Flores, Angel v. Oxford Wisconsin (Medical) Federal Correctional Institution et al

Filing 19

ORDER denying plaintiff leave to proceed on claims against defendant Ms. Laufenberg. Plaintiff may have until December 28, 2017, to file an amended complaint. Signed by District Judge Barbara B. Crabb on 12/11/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - ANGEL A. FLORES,
OPINION and ORDER
Plaintiff,
17-cv-526-bbc
v.
DR. KING,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - On September 21, 2017, I granted pro se plaintiff Angel A. Flores leave to proceed
on his claim that defendant Dr. King, the medical director at the Federal Correctional
Institution in Oxford, Wisconsin, violated plaintiff’s Eighth Amendment rights. I denied
him leave to proceed on any other claim, but gave him an opportunity to clarify the factual
basis of his discrimination claim and denial of medication clam against defendant Ms.
Laufenberg, the health services administrator, as well as to name the United States as
defendant for his Federal Tort Claims Act claim.
Plaintiff responded by filing an 18-page document in which he adds new allegations
and claims, as well as more than 60 pages of exhibits. He also filed a document that named
the United States as the only defendant, dkt. #14 at 1, and a separate document naming the
Federal Correctional Institution at Oxford, Wisconsin, Dr. King and Ms. Laufenberg as
defendants. Dkt. #14 at 1, 2. Plaintiff’s new allegations are still insufficient to state a claim
of discrimination or any claim against Laufenberg. Additionally, plaintiff’s new allegations
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regarding unfair co-payment requirements do not state a claim for relief. With respect to
plaintiff’s claim against defendant King, the allegations in plaintiff’s supplemental filings
contradict some of the allegations in his original complaint and undermine his claim against
defendant King. Therefore, I will give plaintiff one final opportunity to file an amended
complaint that clearly explains his claims against King and includes the United States as a
defendant in the caption of his complaint. Finally, plaintiff says that he wishes to add “Dr.
Harvey” as a defendant and includes allegations regarding Dr. Harvey’s alleged failure to
treat plaintiff’s medical condition.

However, because it is unclear whether plaintiff’s

proposed claims against Dr. Harvey can proceed in the same lawsuit with his claims against
Dr. King, I will reserve a ruling on whether plaintiff may proceed with a claim against Dr.
Harvey until after plaintiff submits a proposed amended complaint.

OPINION
A. Eighth Amendment Claim against Defendant Laufenberg
In his original complaint, plaintiff had contended that defendant Laufenberg violated
his Eighth Amendment rights by telling him to purchase pain medication from the
commissary. I explained that this allegation was not enough to state a violation of the
Eighth Amendment, because plaintiff had not explained enough about Laufenberg’s alleged
statement, such as why he needed pain medication and why Laufenberg would have known
he needed it. I gave plaintiff the opportunity to provide more information about his claim
against Laufenberg regarding pain medication.

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In his supplemental filings, plaintiff does not include any more information about his
claim against Laufenberg relating to the denial of pain medication. Instead, plaintiff includes
a few allegations about how Laufenberg responded to emails plaintiff sent to Laufenberg
about his medical care. To the extent plaintiff was intending to bring claims based on
Laufenberg’s responses, his allegations are inadequate. His allegations do not suggest that
Laufenberg was responsible for treating his medical needs or that she was responsible for
reviewing the decisions of his treating physicians. In short, it is not clear what plaintiff
believes Laufenberg did to violate his rights. Therefore, plaintiff may not proceed with his
claims against Laufenberg.

B. Discrimination Claim
In his original complaint, plaintiff had contended that he was discriminated against
because he is Latino, but plaintiff had failed to identify how and when he was discriminated
against or by whom. As I explained previously, to state a claim of discrimination under the
equal protection clause, a plaintiff must plead (1) “that he is a member of a protected class”;
(2) “that he is otherwise similarly situated to members of the unprotected class”; and (3)
“that he was treated differently from members of the unprotected class.” Brown v Budz, 398
F.3d 904, 916 (7th Cir. 2005) (quoting McNabola v. Chicago Transit Authority., 10 F.3d
501, 513 (7th Cir. 1993)). A plaintiff must also plead sufficient facts to show that the
defendant “adopted and implemented a policy not for a neutral . . . reason but for the
purpose of discriminating on account of race, religion, or national origin.” Ashcroft v. Iqbal,

