Curry v. Krembs et al

Filing 11

SCREENING ORDER granting 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee and dismissing defendant C Streel signed by Chief Judge William C Griesbach on 4/6/2018. Defendants are to file a responsive pleading within 60 days. WI DOC is directed to collect the balance of the filing fee in accordance with 28 U.S.C. § 1915(b)(2). (cc: all counsel via CM/ECF, Marlon Curry via U.S. Mail)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARLON KING CURRY,
Plaintiff,
v.

Case No. 18-C-235

DR. KREMBS & NURSE STREEL,
Defendants.

SCREENING ORDER

Plaintiff Marlon Curry, who is representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. Plaintiff is currently incarcerated at Green Bay
Correctional Institution, but was incarcerated at Racine Correctional Institution (RCI) during all
relevant times. This matter comes before the court on Plaintiff’s motion for leave to proceed without
prepaying the full filing fee.
MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed without prepayment of the full filing fee. Plaintiff 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 $12.00. Plaintiff’s motion for leave to proceed without prepaying the filing fee will be granted.

SCREENING OF THE COMPLAINT
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 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. 28 U.S.C. § 1915A(b). A claim
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); Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997).
To 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). The complaint must contain sufficient factual matter “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The court accepts the factual allegations as true and liberally construes them in the
plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint’s allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
ALLEGATIONS OF THE COMPLAINT
Plaintiff alleges that Dr. Krembs and Nurse Streel examined him on October 12, 2017, in
RCI’s Health Services Unit. ECF No. 1 at 2. Plaintiff alleges Dr. Krembs examined a large mass
on Plaintiff’s back, which he diagnosed as a lipoma. Id. Plaintiff alleges Dr. Krembs informed him
that he needed to have surgery to remove it at a hospital and that he would schedule the surgery to
be performed by him in four weeks. Id. Plaintiff alleges Dr. Krembs still has not performed the
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surgery and that he has been in pain since October. Id. at 2, 4. He also alleges the lipoma was
originally the size of an orange, but over the past four months it has grown to the size of a grapefruit.
Id. at 4.
THE COURT ’S ANALYSIS
In order to 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. BuchananMoore 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).
Plaintiff’s claim is predicated on the principle adopted by the Supreme Court in Estelle v. Gamble
that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain’ proscribed by the Eighth Amendment.” 429 U.S. 97, 104 (1976). The
principle derives from the fact that “[a]n inmate must rely on prison authorities to treat his medical
needs; if the authorities fail to do so, those needs will not be met.” Id. at 103.
To demonstrate deliberate indifference, a plaintiff must show “actual knowledge by the
officials and guards of the existence of the substantial risk and that the officials had considered the
possibility that the risk could cause serious harm.” Washington v. LaPorte Cty. Sheriff’s Dept., 306
F.3d 515, 518 (7th Cir. 2002) (citing Farmer, 511 U.S. at 834). Stating this another way, a plaintiff
must demonstrate that he had an objectively serious medical condition and that the defendants were
subjectively aware of and consciously disregarded that condition. Farmer, 511 U.S. at 837. A
medical need is considered sufficiently serious if the inmate’s condition “has been diagnosed by a
physician mandating treatment or . . . is so obvious that even a lay person would perceive the need
for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citations omitted).
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Severe pain is considered a serious medical need which if untreated, may give rise to an Eighth
Amendment claim. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (“A significant delay
in effective medical treatment also may support a claim of deliberate indifference, especially where
the result is prolonged and unnecessary pain.”). Ordinary negligence by prison officials, however,
is not enough to demonstrate an Eighth Amendment violation. Washington, 306 F.3d at 518.
Moreover, it is not enough to show that prison officials merely failed to act reasonably. Gibbs v.
Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995).
According to an online medical resource, lipoma’s are the most common tumor to form
beneath the skin. They grow when a lump of fat starts to grow in the soft tissue of the body, and
are particularly common in middle-aged men and women. Because they normally don’t hurt, the
usual treatment is to leave them alone. They can cause pain, however, if they bump up against
nearby nerves or have blood vessels running through them. What is a Lipoma?, WEBMD ,
https://www.webmd.com/skin-problems-and-treatments/what-is-a-lipoma#1 (last visited Apr. 6,
2018).
If all this is true, then Plaintiff’s claim of severe pain may be questionable. But my screening
decision must be based on the allegations of the complaint, and courts are not free to supplement the
record with online medical sources. See ABA MODEL CODE OF JUDICIAL CONDUCT Canon 2 r. 2.9
cmt. 6 (AM . BAR ASS’N 2008) (“The prohibition against a judge investigating the facts in a matter
extends to information available in all mediums, including electronic.”). Reading Plaintiff’s claim
liberally, as I must do at this stage of the proceedings, and accepting as true his allegations, which
I also must do, Plaintiff has sufficiently stated a claim against Dr. Krembs for deliberate indifference
to his lipoma and pain. Plaintiff has alleged that Dr. Krembs recognize his lipoma and the need for
surgery, but has not yet scheduled it for almost six months. It may be that ultimately, it will be
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shown that the surgery was not as urgent as Plaintiff alleges, but at this stage of the proceedings,
Plaintiff has sufficiently stated a claim against Dr. Krembs for deliberate indifference.
Plaintiff has not stated a claim against Nurse Streel. Aside from being present when Dr.
Krembs first diagnosed Plaintiff’s lipoma, Plaintiff makes no allegations against Nurse Streel.
Furthermore, the fact that Nurse Streel responded to several Health Service Requests is not sufficient
to state a claim of deliberate indifference. Nurse Streel responded that she would schedule Plaintiff
to be seen by Dr. Krembs. ECF No. 1-1 at 5, 7. Scheduling an appointment to be treated is the
opposite of deliberate indifference.
In sum, the court finds that the plaintiff may proceed on a claim of deliberate indifference
against Dr. Krembs but may not proceed on a claim against Nurse Streel.
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS ALSO ORDERED that Plaintiff’s claim against Defendant Streel is DISMISSED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of plaintiff’s complaint and this order are
being electronically sent today to the Wisconsin Department of Justice for service on the state
defendants.
IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the defendants shall file a responsive pleading to the
complaint.

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IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $338 balance of the filing fee by collecting monthly payments
from the plaintiff’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 the plaintiff is
transferred to another institution, the transferring institution shall forward a copy of this Order along
with plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate 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, pursuant to the Prisoner E-Filing Program, the plaintiff
shall 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 in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh
Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility.
If the plaintiff is no longer incarcerated at a Prisoner E-Filing Program institution, he will be required
to submit all correspondence and legal material to:
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

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
The plaintiff 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. Therefore, failure to provide your correct address could result in dismissal of
your case for failure to prosecute.
Dated at Green Bay, Wisconsin this 6th

day of April, 2018.

s/William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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