Ziemer v. Lehnert et al
Filing
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ORDER signed by Judge Lynn Adelman on 11/15/16 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering the warden of the institution where plaintiff is confined, or his designee, to collect from plaintiffs pr isoner trust account the $346.80 balance of the filing fee as set forth herein. Further ordering that copies of plaintiffs complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on defendants and that defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. See order. (cc: via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM ZIEMER,
Plaintiff,
v.
Case No. 16-CV-1372
DR. LEHNERT DDS, et al.,
Defendants.
ORDER
The plaintiff, William Ziemer, a Wisconsin state prisoner who is representing
himself, filed a civil rights complaint under 42 U.S.C. § 1983. This matter is before me
on plaintiff’s motion to proceed without prepayment of the filing fee and for screening of
his complaint, as required by the Prison Litigation Reform Act, 28 U.S.C. § 1915A(a).
Plaintiff’s Motion to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act gives courts discretion to allow prisoners to
proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply
with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the
prisoner pay an initial partial filing fee. On October 28, 2016, I ordered plaintiff to pay an
initial partial filing fee of $3.20. Plaintiff paid that fee on November 8, 2016. As such, I
will grant plaintiff’s motion to proceed without prepayment of the full filing fee; he must
pay the remainder of the filing fee as set forth at the end of this order.
Screening of Plaintiff’s Complaint
Upon an initial review of a complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, I must identify
cognizable claims and dismiss the complaint, or any part of it, if it “is frivolous,
malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary
relief from a defendant who is immune from such relief.” § 1915A(a), (b)(1)–(2). To state
a cognizable claim, a plaintiff need not provide “detailed factual allegations” but must
offer “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
“complaint must contain sufficient factual matter, 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
Twombly, 550 U.S. at 570). “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.” Buchanan-Moore v. County of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)).
Allegations in the Complaint
On February 19, 2016, while incarcerated at the Wisconsin Resource Center,
plaintiff gave his upper and lower denture plates to defendants Dr. Lehnert, the dentist,
and Ms. Stephenson, the dental assistant, for repair. Plaintiff utilizes full dental plates;
he has no teeth of his own.
From March to May 2016, plaintiff wrote several times to Lehnert, Stephenson,
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and defendant Dr. G. Monese (plaintiff’s psychiatrist and medical provider), complaining
of severe pain, bleeding gums, mouth sores, and deformed facial features as a result of
not having his dental plates. Plaintiff states that they took no action.
In May 2016 and again in June 2016, plaintiff was called to the dental department
for molds to be taken for new dentures. (It is unclear who called plaintiff to the dental
department or who took the molds.) When plaintiff asked why nothing was being done
to help him, he was told that Lehnert was on vacation. Finally, in July 2016, plaintiff
received new upper and lower denture plates, although he has been unable to use the
lower plate because it does not fit properly.
Plaintiff states that from February to July 2016, he was offered a soft diet and
orajel; however, he suffered (and continues to suffer) from mouth sores, bleeding gums,
pain, headaches, and deformed facial features as a result of not having his dentures.
Analysis
To state an Eighth Amendment claim based on deficient medical care, a plaintiff
must demonstrate two elements: 1) an objectively serious medical condition; and 2) an
official’s deliberate indifference to that condition. Arnett v. Webster, 658 F.3d 742, 750
(7th Cir. 2011) (citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)). Plaintiff
has sufficiently alleged that the defendants were deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment.
THEREFORE, IT IS ORDERED that plaintiff’s motion to proceed without
prepayment of the filing fee (Docket #2) is GRANTED.
IT IS ALSO ORDERED that the warden of the institution where plaintiff is
confined, or his designee, shall collect from plaintiff’s prisoner trust account the $346.80
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balance of the filing fee by collecting monthly payments from 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).
Payments shall be clearly identified by case name and number.
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 defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, defendants shall file a
responsive pleading to the complaint within sixty days of receiving electronic notice of
this order.
IT IS FURTHER ORDERED that plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter. As each filing will be electronically scanned and
entered on the docket upon receipt by the clerk, plaintiff need not mail copies to the
defendants. All defendants will be served electronically through the court’s electronic
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case filing system. Plaintiff should also retain a personal copy of each document filed
with the court.
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.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2016.
s/ Lynn Adelman
______________________________
Lynn Adelman
District Judge
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