McHenry v. Department of Corrections

Filing 11

ORDER signed by Judge J P Stadtmueller on 5/19/2023. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee filed by is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as descr ibed. CASE DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim. Clerk of Court to DOCUMENT that Plaintiff has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: all counsel, via mail to Kriscilla K McHenry and Warden at Taycheedah Correctional Institution )(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KRISCILLA K. MCHENRY,

v.

Plaintiff,

Case No. 23-CV-69-JPS

DEPARTMENT OF CORRECTIONS,
Defendant.

ORDER

Plaintiff Kriscilla K. McHenry, an inmate confined at Taycheedah
Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983
alleging that Defendant Department of Corrections violated her
constitutional rights. This Order resolves Plaintiff’s motion for leave to
proceed without prepaying the filing fee and screens her complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when she filed her complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with her case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). She must then pay the balance of the $350 filing
fee over time, through deductions from her prisoner account. Id.
On April 3, 2023, the Court ordered Plaintiff to pay an initial partial
filing fee of $46.60. ECF No. 10. Plaintiff paid that fee on May 10, 2023. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 2. She must pay the remainder of the filing fee over
time in the manner explained at the end of this Order.

2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner raises 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).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). A complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must contain enough facts, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows
a court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived her of a right secured by the Constitution or
the laws of the United States and that whoever deprived her of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
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liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
2.2

Plaintiff’s Allegations

Plaintiff alleges that Defendant Department of Corrections violated
her rights under the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”). ECF No. 1 at 2. Plaintiff sent a letter to Dr. Love, the
medical director, in February 2022 stating that she was not receiving the
medical care she needed. Id. Plaintiff was notified in May of a breach of her
medical information. Id. An employee inserted the wrong information and
a document intended for Plaintiff was mailed to another inmate at Green
Bay Correctional Institution. Id. The Green Bay inmate returned the letter
because it was not meant for him. Id. at 3. Plaintiff was not aware of the
breach until a correctional officer found some mail in her folder. Id.
2.3

Analysis

The Court finds that Plaintiff’s complaint fails to state a claim upon
which relief can be granted. First, as to any HIPAA violation, HIPAA
provides both civil and criminal penalties for improper disclosures of
protected health information, but limits enforcement of the statute to the
Secretary of Health and Human Services. 42 U.S.C. §§ 1320d–5(a)(l), 1320d–
6. There is no express language conferring a private right or remedy for
disclosure of confidential medical information. The Seventh Circuit Court
of Appeals conclusively held in Stewart v. Parkview Hospital, 940 F.3d 1013,
1015 (7th Cir. 2019), that HIPAA confers no private right of action. As such,
Plaintiff cannot state a claim for a HIPAA violation and the Court finds that
any amendment on this issue would be futile.

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Second, Plaintiff’s allegations do not rise to the level of an Eighth
Amendment cruel and usual punishment claim. Courts have considered
whether disclosure of medical information or records could be actionable
under the Eighth Amendment's prohibition of cruel and unusual
punishment. See Anderson v. Romero, 72 F.3d 518, 523 (7th Cir.1995). For
example, if prison officials disseminated humiliating details of a prisoner’s
medical history for gratuitous reasons unrelated to a legitimate penological
interest, such disclosure might constitute the infliction of cruel and unusual
punishment. See, e.g., Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999).
Plaintiff’s allegations come nowhere close to demonstrating an Eighth
Amendment violation. See Whitley v. Albers, 475 U.S. 312, 319 (1986) (“To be
cruel and unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due care for the
prisoner's interests or safety. . . . It is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause[.]”). Plaintiff does not allege
that her medical records contained any information of a sensitive or
embarrassing nature. Plaintiff also does not allege that her information was
intentionally shared for a gratuitous reason. As such, the Court finds that
Plaintiff’s allegations fail to state a constitutional claim and that any
amendment would be futile.
3.

CONCLUSION
In sum, the Court finds that Plaintiff’s complaint fails to state a claim

upon which relief can be granted. The Court will not grant Plaintiff leave to
file an amended complaint in this instance. Although courts generally
permit civil plaintiffs at least one opportunity to amend their pleadings, the
Court need not do so where the amendment would be futile. See Runnion ex
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rel. Runnion v Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th
Cir. 2015). As such, the Court will dismiss the complaint, under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim,
and will accordingly assess a “strike” under 28 U.S.C. § 1915(g).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because the
complaint fails 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 agency having custody of
Plaintiff shall collect from her institution trust account the $303.40 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 her 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 case. If Plaintiff is transferred to another
county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with her remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
The Clerk of Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 19th day of May, 2023.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, she will be
liable for the $505.00 appellate filing fee regardless of the appeal’s
outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal,
she must file a motion for leave to proceed in forma pauperis with this
Court. See Fed. R. App. P. 24(a)(1). Plaintiff may be assessed another
“strike” by the Court of Appeals if her appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes,
she will not be able to file an action in federal court (except as a petition
for habeas corpus relief) without prepaying the filing fee unless she
demonstrates that she is in imminent danger of serous physical injury. Id.
Under limited circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask
for relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight (28) days of the entry of judgment. The Court cannot extend
this deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule
of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.

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