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556 U.S. 662, 676-77 (2009). In other words, a plaintiff must allege an improper motive,
and not merely a discriminatory impact. Washington v. Davis, 426 U.S. 229, 245 (1976).
In his supplement, plaintiff alleges that he was denied soft-soled shoes by defendants
King and Laufenberg, even though some white inmates with less severe medical conditions
have received soft-soled shoes. Although plaintiff has now explained why he believes he was
subjected to discriminatory treatment, his allegations are still insufficient to state a claim
because he has not alleged that it was defendant King or Laufenberg who provided the softsoled shoes to white inmates. Without such an allegation, I cannot infer that King and
Laufenberg’s refusal to provide shoes to plaintiff free of charge was motivated by his race.
Accordingly, plaintiff has failed to state a claim of discrimination.

C. Claim Challenging Co-Payment
In his supplemental filings, plaintiff states that he wishes to challenge that Bureau of
Prison’s imposition of a $2 co-payment for medical visits. However, because plaintiff does
not allege that he has been denied medical care because of an inability to pay the copayment, this claim is foreclosed by Poole v. Isaacs, 703 F.3d 1024, 1027 (7th Cir. 2012),
in which the Court of Appeals for the Seventh Circuit held that imposition of a modest fee
for medical services provided to inmates with adequate resources to pay does not violate the
Constitution. Accordingly, plaintiff may not proceed with a claim challenging the copayment requirement.

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D. Claims against Defendant King
In the previous screening order, I held that plaintiff could proceed with a claim under
the Eighth Amendment against defendant Dr. King, based on plaintiff’s allegations that at
a November 3, 2016 appointment, King refused to provide any treatment for plaintiff’s
heart condition and painful growths on his hands and feet. In particular, plaintiff had
alleged that King stated he would not provide treatment or spend money on plaintiff because
plaintiff was an inmate who was wasting King’s time. Dkt. #10 at 5. Plaintiff also alleged
that King refused to give him his heart medication and refused to give him a soft shoe pass
for pain in his feet, telling plaintiff that he was “wasting” King’s time. Id. at 2. I also stated
that plaintiff had alleged facts sufficient to bring a negligence claim based on King’s actions
under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, but that plaintiff needed to file
an amended complaint that included the United States as a defendant.
The allegations in plaintiff’s supplement/proposed amended complaint relating to
defendant King appear to contradict plaintiff’s original allegations. In particular, plaintiff
now alleges that when he saw King on November 3, 2016 for a physical, King requested that
plaintiff be seen by an orthopedic specialist for the growths on his hands and feet, which
King suspected to be Dupuytren’s nodules. Dkt. #14 at 6-7. As for plaintiff’s heart
condition, King noted that plaintiff had a history of a heart murmur and possible
arrhythmia. King did not believe plaintiff needed to continue taking a daily aspirin and
discontinued that. However, King ordered that plaintiff receive an electrocardiogram, a
number of lab tests and have his blood pressure and pulse checked weekly. Id. As for

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plaintiff’s request for soft shoes, King told plaintiff that he could purchase his own shoes
from the commissary. Dkt. #15.
Plaintiff’s new allegations, which are corroborated by the medical records plaintiff
submitted, dkt. #14-1, do not support plaintiff’s contention that defendant King was
deliberately indifferent to plaintiff’s medical needs. King responded to plaintiff’s concerns
about the growths on his hands and feet by recommending that plaintiff be seen by an
orthopedic surgeon. Although the appointment with the specialist ultimately did not occur
as scheduled, plaintiff does not suggest that King was at fault. King responded to plaintiff’s
concerns about his heart by scheduling an electrocardiogram and regular pulse and blood
pressure checks. Although plaintiff suggests that King should not have discontinued his
aspirin, plaintiff alleges that the aspirin prescription was restarted the following month, and
he has not alleged that being without aspirin for one month caused him any serious medical
problems. Finally, King responded to plaintiff’s requests for soft shoes by telling plaintiff
soft shoes were available in the commissary.
Rather than displaying deliberate indifference, King’s various alleged actions suggest
that he ordered treatment he believed was appropriate for plaintiff’s history and health
concerns. Although plaintiff may have disagreed with King’s treatment decisions, plaintiff’s
disagreements are not enough in themselves to state a claim for deliberate indifference or
negligence. Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997). Additionally,
although plaintiff may believe that the prison should provide him soft soled shoes free of
charge, it does not violate the Eighth Amendment to require inmates who are able to
contribute to the cost of their care. Pooles, 703 F.3d at 1026.
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If the allegations in plaintiff’s supplement/proposed amended complaint were the only
allegations in this case involving defendant King, I would dismiss plaintiff’s Eighth
Amendment and negligence claims against King for failure to state a claim upon which relief
may be granted. However, because plaintiff’s supplemental allegations are inconsistent with
the allegations in his original complaint involving King, I will give plaintiff a chance to clarify
his claim against King. (See instructions at pps. 8-9 below.)

