Dunbar v. Edge et al

Filing 9

ORDER signed by Judge Lynn Adelman on 6/25/18. IT IS ORDERED that plaintiff's motion for leave to proceed without prepayment of the filing fee 2 is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay the $338.92 balance of the filing fee as he is able. IT IS FURTHER ORDERED that this case is DISMISSED with prejudice with respect to plaintiff's federal claims for failure to state a claim upon which relief may be granted and without prejudice with respect to plaintiffs state law claims (cc: all counsel, plaintiff, financial)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ARIEN JAMES DUNBAR,
Plaintiff,
v.

Case No. 18-C-665

BETH EDGE, T. WEST,
DR. SYED, CYNTHIA GRIFFIN,
SANDRA MCARDLE, K. MILLER,
JOLINDA WATERMAN,
GARY BOUGHTON, CATHY JESS,
JIM SCHWOCHERT,
BUREAU OF HEALTH SERVICES,
WISCONSIN PATIENTS COMPENSATION FUND,
and WISCONSIN BOARD OF NURSING,
Defendants.

ORDER
Plaintiff Arien Dunbar, who is representing himself, filed a complaint under 42
U.S.C. § 1983, alleging that defendants violated his civil rights. This case was originally
assigned to U.S. Magistrate Judge William Duffin; however, because not all parties
have had the opportunity to consent to magistrate judge jurisdiction, the case was
reassigned to a U.S. District Court judge for screening of the complaint.
The Prison Litigation Reform Act applies to this case because plaintiff was
incarcerated when he filed his complaint. 28 U.S.C. § 1915. That law allows an
incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee
as long as he meets certain conditions. One of those conditions is that the plaintiff pay
an initial partial filing fee. 28 U.S.C. § 1915(b). On May 2, 2018, Judge Duffin ordered
plaintiff to pay an initial partial filing fee of $11.08. Plaintiff paid the fee on June 4, 2018.
Accordingly, I will grant plaintiff’s motion to proceed without prepayment of the filing fee.

Since filing his complaint, plaintiff has been released from prison. Plaintiff must
still pay the remainder of the filing fee. He may do so over time, as he is able.
Federal Screening Standard
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).
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 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)).

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The Complaint’s Allegations
Plaintiff’s complaint, which contains more than 250 numbered paragraphs,
includes a significant number of allegations against individuals who he has not named
as defendants. Even if he had named those individuals as defendants, none of the
allegations against them give rise to a claim under the Constitution. As such, I will
address only those allegations that are relevant to the claims he seeks to state against
the named defendants.
The events alleged in plaintiff’s complaint occurred while he was incarcerated at
Wisconsin Secure Program Facility (WSPF). Prior to arriving at WSPF, plaintiff had
been examined by nurses at Jackson Correctional Institution in response to his
complaints about a rash that had developed on the back of his neck and that had begun
to spread to his face, shoulders, and chest. The nurses prescribed Triamcinolone cream
(used to reduce swelling, itching, and redness that can occur with a variety of skin
conditions, including eczema) and Dermarest lotion (a hydrocortisone and zinc complex
used

to

relieve

symptoms

associated

with

eczema).

See

https://www.webmd.com/drugs/2/drug-1456/triamcinolone-acetonide-topical/details and
http://www.dermarest.com/product-information/eczema-medicated-lotion

(last

visited

June 21, 2018).
Plaintiff explains that, after arriving at WSPF, the rash continued to worsen and
spread. On April 7, 2017, plaintiff contacted health services about the rash. He was
seen the next day by defendant nurse Beth Edge. She diagnosed plaintiff with “altered
skin integrity” and prescribed Dermarest lotion. (ECF No. 1 at ¶ 28-34.) The next day,

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plaintiff was again seen in health services and an appointment was scheduled for
plaintiff to see an off-site Advanced Care provider.
Plaintiff alleges that his condition continued to deteriorate. About a month later,
on May 9, 2016, plaintiff was seen by defendant Dr. Syed, who examined the rash and
prescribed Triamcinolone cream. Plaintiff complained several times to health services
that the Triamcinolone cream Dr. Syed prescribed was not the same Triamcinolone
cream that the nurse at his previous institution had prescribed.
A couple of weeks later, on May 23, 2016, plaintiff had a Telemed visit with
defendant APNP Cynthia Griffin, who was an off-site specialist. She asked him about
his condition, but because it was a Telemed visit, she did not examine the rash in
person. Griffin renewed Dr. Syed’s prescription for Triamcinolone cream.
Plaintiff alleges that his condition continued to worsen. About sixteen months
after his Telemed visit with Griffin, on September 18, 2017, plaintiff reviewed his
medical file in an attempt to discover the medication that health services at his previous
institution had prescribed. He alleges that he noticed the medication Miconazole Nitrate
cream (used to treat fungal skin infections) mentioned on a form dated October 7, 2015.
See

https://www.webmd.com/drugs/2/drug-3841-787/miconazole-nitrate-topical/

miconazole-topical/details (last visited June 21, 2018).
That same day, plaintiff contacted health services and asked about the
medication. The next day, defendant Sandra McArdle responded in writing. She noted
that she did not see a prescription order from that date, nor were there any provider
notes from that date. Nonetheless, she stated that she would order the medication. She

