Dunn v. Ziggler et al

Filing 25

SCREENING ORDER signed by Magistrate Judge William E Duffin on 2/8/2019. IT IS THEREFORE ORDERED that this action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has incurred a strike under 28 U.S.C. § 1915(g). (cc: all counsel, to plaintiff via USPS)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LARRY H. DUNN, JR.,
Plaintiff,
v.

Case No. 18-CV-549

SGT. ZIEGLER, et al.,
Defendants.
ORDER
Plaintiff Larry H. Dunn, Jr., a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983 alleging that his constitutional
rights were violated while he was an inmate at Oshkosh Correctional Institution. The
court screened his prior two complaints and both times found that Dunn failed to
state a claim upon which relief could be granted. It granted him a final opportunity
to further amend his complaint, which he has done.
As stated in the first two screening orders, the court has jurisdiction to screen
Dunn’s second amended complaint based on the Wisconsin Department of Justice’s
limited consent to the exercise of magistrate judge jurisdiction as set forth in the
Memorandum of Understanding between the Wisconsin Department of Justice and
this court. The court finds that Dunn’s second amended complaint does not state a
claim, and it will dismiss his case.

Screening of the Second Amended Complaint
The court is required to screen complaints, including amended 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).
To state a cognizable claim under the federal notice pleading system, a 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). 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 a 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)).

2

The Second Amended Complaint’s Allegations
Dunn is a prisoner at Oshkosh Correctional Institution. Dunn alleges that on
December 10, 2017, Sergeant Ziegler violated his, First, Eighth, and Fourteenth
Amendment rights. Ziegler had him placed in quarantine for chicken pox and logged
his assumed diagnosis into the Q-Unit log book. At that time, Dunn started the
ICERS (inmate complaint) process by notifying Ms. Hinz, the Q-Unit manager. On
December 11 or December 12, 2017, Ziegler shared Dunn’s medical issue (chicken
pox) in front of 10 to 12 other people in the noon medication line, including direct
quotes from his conversation with Hinz. Dunn alleges Ziegler violated Wisconsin’s
Health Information and Patient Portability Act (HIPPA).
According to Dunn, Ziegler did this because neither he nor his cellmate
actually had Ziegler’s prior diagnosis of scabies. Because of her actions, Dunn has
been accused of being unclean and having poor hygiene. This has resulted in Dunn
being harassed by staff and other inmates and has caused him to need medication.
Since filing this lawsuit, Dunn’s cell has been searched and documents relating
to the case have gone missing. The staff knows nothing about it. Dunn says this is
only an example of the harassment he has experienced since filing this lawsuit.
Analysis
Dunn’s second amended complaint raises several possible claims. First, a claim
based on Ziegler’s indifference to a risk of harm if she disclosed medical information.
Second, a claim based on Ziegler retaliating against Dunn. Third, a claim based on

3

retaliation he has experienced since filing this lawsuit. And, fourth, a claim based on
Wisconsin’s HIPPA law.
As stated previously, prisoners may have a limited right to privacy with respect
to their health information, Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995), but
that remains an open question, Massey v. Helman, 196 F.3d 727, 742 (7th Cir. 1999);
Franklin v. McCaughtry, 110 Fed. Appx. 715, 718–19 (7th Cir. 2004). To the extent
prisoners may have such a right, the Court of Appeals for the Seventh Circuit has
stated, in dicta, that a claim based on the disclosure of medical information would
arise under the Eighth Amendment’s proscription against cruel and unusual
punishment. Shields v. Dane County Jail Mental Health Dept., No. 17-cv-266-wmc,
2018 WL 5307807, *2 (W.D. Wis. Oct. 26, 2018) (citing Anderson, 72 F.3d at 523). The
Seventh Circuit explained that disclosing medical information for the sole purpose of
humiliating a prisoner could, ostensibly, constitute cruel and unusual punishment.
Anderson, 72 F.3d at 523. The Seventh Circuit has also entertained the idea that the
Fourteenth Amendment might provide some limited amount of privacy rights to
prisoners with respect to their medical information. Franklin, 110 Fed. App. At 718–
19.
Regardless of whether the right to medical information privacy arises under
the Fourteenth or Eighth Amendment, Dunn has not stated a claim because the
information disclosed is not the type that would implicate a constitutional right.
Dunn says Ziegler disclosed the fact that he had been diagnosed with chicken pox.
But the type of medical history information the disclosure of which the Seventh

4

Circuit opined could possibly violate the Eighth Amendment was information that is
“humiliating.” Anderson, 72 F.3d at 523. The court has stated, this time in the context
of the Fourteenth Amendment, that the disclosure that an inmate has a “cancerous
finger sore, diabetes, the need for eye glasses, and other fairly pedestrian maladies”
does not implicate the Constitution. Franklin, 110 Fed. Appx. at 719. A chicken pox
diagnosis does not carry the social stigma of being HIV positive (the medical
information discussed in Anderson), and falls closer to a sore, diabetes, or the need
for eyeglasses. See also Walker v. Saylor, No. 18-cv-442-bbc, 2018 WL 3998034, *3
(W.D. Wis. Aug. 21, 2018) (blood sugar numbers are not sensitive or embarrassing
medical information); Shields v. Dane Cnty. Jail Mental Health Dep’t, No. 17-cv-266wmc, 2018 WL 5307807 (W.D. Wis. Oct. 26, 2018) (allowing inmate to amend his
complaint to explain what mental health information he was required to share in
front of other inmates). The court finds that Ziegler’s disclosure of Dunn’s chicken pox
does not implicate his constitutional rights.
Dunn also alleges that Ziegler made the disclosure about his chicken pox
because neither he nor his cellmate had scabies, the diagnosis she originally
made―an allegation that sounds in retaliation. This allegation is without much
context in this version of Dunn’s complaint. In his original complaint, Dunn talked
more about Ziegler’s belief that he and his cellmate had scabies, which they did not,
and her actions afterwards. (ECF No. 1.) But Dunn has not alleged he engaged in a
protected activity, a necessary element of a retaliation claim. Hawkins v. Mitchell,
756 F.3d 983, 996 (7th Cir. 2014) (to state a claim for retaliation, a prisoner must

5

allege that “(1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation likely to deter such activity; and (3) the First Amendment
activity was at least a motivating factor in the decision to impose the deprivation.”).
Not having the illness Ziegler suspected is not a protected activity.
Dunn’s other potential retaliation claim also fails. He states that, since filing
this lawsuit, he has been retaliated against by prison officials. He gives the example
of his cell being searched and materials going missing. While filing a lawsuit is a
protected activity, he has not stated who retaliated against him. Section 1983 is a
personal liability statute, Kelly v. Municipal Courts of Marion County, Indiana, 97
F.3d 902, 909 (7th Cir. 1996), and without identifying who was―or might have
been―responsible, there is no one against whom to state a claim.
Finally, the court will not exercise supplemental jurisdiction over Dunn’s state
law-HIPAA claim because he has not stated a federal constitutional claim. See 28
U.S.C. § 1367.
ORDER
IT IS THEREFORE ORDERED that this action is DISMISSED pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this
inmate has incurred a “strike” under 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.

6

Dated at Milwaukee, Wisconsin this 8th day of February, 2019.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

7