E. New Claim against Dr. Harvey
In his supplemental filings, plaintiff says that he wants to add Dr. Harvey, another
physician at the prison, as a defendant. Plaintiff alleges that on numerous occasions in
2017, Dr. Harvey refused to provide treatment for the painful growths on his hands and feet.
Plaintiff’s allegations are sufficient to state a claim under the Eighth Amendment against
Harvey for his alleged failure to provide medical treatment for plaintiff’s serious medical
needs.
At this point, plaintiff’s claim against Dr. Harvey is the only claim for which plaintiff
has alleged sufficient facts to state a claim upon which relief may be granted. However, I will
not permit plaintiff to proceed with a claim against Dr. Harvey at this time because it is not
clear whether plaintiff will be proceeding on any other claim against any other defendant and
if so, whether all his claims can proceed in the same lawsuit under Rule 20 of the Federal
Rules of Civil Procedure. Rule 20 prohibits a plaintiff from bringing unrelated claims against
different defendants in the same lawsuit. Until plaintiff makes attempt to explain his claims
against defendant King, I cannot determine whether plaintiff may proceed against multiple
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defendants without violating Rule 20. Owens v. Godinez, 860 F.3d 434 (7th Cir. 2017)
(“[D]istrict courts should not allow inmates to flout the rules for joining claims and
defendants, see Fed. R. Civ. P. 18, 20, or to circumvent the Prison Litigation Reform Act's
fee requirements by combining multiple lawsuits into a single complaint. Unrelated claims
against different defendants belong in different suits.”) (internal quotations omitted).
Therefore, after plaintiff submits a proposed second amended complaint, I will determine
whether plaintiff may proceed with a claim against Harvey.

F. Next Steps
Before this case may proceed further, plaintiff needs to file a single, proposed
amended complaint that provides fair notice to defendants King and Harvey of the claims
he is asserting against them. The amended complaint must stand on its own, meaning that
the amended complaint should include King, Harvey and the United States in the caption
and include all relevant allegations. Plaintiff should not refer back to previous documents
or complaints he has filed.
Plaintiff should draft the amended complaint as if he were telling a story to people
who know nothing about his situation. This means that someone reading the complaint
should be able to answer the following questions:
(1) What is the nature of plaintiff’s health problem(s)?
(2) What treatment has he received for his health problem(s), who provided it and
when?

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(3) Why does he believe defendants King and Harvey violated his rights with respect
to treatment of his health conditions?
(4) What did each individual defendant do that makes him or her liable for failing
to treat plaintiff’s health condition(s)?
(5) How does plaintiff think the court can help him?
Plaintiff should take care to identify the specific actions taken by defendants King
and Harvey that he believes violated his rights. In doing so, he should consider the relevant
legal standards set forth in this order and the previous screening order, dkt. #10. He should
set forth his allegations in separate, numbered paragraphs using short and plain statements.
Plaintiff should avoid included legal arguments and extraneous information about the
grievance process. After plaintiff finishes drafting his proposed amended complaint, he
should review the complaint and consider whether it could be understood by someone who
is not familiar with the facts of his case. If not, he should make necessary changes.
If plaintiff submits an amended complaint by the deadline set forth below, I will
review it. If he does not submit an amended complaint or show good cause why he is unable
to do so, I will enter an order granting leave to proceed against Dr. Harvey on an Eighth
Amendment relating to Dr. Harvey’s alleged failure to provide care for the growths on
plaintiff’s hands and feet, and will dismiss all of the other defendants and claims.

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ORDER
IT IS ORDERED that
1. Plaintiff Angel A. Flores is DENIED leave to proceed on claims against defendant
Ms. Laufenberg.
2. Plaintiff may have until December 28, 2017, to file an amended complaint that
includes the United States as a defendant and clarifies his claims against defendants Dr. King
and Dr. Harvey and complies with the requirements set forth above.
Entered this 11th day of December 2017.

BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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