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did not examine plaintiff in person, nor did she ask him if he had any allergies to
medications.
On October 3, 2017, plaintiff received the Miconazole Nitrate cream. A week
later, he contacted health services and informed staff it was not the same medication he
had received at his previous institution. He said he could tell because the packaging
was different. The next day, on October 11, 2017, defendant ACP K. Miller responded
to plaintiff and recommended that he try Menphor skin cream (used to relieve pain and
itching associated with minor skin irritations). See https://dailymed.nlm.nih.gov/
dailymed/drugInfo.cfm?setid=1294e5d7-7208-4312-bcc7-e0c093309559

(last

visited

June 21, 2018). Miller requested the Menphor prescription the next day. She did not
address his comment that the Miconazole Nitrate cream was different from what he had
been using at his previous institution.
On October 14, 2017, plaintiff used the Miconazole Nitrate cream, despite having
complained that it was the wrong medication. He alleges that he suffered an allergic
reaction (swelling, discoloration, hyperpigmentation, redness, itchiness) and notified
health services.
The next day, defendant nurse B. Edge responded to plaintiff in writing. She
provided him with the Menphor and stated that he already had a prescription for
Dermarest. She did not address the issue of his allergic reaction to the Miconazole
Nitrate cream. Plaintiff alleges that he wrote to health services several times about the
allergic reaction.
On October 24, 2017, nurse R. Tracy (who is not defendant) responded to
plaintiff and told him that she had tried to get him to come down to health services. She
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instructed him to sign a refusal form if he was in fact refusing treatment. Plaintiff did not
sign the form.
On November 1, 2017, plaintiff contacted defendant warden Gary Boughton
asking about the procedures for medical care. Boughton responded the next day and
directed him to defendant health services manager Jolinda Waterman. He then
contacted Waterman about the different kinds of Miconazole cream. That same day, on
November 2, 2017, health services provided him with information about the different
types of Miconazole cream as well as educational information regarding its uses and
symptoms of allergic reactions.
A few days later, on November 5, 2017, plaintiff contacted Waterman again and
asked for information about the different kinds of Menphor skin cream. That same day,
nurse Kramer (who is not a defendant) responded that she knows about only one kind
of Menphor, or at least, WSPF provides only one kind.
On November 9, 2017, plaintiff contacted Boughton about health services’ failure
to address his allergic reaction. Plaintiff was seen by health services the next day.
Defendant T. West talked to plaintiff about his allergic reaction and told him to stop
using the Menphor lotion. A couple of days later, Boughton responded to plaintiff and
told him he had spoken with Waterman, who told Boughton that plaintiff had already
been seen in health services.
Less than a week later, on November 14, 2017, plaintiff was seen by McArdle.
She performed an examination and diagnosed an allergic reaction to the Miconazole
Nitrate cream. McArdle crossed out NKDA (no known diagnosed allergies) on plaintiff’s
medical forms and inserted Miconazole. She then prescribed Hydrocortisone (used to
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treat a variety of skin conditions, including rash and eczema) and Clotrimazole (used to
treat fungal infections). See https://www.webmd.com/drugs/2/drug-148380/anti-itchhydrocortisone-topical/details

and

https://www.webmd.com/drugs/2/drug-4316/

clotrimazole-topical/details (last visited June 21, 2018). McArdle also scheduled plaintiff
to see an offsite dermatologist.
Beginning the next day, plaintiff began to contact health services about the
prescribed medications and the referral to a dermatologist. On November 28, 2017, a
nurse (who is not a defendant) responded that health services was checking on the
prescriptions and that an appointment with a dermatologist had been scheduled.
Plaintiff received the medication later that day.
On December 16, 2017, plaintiff contacted Waterman and asked for information
about the different kinds of Clotrimazole and Hydrocortisone creams and about the
symptoms of an allergic reaction. He also informed her that the medications were not
working. Waterman responded the next day and gave him the requested information.
On December 18, 2017, plaintiff contacted Waterman and asked about the
Department of Adult Institutions (DAI) policy that determined whether and when inmates
with medical needs should be seen in person and how health services evaluates the
severity of an inmate’s condition. That same day, McArdle contacted plaintiff and told
him he had an appointment scheduled with a dermatologist in less than a month. Three
days later, Boughton contacted plaintiff and gave him information about DAI policies
and how health services assesses inmates’ requests for medical treatment. Waterman
also responded to plaintiff’s questions about DAI policies on December 28, 2017.

