UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
DAVID CHRISTOPHER LEE WALTON,
Plaintiff,
v. Case No. 22-C-479
VIRGINIA TRZEBIATOWSKI and HANNAH UTTER,
Defendants.
SCREENING ORDER
Plaintiff David Christopher Lee Walton, who is currently serving a state prison sentence at Green Bay Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983, alleging that his civil rights were violated. This matter comes before the Court on Walton’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE Walton has requested leave to proceed without prepaying the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). Walton has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. §1915(a)(2), and has been assessed and paid an initial partial filing fee of $11.96. Walton’s motion for leave to proceed without prepaying the filing fee will be granted. SCREENING OF THE COMPLAINT The Court has a duty to dismiss any complaint or portion thereof if a person proceeding in forma pauperis has raised any 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. §1915(e)(2). In reviewing a complaint, the Court must determine whether the complaint complies with the Federal Rules of Civil Procedure and states at least plausible claims for which relief may be granted. To state a cognizable claim under the federal notice pleading system, a 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 must be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well as when and where the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions or inactions caused. “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.” Id. at 555 (internal quotations omitted). ALLEGATIONS OF THE COMPLAINT Walton explains that he has been “dealing with daily head pains for the last year or so.” He states that his prior institution had been sending him to receive offsite medical treatment from a neurologist who ordered MRIs, EEGs, and prescribed pain medication. According to Walton,
he was started on a low dose and told that, if needed, adjustments would be made in three months. About a month before the expiration of the three-month period, Walton was transferred to Green Bay Correctional. In December 2021, a couple of months after his transfer, Walton allegedly began to write to Defendant APNP Virginia Trzebiatowski asking about his follow-up appointment with the neurologist. Walton asserts that Trzebiatowski told him that he would have to see her first. Walton alleges that, over the course of about five months, he wrote her several times complaining about his head pains, but she still has not seen him. He further alleges that he complained to Defendant Health Services Managers Hannah Utter, but she refused to address the issue and lied to the institution complaint office, stating that he was receiving treatment and that an appointment with the neurologist had been scheduled, even though it has not been. Walton
asserts that he is in daily pain and Trzebiatowski and Utter refuse to treat him. Dkt. No. 1 at 3-4. THE COURT’S ANALYSIS To state a claim under the Eighth Amendment, a plaintiff must allege that prison officials intentionally disregarded a known, objectively serious medical condition that posed an excessive risk to the plaintiff’s health. Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015) (citations omitted). “A delay in treatment may show deliberate indifference if it exacerbated [the plaintiff’s] injury or unnecessarily prolonged his pain.” Id. at 777-78. Construing Walton’s allegations broadly, which it must at this stage of the case, the Court will allow him to proceed on deliberate indifference claims against Trzebiatowski and Utter based on allegations that, for months, they have failed to address his complaints of head pain and have delayed scheduling the recommended follow-up appointment with the neurologist. IT IS THEREFORE ORDERED that Walton’s motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that, pursuant to an informal service agreement between the Wisconsin Department of Justice and this Court, copies of Walton’s complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on Virginia Trzebiatowski and Hannah Utter. IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this Court, Trzebiatowski and Utter shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. IT IS FURTHER ORDERED that the agency having custody of Walton shall collect from his institution trust account the $338.04 balance of the filing fee by collecting monthly payments from Walton’s prison trust account in an amount equal to 20% of the preceding month’s
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
DAVID CHRISTOPHER LEE WALTON,
Plaintiff,
v. Case No. 22-C-479
VIRGINIA TRZEBIATOWSKI and HANNAH UTTER,
Defendants.
