Flores v. Kenosha Visitng Nurse Association

Filing 25

ORDER signed by Judge Rudolph T. Randa on 4/22/2014 GRANTING 2 Motion for Leave to Proceed in forma pauperis. Plaintiff to file amended pleading by 5/19/2014; Kenosha County Sheriff to collect $340.55 balance of filing fee from Plaintiff's prison trust account. (cc: via US mail to Pedro Flores at Kenosha County Detention Center, Kenosha County Sheriff, Corey Finkelmeyer-Asst. AG) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

PEDRO FLORES, SR.,
Plaintiff,
-vs-

Case No.

13-CV-1133

KENOSHA VISITING NURSE ASSOCIATION,
Defendant.

SCREENING ORDER

The plaintiff, who is confined at Kenosha County Detention Center, filed a pro
se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court on the plaintiff’s petition to proceed in forma pauperis. He has been
assessed and paid an initial partial filing fee of $9.45.
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). The court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir.
2003) (citations omitted).
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). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting 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. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

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In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
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)); see also Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
According to the complaint, on June 18, 2013, the plaintiff noticed itching and
red bumps on his body. Kenosha County Detention Center (KCDC) medical staff told him
it was a heat rash and gave him hydrocortisone cream for itching. There has been a scabies
outbreak at KCDC and the plaintiff asserts that he contracted scabies.
Since June 18, 2013, the plaintiff has been suffering with itching, red bumps
all over his body. KCDC nursing staff have given him hydrocortisone cream, triamcinolone

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cream, permethrin cream, and prednisone pills for treatment. The treatment is not helping.
The plaintiff advised medical staff but they stopped answering his medical slips. He alleges
that he is suffering a lot.
The plaintiff claims that KCDC medical staff deliberately ignored his medical
needs and misdiagnosed him. According to the plaintiff, staff is not treating him for scabies
and his situation has worsened. For relief, he seeks monetary damages as well as an
investigation into the scabies outbreak at the KCDC.
The plaintiff states a deliberate indifference to a serious medical need claim.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Fields v. Smith, 653 F.3d 550, 554 (7th Cir.
2011); see also Ciccone v. Sapp, 238 Fed. Appx. 487, 490 (11th Cir. 2007) (“scabies could
be deemed objectively serious”); Dusenbery v. United States, 208 Fed. Appx. 180, 182-83
(3d Cir. 2006) (defendant health care provider could be held liable for a violation of inmate’s
constitutional rights if he believed that the inmate had scabies and deliberately did not treat
the disorder).
However, the Kenosha Visiting Nurse Association is not a suable defendant.
If the plaintiff wants to proceed on a claim that his rights were violated pursuant to a policy
or custom at KCDC, he should name Kenosha County as a defendant and also identify the
policy or custom. See Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91
(1978) (in order to prevail against a county, the plaintiff would have to demonstrate that he
suffered a deprivation of his constitutional rights based on some official policy, widespread

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custom, or deliberate act of a county decision maker of the municipality or department). In
addition, if the plaintiff wants to proceed against individual KCDC staff members, he must
name the staff members as defendants and allege how they were personally involved in his
claim. See Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.2009) (Section 1983 makes public
employees liable “for their own misdeeds but not for anyone else’s.”); see also George v.
Smith, 507 F.3d 605, 609 (7th Cir. 2007).
If the plaintiff wants to proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein. Such amended complaint must be
filed on or before May 19, 2014. Failure to file an amended complaint within this time
period may result in dismissal of this action.
The plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.” The amended
complaint supersedes the prior complaint and must be complete in itself without reference
to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the appellate court emphasized that in
such instances, the “prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted). If an amended complaint is received,
it will be screened pursuant to 28 U.S.C. § 1915A.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket # 2) be and hereby is granted.

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IT IS FURTHER ORDERED that on or before May 19, 2014, the plaintiff
shall file an amended pleading curing the defects in the original complaint as described
herein.
IT IS FURTHER ORDERED that the Kenosha County Sheriff or his
designee shall collect from the plaintiff’s prisoner trust account the $340.55 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.
IT IS ALSO ORDERED that copies of this order be sent to the Kenosha
County Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin
Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable Rudolph T. Randa
% 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

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will only delay the processing of the matter.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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