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On January 18, 2018, plaintiff was examined by Dr. Yao (who is not a
defendant), an off-site dermatologist. He diagnosed plaintiff with eczema/dry skin. He
prescribed Triamcinolone cream, Hydrocortisone cream, Diphenhydroxyzine, and gentle
skin care. He also gave plaintiff samples of Sarna and Aveeno eczema creams. Health
services ordered Triamcinolone cream and Diphenhydroxyzine the next day.
About ten days later, on January 28, 2018, plaintiff contacted health services
complaining that the Triamcinolone cream he received was the same as what he had
received before and that it was ineffective. He also complained that he had not received
the other medications prescribed by Dr. Yao. Two days later, a nurse who is not a
defendant responded that she did not see a prescription for the medication he was
requesting. McArdle also responded and stated that she too did not see a prescription
for the requested medication. She told plaintiff to let her know if he wanted to try a
different medication.
On February 20, 2018, he complained to health services that the Triamcinolone
cream was still not working. He also asked for more Aveeno skin cream, which Dr. Yao
had given him a sample of. The next day, McArdle responded that Aveeno is not
available but she would order Eucerin skin cream for him.
In March 2018, plaintiff, after reviewing his medical file, asked why his records no
longer indicated an allergy to Miconazole. McArdle responded and explained to him that
she had to take that off as an allergy in order to get the pharmacy to give him another
medication that had been prescribed to him.
Plaintiff was released from custody on May 1, 2018.

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Analysis
“Prison officials violate the Eighth Amendment’s proscription against cruel and
unusual punishment when their conduct demonstrates 'deliberate indifference to serious
medical needs of prisoners.'" Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)
(citations omitted). This standard contains both an objective element (that the medical
needs be sufficiently serious) and a subjective element (that the officials act with a
sufficiently culpable state of mind). Id.
Plaintiff alleges that he suffers from a chronic, itchy and painful rash (most likely
eczema) and that he had an allergic reaction to a topical cream that resulted in swelling,
discoloration, hyperpigmentation, redness, and itchiness. While these allegations satisfy
the objective element of the deliberate indifference standard, I find that they do not give
rise to a reasonable inference that any of the defendants acted with a sufficiently
culpable state of mind.
Plaintiff’s allegations show that health services nurses (Edge, McArdle, Miller,
and West) promptly responded to plaintiff’s complaints about his condition. Often, he
received a written response the day after he submitted a health services request and,
when deemed necessary, he was physically examined. Further, they either changed
plaintiff’s prescribed creams and lotions in response to his complaints that what he was
using was not working or they scheduled appointments with off-site specialists. This
conduct does not demonstrate deliberate indifference.

