Bell v. Affinity Health Systems

Filing 7

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted. The clerk is directed to enter judgment accordingly. Any appeal from this matter would not be taken in good faith. Signed by Judge William C Griesbach on 07/12/2011. (cc: all counsel, via US mail to Frederico Bell)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FREDERICO J. BELL,
Plaintiff,
v.

Case No. 11-C-0599

AFFINITY HEALTH GREENVILLE,
Defendant.

ORDER

Plaintiff has filed an action in which he claims Affinity Health Greenville refused to fill his
prescription and refused to treat him. On July 6, 2011 this Court dismissed Plaintiff’s lawsuit for
failure to state a claim but allowed him thirty days to file an amended complaint. The Court also
granted Plaintiff’s request to proceed in forma pauperis provided he contribute $25 of the $350
filing fee before making any further filings. On July 11, 2011 Plaintiff filed an amended complaint
and submitted $25 to the clerk of courts.
Plaintiff’s amended complaint fails to state a claim and will therefore be dismissed – this
time with prejudice. As noted in this Court’s prior screening order, district courts are permitted to
screen every complaint, regardless of a plaintiff's fee status. 28 U.S.C. § 1915(e)(2)(B); Hoskins
v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999);
Griffin v. Milwaukee County, 369 Fed. Appx. 741, 743 (7th Cir. 2010). In screening a complaint
I must determine whether it complies with the Federal Rules of Civil Procedure and states at least
plausible claims for which relief may be granted. A complaint, or portion thereof, should be
dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt

that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him
to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41,
45-46 (1957)). In reviewing a complaint under this standard, the court must accept as true the
allegations of the complaint in question, Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740
(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in
the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The court is obliged to give
the plaintiff's pro se allegations, however inartfully pleaded, a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). With these standards in mind, I now turn to the allegations
of the amended complaint.
Plaintiff’s amended complaint again alleges that he received a prescription for pain
medication from an Affinity Health clinic on June 7, 2010. Before he could fill the prescription he
claims the script flew out of his car’s open window. He returned to the Affinity to have his
prescription re-issued and he alleges that the doctor refused to sign another prescription. He also
alleges that Affinity has since refused to treat him. (Am. Compl. 5.) Plaintiff now alleges that
“Affinity Health Greenville was negligent in providing a proper medical attention to a life
threatening situation.” (Id.)
Plaintiff’s amended complaint fails to state a claim over which this court has subject matter
jurisdiction. Plaintiff has no claim under 18 U.S.C. § 1983 because the Affinity Health Greenville
is not a state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“the
under-color-of-state-law element of §1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful”) (omitting citations and quotations). Plaintiff makes no
allegation that Affinity or its employees were acting in any way at the direction or behest of the
government. Moreover alleged negligence is not actionable under § 1983. Farmer v. Brennan, 511

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U.S. 825, 837-38 (1994); Daniels v. Williams, 474 U.S. 327, 328 (1986). Plaintiff’s amended
complaint makes no allegation that his race played any role in Affinity’s actions and therefore he
fails to state a claim of racial discrimination. See Jafree v. Barber, 689 F.2d 640 (7th Cir.1982).
Thus, even when considering Plaintiff’s complaint in a light most favorable to Plaintiff, I conclude
that Plaintiff has failed to state a claim against Defendants.
IT IS THEREFORE ORDERED that this action is dismissed with prejudice pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim upon which relief may be
granted.
IT IS FURTHER ORDERED that the clerk of court enter judgment accordingly.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
Dated this

12th

day of July, 2011.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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