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Hernandez v. Felomi

United States District Court, E.D. Wisconsin

March 9, 2016

ALEX FELOMI, RN REBECCA, UNKNOWN MEDICAL ADMINISTRATOR, sued as KCDC Medical Personnel, and UNKNOWN ADMINISTRATOR, sued as ICE Administrators, Defendants.


HON. RUDOLPH T. RANDA U.S. District Judge

The pro se plaintiff, who is confined at the Kenosha County Detention Center, filed a complaint alleging violations of federal law. This matter comes before the Court on the plaintiff’s petition to proceed in forma pauperis. He has been assessed and paid an initial partial filing fee of $34.14.

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

To state a cognizable claim under the federal notice pleading system, the 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). It is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

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)).

Complaint Allegations

According to the complaint, the plaintiff is a Mexican citizen confined at the Kenosha County Detention Center (KCDC). He is suing Alex Felomi, who works for “ICE” (Immigration and Customs Enforcement); KCDC Nurse Rebecca; Unknown KCDC Medical Personnel; and Unknown ICE Administrators.

The plaintiff alleges that on December 16, 2015, he saw the dentist at the KCDC after waiting in pain for more than forty days. Nurse Rebecca used a sharp-edged device to take x-rays, which cut the inside of the plaintiff’s mouth. After viewing the x-rays, the dentist numbed his mouth and removed half of the plaintiff’s tooth. The dentist told the plaintiff that he did not have the proper equipment to remove the other half, and that they would have to send him to an outside clinic. The dentist also would not install a filling on the plaintiff’s upper tooth, telling the plaintiff that the filling could wait until he went home.

The plaintiff was in pain for the next fourteen days. He submitted requests and complaints about his pain and suffering. On the morning of December 30, 2015, the nurse told the plaintiff that he would not see the dentist that day because of the holidays.

On January 4, 2016, Nurse Rebecca assured the plaintiff that he would see the dentist as soon as ICE approved him. The plaintiff replied, “that ICE says that it is up to KCDC.” (Dkt. No. 1-1 at 1.) Nurse Rebecca then stated that the plaintiff had been talking with the wrong person. The plaintiff asked for the person’s name, and she told him it was Alex Felomi.

A few days later, the nurse told the plaintiff that defendant Felomi did not approve the plaintiff to see a dentist. The nurse also said that she would talk to Felomi, but the plaintiff has not heard anything since then.

The plaintiff claims that the dentist, Alex Felomi, Nurse Rebecca, ICE Department Personnel, and KCDC Medical Personnel have been deliberately ...

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