Mellon v. Aurora Medical Center

Filing 7

ORDER signed by Judge J.P. Stadtmueller on 8/28/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DISMISSING action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim; DIRECTING Clerk of Court to document that Plaintiff has incurred a "strike" under 28 U.S.C. § 1915(g); ORDERING agency having custody of plaintiff to COLLECT balance of the filing fee from Plaintiff's prison trust accoun t in accordance with this ORDER; and CERTIFYING that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless Plaintiff offers bonafide arguments supporting her appeal. (cc: all counsel; via mail to AAG Finkelmeyer, and to Joanne Mellon and Warden at Taycheedah Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOANNE MELLON,
Plaintiff,

v.

Case No. 17-CV-750-JPS

AURORA MEDICAL CENTER,
Defendant.

ORDER

Plaintiff Joanne (Danbrova) Mellon, who is incarcerated at
Taycheedah Correctional Institution, proceeds in this matter pro se. She filed
a complaint alleging that Defendant violated her federal rights. (Docket #1).
This matter comes before the court on Plaintiff’s petition to proceed without
prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $11.55. See 28 U.S.C. §
1915(b)(1).
The court must screen complaints brought by persons seeking to
proceed in forma pauperis. Id. § 1915(e)(2)(B). The court must dismiss a
complaint or portion thereof if the person 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. Id. § 1915(e)(2)(B)(i)-(iii).
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, 110910 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
Plaintiff is required to provide a “short and plain statement of the claim
showing that [she] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for Plaintiff to plead specific facts and her statement need only
“give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers mere “labels and conclusions” or a “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’s allegations
“must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
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

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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. Section 1983, a plaintiff
must allege that: 1) she was deprived of a right secured by the Constitution
or laws of the United States; and 2) the deprivation was visited upon her 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 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)).
Plaintiff alleges that she went to Defendant Aurora Medical Center’s
(“Aurora”) emergency department on April 13, 2016 complaining of a foot
injury. (Docket #1 at 2). She filed this action because she was dissatisfied
with the care she was provided. Id. at 2-5. Plaintiff seeks monetary damages
for “pain and suffering due to loss of leisure of normal activities, disruption
in employment and mental anguish[.]” Id. at 4.
Plaintiff’s complaint suffers from numerous defects, but one is
glaring and dispositive: the lack of a state actor. Plaintiff was not in custody
on April 13, 2016. Plaintiff’s complaint demonstrates as much; she took
herself to the emergency department and says her injury occurred at home.
Id. at 2. Further, publicly available records of the Wisconsin Department of
Corrections confirm that she was released on supervision from a prior
prison term on July 22, 2010, and was not incarcerated (upon revocation of
her supervised release) until October 26, 2016. See Wisconsin Department
of Corrections Offender Search, Offender Detail page for Joanne Mellon,
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available at: http://offender.doc.state.wi.us/lop/detail.do (last accessed
8/24/17); State of Wisconsin v. Joanne G. Mellon, 2009-CF-31, Manitowoc
County Circuit Court, Court Record Events (Entry of October 26, 2016
indicating that Plaintiff’s supervised release was revoked); State of
Wisconsin v. Joanne G. Danbrova, 2017-CF-87, Manitowoc County Circuit
Court, Court Record Events (new felony charge against Plaintiff filed on
February 22, 2017, for her 8th OWI committed on September 15, 2016), both
cases available at: https://wcca.wicourts.gov.
Aurora itself is, of course, a private hospital. Thus, Plaintiff has not
connected the alleged violation of her rights with any person acting under
the color of state law. See Buchanan-Moore, 570 F.3d at 827. Although
Plaintiff states that her complaint is made pursuant to federal law, (Docket
#1 at 4), the only relevant law would be constitutional. Without a state actor,
her claims cannot implicate constitutional protections. At best, Plaintiff may
have claims for medical malpractice, but those are state law claims over
which this federal court has no jurisdiction. See 28 U.S.C. §§ 1331, 1332.
Plaintiff’s complaint must, therefore, be dismissed.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)
for failure to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
Plaintiff has incurred a “strike” under 28 U.S.C. § 1915(g);

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IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from her institution trust account the 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 Plaintiff’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 Plaintiff is transferred to
another institution, county, state, or federal, 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 a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined;
IT IS FURTHER ORDERED that a copy of this order be sent to
Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department
of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857; and
THE COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
unless Plaintiff offers bonafide arguments supporting her appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of August, 2017.
BY THE COURT:

_____________________________
J. P. Stadtmueller
U.S. District Judge

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