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More specifically, plaintiff alleges that McArdle showed deliberate indifference
when she decided to give him Miconazole Nitrate cream without examining him and
without any indication that it had been previously prescribed. I do not agree with
plaintiff’s conclusion. Plaintiff’s skin condition was well documented in his medical
records; without an indication that his condition had changed, there was no need for her
to physically examine him. Plaintiff asked for a different medicated cream to treat his
condition, so McArdle, who had access to plaintiff’s medical records, decided to
prescribe an antifungal cream. Her willingness to try new medications to address
plaintiff’s condition is the opposite of deliberate indifference.
Plaintiff also highlights that she did not ask him whether he had any allergies, but
the fact that plaintiff had no known allegories at that time was documented in his
medical file. Further, plaintiff fails to state a failure to warn claim because he has not
alleged that his risk of developing an allergic reaction was substantial enough that a
reasonable patient would have expected to have been apprised of the potential side
effects, nor does he allege that McArdle knew the risk of his having an allergic reaction
to be substantial. See Phillips v. Wexford Health Sources, Inc., 522 Fed.Appx. 364, 367
(7th Cir. 2013).
Plaintiff also alleges that Edge ignored his notice to health services that he was
having an allergic reaction to the Miconazole Nitrate cream. Putting aside the fact that
he chose to use the Miconazole Nitrate cream after he complained to health services
that it was not the right medicated lotion, his allegations do not support his conclusion
that Edge ignored his complaints. Plaintiff explains that, after using Miconazole Nitrate
cream he experienced red, swollen, itchy and somewhat discolored skin. While irritating,
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these symptoms are not so severe that an immediate examination was required. Edge
responded in writing to plaintiff’s written request the day after he wrote to health
services and gave him the previously prescribed Manphor, a lotion used to relieve pain
and itching—two of the symptoms he indicated he was experiencing as a result of his
allergic reaction.
In addition, plaintiff alleges that a little more than a week later, a non-defendant
nurse contacted him and told him that she had been trying to get him to come down to
health services and, if he was refusing treatment he needed to sign the enclosed refusal
form. Although he did not sign the form, the mere fact that medical staff had been
unsuccessfully trying to get him to come to health services for an examination,
undermines his assertion that his complaints of an allergic reaction were ignored.
Plaintiff also complains about the amount of time between him being referred to
an off-site specialist and him being seen by that specialist. Plaintiff’s allegations indicate
that the nurses promptly (within days) attempted to schedule appointments with off-site
providers. That is all they could do. They do not have control over the openings in an
off-site provider’s schedule, so they are not personally responsible for the lag between
setting the appointment and the actual appointment. In any event, plaintiff’s condition,
while uncomfortable, was not so serious that it required an immediate appointment, nor
does plaintiff allege that it worsened as a result of the delay.
Similarly, plaintiff’s allegations fail to state a claim for deliberate indifference
against Waterman, the health services supervisor, and Boughton, the warden.
According to plaintiff, both of these defendants were very responsive to his requests for
information, often responding on the same day or the day after he would submit a
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request. In addition, on those occasions when Boughton did not have the information he
needed to address plaintiff’s requests, he would either direct plaintiff to Waterman or
would get the information from Waterman and then respond directly to plaintiff. Their
responsiveness does not support a claim for deliberate indifference.
Plaintiff also fails to state a claim against Dr. Syed and Griffin. Plaintiff complains
that they both prescribed the “wrong” Triamcinolone cream. By “wrong” plaintiff means
that it was not the same Triamcinolone cream that he had been prescribed while at his
previous institution. Syed and Griffin, however, were not bound by what others had
previously prescribed. They both exercised their medical judgment and prescribed the
medicated cream they thought best to address plaintiff condition. Plaintiff’s
disagreement with their decisions is insufficient to state a claim. See Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005) (“[N]either medical malpractice nor a mere
disagreement with a doctor’s medical judgment amounts to deliberate indifference.”).
Plaintiff also complains that because his visit with Griffin was a Telemed visit, she
did not examine him in person. The Constitution does not require that all medical
examinations be in person. Griffin was able to consult with plaintiff and ask him and the
nurse who was present questions about his condition. Griffin prescribed plaintiff a
medicated cream to address his condition. These allegations do not give rise to a
deliberate indifference claim.
Plaintiff also sues Waterman, Boughton, the Wisconsin Board of Nursing, the
Wisconsin Patients Compensation Fund, Jess, and Schwochert in connection with a
number of DAI policies that he alleges are constitutionally deficient. I will not allow
plaintiff to proceed on these claims. Because plaintiff fails to state a claim against any of
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the individuals who he alleges followed these policies, his allegations do not support a
conclusion that he was injured by these policies. In any event, the Eleventh Amendment
bars plaintiff from asserting claims against state agencies and bars claims for money
damages against state officials in their official capacities. See Wynn v. Southward, 251
F.3d 588, 592 (7th Cir. 2001). Finally, to the extent plaintiff seeks injunctive or
declaratory relief, such claims were rendered moot when he was released from custody.
See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996).
Because I am denying plaintiff leave to proceed on his federal claims, I decline to
exercise jurisdiction over his state law claims. See Wright v. Associated Ins. Companies
Inc., 29 F.3d 1244, 1250-51 (7th Cir. 1994). I will dismiss those claims without prejudice;
plaintiff may raise them in state court.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay the $338.92 balance of the
filing fee as he is able. Plaintiff should forward payments to the clerk of court and clearly
identify the payments by case name and number.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice with
respect to plaintiff’s federal claims for failure to state a claim upon which relief may be
granted and without prejudice with respect to plaintiff’s state law claims because the
court declines to exercise supplemental jurisdiction over the state law claims. 28 U.S.C.
§ 1915(g) directs courts to enter a strike when an “action” is dismissed “on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”
Because plaintiff’s state law claims are part of the action and the court did not dismiss
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those claims for one of the reasons enumerated in § 1915(g), the court will not record a
strike against plaintiff under § 1915(g).
Dated in Milwaukee, Wisconsin, this 25th day of June, 2018.

s/Lynn Adelman__________
Lynn Adelman
United States District Judge

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