Shipman, Dennis v. Logistics Health, Inc. et al

Filing 6

ORDER dismissing plaintiff's first amended complaint pursuant to Fed. R. Civ. P. 8. Second Amended Complaint due 9/15/2015. Signed by District Judge James D. Peterson on 9/2/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DENNIS SHIPMAN,

v.

Plaintiff,

OPINION & ORDER
14-cv-651-jdp

LOGISTICS HEALTH, INC., 1
Defendant.

Plaintiff Dennis Shipman was a first responder at ground zero on 9/11. After suffering
subsequent injury, plaintiff filed a disability claim against the World Trade Center Health
Program (WTCHP). Plaintiff alleges that defendant Logistics Health, Inc., first certified his
mental and psychological disability claim, but dismissed his physical injury claim without an
appeal hearing. Because plaintiff is proceeding in forma pauperis, I must screen plaintiff’s
amended complaint to determine whether it states a claim upon which relief may be granted.
28 U.S.C. § 1915(e)(2). Having reviewed the complaint, I conclude that plaintiff has failed to
properly state a claim under Federal Rule of Civil Procedure 8. However, I will allow plaintiff
an opportunity to file a second amended complaint.

ALLEGATIONS OF FACT
The following facts are drawn from plaintiff’s amended complaint. Plaintiff submitted
a disability claim regarding injuries that he suffered as a first responder at ground zero on

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Plaintiff initially filed his complaint against Logistics Health, Inc. and the United States of
America. Dkt. 1. He later filed an amended complaint, which dropped the United States as a
defendant. Dkt. 5. The court will accept the amended complaint and consider it to be the
operative pleading in this case.

9/11. Logistics Health certified that plaintiff had a mental or psychological disability, but it
dismissed his physical injury claim that arose from the same occurrence. Logistics Health
then denied plaintiff an appeal hearing. It is not clear to the court how these actions fell short
of the proper procedure, or what these determinations meant for plaintiff. Plaintiff does not
explain whether he was denied insurance coverage, money, or medical care to which he was
entitled. Plaintiff alleges that the end result was a “determination to terminate treatment” by
some combination of WTCHP, Logistics Health, and other agencies of the federal
government. Dkt. 5, at 3.

ANALYSIS
Plaintiff’s complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8. Plaintiff’s claim must also be plausible
on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Based on plaintiff’s
amended complaint, I understand him to be contending that defendant has: (1) deprived him
of due process and equal protection of the law under the Fifth and Fourteenth Amendments
to the U.S. Constitution, (2) retaliated against him in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101, and (3) committed the tort of intentional infliction of
emotional distress against him. However, plaintiff’s complaint does not contain enough facts
to explain how its denial of plaintiff’s claim violated his federal or constitutional rights.
Because plaintiff’s complaint lacks sufficient facts to meet the pleading standard of Rule 8, I
will dismiss it and give plaintiff an opportunity to file a second amended complaint with
more information addressing these concerns.
Plaintiff should make clear to anyone reading the complaint:

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What plaintiff’s claim was for, and to whom was it submitted, and when;

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What the procedure for considering his claim ought to have been;

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Who denied his claim and how they did so; and

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How the procedure they used was insufficient.

Plaintiff should also consider who should be named as defendants. At this point, defendant
has named only Logistics Health as a defendant and so any wrong committed by any other
entity described in his complaint will not be recoverable in this case. If he wants to proceed
against any other entity, he must specifically name that entity and explain what that entity
did to violate his rights.
Last, plaintiff should pay special attention to whether this case belongs in federal
court. “Federal courts are courts of limited jurisdiction.” Int’l Union of Operating Eng’rs, Local
150 v. Ward, 563 F.3d 276, 280 (7th Cir. 2009). Unless a complaint raises a federal
question, or alleges complete diversity of citizenship among the parties and an amount in
controversy exceeding $75,000, the case must be dismissed for want of jurisdiction. Smart v.
Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 802 (7th Cir. 2009). Plaintiff alleges both
diversity jurisdiction and federal question jurisdiction. Dkt. 5, at 1-2. But plaintiff’s
allegations are insufficient. Plaintiff’s listed address is in Maryland and he alleges that
Logistics Health’s address is in Wisconsin, but he does not plead the citizenship of either
party. Plaintiff should either properly plead diversity for purposes of establishing jurisdiction
under 28 U.S.C. § 1332, or explain how the actions that Logistics Health took against him
raise a federal question for purposes of establishing jurisdiction under 28 U.S.C. § 1331.

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ORDER
IT IS ORDERED that:
1. Plaintiff Dennis Shipman’s first amended complaint is DISMISSED for failure to
comply with Federal Rule of Civil Procedure 8.
2. Plaintiff may have until September 15, 2015, to submit a second amended
complaint. If plaintiff fails to do so by this deadline, I will direct the clerk of court
to enter judgment in favor of defendant.
Entered September 2, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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