SCREENING ORDER
Plaintiff David Christopher Lee Walton, who is currently serving a state prison sentence at Green Bay Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983, alleging that his civil rights were violated. This matter comes before the Court on Walton’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE Walton has requested leave to proceed without prepaying the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). Walton has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. §1915(a)(2), and has been assessed and paid an initial partial filing fee of $11.96. Walton’s motion for leave to proceed without prepaying the filing fee will be granted. SCREENING OF THE COMPLAINT The Court has a duty to dismiss any complaint or portion thereof if a person proceeding in forma pauperis has raised any 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. §1915(e)(2). In reviewing a complaint, the Court must determine whether the complaint complies with the Federal Rules of Civil Procedure and states at least plausible claims for which relief may be granted. To state a cognizable claim under the federal notice pleading system, a 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 must be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well as when and where the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions or inactions caused. “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.” Id. at 555 (internal quotations omitted). ALLEGATIONS OF THE COMPLAINT Walton explains that he has been “dealing with daily head pains for the last year or so.” He states that his prior institution had been sending him to receive offsite medical treatment from a neurologist who ordered MRIs, EEGs, and prescribed pain medication. According to Walton,
he was started on a low dose and told that, if needed, adjustments would be made in three months. About a month before the expiration of the three-month period, Walton was transferred to Green Bay Correctional. In December 2021, a couple of months after his transfer, Walton allegedly began to write to Defendant APNP Virginia Trzebiatowski asking about his follow-up appointment with the neurologist. Walton asserts that Trzebiatowski told him that he would have to see her first. Walton alleges that, over the course of about five months, he wrote her several times complaining about his head pains, but she still has not seen him. He further alleges that he complained to Defendant Health Services Managers Hannah Utter, but she refused to address the issue and lied to the institution complaint office, stating that he was receiving treatment and that an appointment with the neurologist had been scheduled, even though it has not been. Walton
asserts that he is in daily pain and Trzebiatowski and Utter refuse to treat him. Dkt. No. 1 at 3-4. THE COURT’S ANALYSIS To state a claim under the Eighth Amendment, a plaintiff must allege that prison officials intentionally disregarded a known, objectively serious medical condition that posed an excessive risk to the plaintiff’s health. Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015) (citations omitted). “A delay in treatment may show deliberate indifference if it exacerbated [the plaintiff’s] injury or unnecessarily prolonged his pain.” Id. at 777-78. Construing Walton’s allegations broadly, which it must at this stage of the case, the Court will allow him to proceed on deliberate indifference claims against Trzebiatowski and Utter based on allegations that, for months, they have failed to address his complaints of head pain and have delayed scheduling the recommended follow-up appointment with the neurologist. IT IS THEREFORE ORDERED that Walton’s motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that, pursuant to an informal service agreement between the Wisconsin Department of Justice and this Court, copies of Walton’s complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on Virginia Trzebiatowski and Hannah Utter. IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this Court, Trzebiatowski and Utter shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. IT IS FURTHER ORDERED that the agency having custody of Walton shall collect from his institution trust account the $338.04 balance of the filing fee by collecting monthly payments from Walton’s prison trust account in an amount equal to 20% of the preceding month’s
income credited to the prisoner’s trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). The payments shall be clearly identified by the case name and number assigned to this action. If Walton is transferred to another institution, the transferring institution shall forward a copy of this Order along with Walton’s remaining balance to the receiving institution. IT IS FURTHER ORDERED that a copy of this order be sent to the officer in charge of the agency where Walton is confined. IT IS FURTHER ORDERED that the parties may not begin discovery until after the Court enters a scheduling order setting deadlines for discovery and dispositive motions. IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing Program institutions must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution, and Oshkosh Correctional Institution. Plaintiffs who are inmates at all other prison facilities must submit the original document for each filing to the Court to the following address: Honorable William C. Griesbach c/o Office of the Clerk United States District Court Eastern District of Wisconsin 125 S. Jefferson Street, Suite 102 Green Bay, WI 54301 PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will only delay the processing of the matter. Walton is further advised that failure to make a timely submission may result in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court of any change of address. Failure to do so could result in orders or other information not being timely delivered, thus affecting the legal rights of the parties, including dismissal of this action. Dated at Green Bay, Wisconsin this 20th day of May, 2022. s/ William C. Griesbach William C. Griesbach United States District Judge