclosed letter of 5 pages of why [the plaintiff] should be allow[ed] to proceed on both case# without paying partial filing fee, for case# 22-cv-1293 [and] case# 22-cv-1127.” Id. The five-page letter to which the plaintiff refers is docketed only in Case No. 22-cv-1127 at Dkt. No. 15. The court detailed the contents of that letter in the screening order in Case 22-cv-1127 at Dkt. No. 17.
Despite the plaintiff's motion and letters asserting that he was unable to pay the initial partial filing fee, the court received payment of the fee on December 8, 2022.[1] The court will grant the plaintiff's first motion for leave to proceed without prepaying the filing fee, dkt. no. 2, 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 leave to proceed without prepaying the filing fee, dkt. no. 17, and his motion to waive payment of the initial partial filing fee, dkt. no. 23.
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 person 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 amended 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, the amended 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 amended 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 that 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 construes liberally 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)).
The amended complaint names several defendants who work at Waupun: registered nurses Allison Hohenstern, Jessica Hosfelp, Megan Leberak, Whitney Pitzlin, Brian Taplin, Vick Gwendolyn and Ann York; Doctor Cheryl Jeanpierre; Health Services Unit (HSU) Manager Robert Weinman and Assistant Manager Ashley Haseleu; Maintenance Supervisor Jeremiah Dawson; Warden Randall Hepp; Deputy Warden Emily Propson; Restricted Housing Unit (RHU) Supervisor Robert Rymarkiewicz; and Security Director Yana Puish. Dkt. No. 24 at 1, 3. The plaintiff sues the defendants in their individual capacities. Id. at 1.
The plaintiff alleges that he was in the RHU at Waupun in May 2022. Id. at 4. He says that on May 4, 2022, he left Waupun for court in Brown County and returned on May 11, 2022. Id. When he returned, he experienced what he believed to be symptoms of COVID-19, including loss of smell, tightness and pain in his chest and breathing issues. Id. He wrote to the HSU asking to be seen for his symptoms, and Dr. Jeanpierre saw him on May 13, 2022. Id. Jeanpierre conducted an asthma assessment of the plaintiff and noted that he was wheezing. Id. She instructed Nurse Hohenstern to provide the plaintiff nebulizer treatment. Id. Hohenstern responded that the plaintiff would have to wait up to an hour for the treatment because she was treating another patient. Id. at 4, 6.
An hour later (during which time the plaintiff says he was in pain and having trouble breathing), Hohenstern told the plaintiff that HSU Manager Weinman had overridden Dr. Jeanpierre's recommendation that the plaintiff receive nebulizer treatment. Id. at 6. Weinman instead told Hohenstern to provide the plaintiff treatment from an aerochamber spacer, which the plaintiff says “is more effective than a nebulizer.” Id. The plaintiff told Hohenstern that the spacer does not work for him and worsens his asthma, and he said he had told Jeanpierre and Weinman that previously. Id. Hohenstern contacted Weinman and told him what the plaintiff had told her. Id. The plaintiff says Hohenstern called Weinman and relayed this fact to Weinman; the plaintiff says that when she hung up the phone, Hohenstern told him “with a very nasty attitude” that Weinman had repeated his instruction to “take the spacer” and had said that “no nebulizer is giving no more in ‘RHU.'” Id. The plaintiff still refused to take the spacer, saying it would worsen his asthma, and Hohenstern responded, “we[']re done here bye.” Id. The plaintiff returned to his cell still struggling with pain in his chest and difficulty breathing. Id.
On May 23, 2022, the plaintiff suffered an asthma attack that he says was caused by the hot and humid conditions at Waupun and another incarcerated person being sprayed with a chemical agent. Id. He says Nurse Pitzlin did not provide him nebulizer treatment for over thirty minutes. Id. He says that she instructed the plaintiff to first use the aerochamber spacer, but the plaintiff told her he already had used it in his cell. Id. Pitzlin told the plaintiff to take it again in front of her. Id. The plaintiff says he took the aerospace treatment in front of Pitzlin and Sgt. Dretzel (not a defendant), which he says caused him to overdose on the spacer and worsened his asthma. Id. at 6-7. Pitzlin told the plaintiff she would contact Weinman to request nebulizer treatment for the plaintiff, which she provided to the plaintiff...
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