United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge
plaintiff Christopher Pary, who is incarcerated at the Milan
Federal Correctional Institution in Milan, Michigan, has
filed a proposed complaint alleging that numerous health care
providers at a county jail in Kentucky, two private medical
facilities in Tennessee and Wisconsin and two federal
correctional institutions in Arkansas and Wisconsin failed to
provide him with adequate medical care. Plaintiff has made an
initial partial payment of the filing fee under 28 U.S.C.
§ 1915(b)(1), so his complaint is ready for screening
under 28 U.S.C. § 1915A. After reviewing plaintiff's
complaint, I conclude that he has failed to provide
sufficient detail to satisfy the notice pleading requirements
of Federal Rule of Civil Procedure 8. Accordingly, I will
dismiss plaintiff's complaint without prejudice. However,
plaintiff will be given an opportunity to amend his complaint
to include additional details related to defendants'
alleged failure to provide him medical care.
following facts are drawn from the allegations in
April 2012, plaintiff Christopher Pary started bleeding from
his rectum and was given a diagnosis of rectal hemorrhoids.
On May 21, 2012, plaintiff was arrested and placed in the
McCracken county jail in Paducah, Kentucky. Defendants
Katherine Register, Keith Oakley and Greg Kingston were part
of the medical staff at the jail.
following his arrest, plaintiff was transported to a federal
holdover facility in Paducah, which plaintiff refers to as
“McCracken County.” (It is unclear from the
allegations in the complaint whether the holdover facility
was in fact the McCracken county jail.) On June 3, 2013,
while housed at “McCracken, ” plaintiff again had
rectal bleeding, which was substantially worse than what he
had experienced previously. Health care staff gave him
hemorrhoid cream but did not provide him any other medical
was transferred to the Forrest City Federal Correctional
Complex in Forrest City, Arkansas in November 2013. Even
though plaintiff's rectal bleeding continued to worsen,
medical staff gave him only a hemorrhoid cream and did not
perform any diagnostic tests or provide further treatment.
Defendants Paul Doroghazi, Dr. Martin Tindel, William Resto
Rivera, Dr. Nwannem Obi Okoye, Judith Lamarre, David
Williams, Sandra Futrell and Dr. J. Capps worked in health
services at the Forrest City facility.
October 10, 2014, plaintiff began bleeding profusely and was
rushed to defendant Delta Medical Center in Memphis,
Tennessee, where he received three blood transfusions.
Physicians determined that a colonoscopy was necessary to
determine whether internal rectal hemorrhoids were causing
the bleeding. Defendants Gerald Lieberman, Curtis Owens and
Amy Funderburk worked at Delta Medical Center. Defendant Dr.
Paul Bierman is associated with Gastrointestinal Specialists
Endoscopy Center in Memphis, Tennessee.
bleeding continued during the period from October 2014 and
August 15, 2015. Plaintiff was transferred to defendant
Federal Correctional Institution at Oxford, where he
continued to suffer from rectal bleeding. Defendants Teresa
Nehls, Penny Perry, Dr. R. Gupta, Dr. Rame Awd, Bonnie
Nowakowski, Habiba Seidu-Fuseini and B. Miller worked in
health services at the prison. On September 15, 2015,
plaintiff reported severe rectal bleeding to health services
staff. Plaintiff received a blood transfusion on February 4,
2016, and again on March 16, 2016. Both procedures were
performed at Divine Savior Healthcare in Portage, Wisconsin
while plaintiff was housed at the Federal Correctional
Institution at Oxford. Defendants Chizoba Obi and Syed
Shujauddin are doctors at Divine Savior.
April 15, 2016, plaintiff saw a specialist, Dr. Michael
Foley, at Affinity Medical Group in Oshkosh, Wisconsin, who
determined that a “rubberband” procedure would
largely solve the rectal bleeding issue and provide plaintiff
Fed.R.Civ.P. 8(a), plaintiff must set forth a “short
and plain statement of [his] claim showing that [he] is
entitled to relief” and provide the people he is suing
“fair notice of what [his] 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)). Plaintiff's
complaint fails to comply with this rule in several respects
and it also names certain entities who cannot be sued. I will
start by discussing the parties who may be sued and then
address the specific pleading deficiencies in plaintiff's
Proper Defendants and Governing Law
has brought his claim for inadequate medical care under 42
U.S.C. § 1983, which provides a cause of action for the
deprivation of a right secured by the Constitution or laws of
the United States by a person or persons acting under color
of state law. Buchanan-Moore v. City of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009). Although the employees of
the McCracken County Jail may be considered state actors for
purposes of § 1983, plaintiff's claims against the
individual defendants who worked at the federal correctional
facilities arise under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
which “recognized an implied cause of action for
damages against federal officers to redress a constitutional
violation.” Engel v. Buchan, 710 F.3d 698, 703
(7th Cir. 2013). In addition, because the McCracken County
Jail is a building and not a “person, ” it can
not be sued under § 1983. Smith v. Knox County
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). Similarly,
the Federal Correctional Facility at Oxford and the Forrest
City Federal Correctional Complex are not
“officials” who can be sued under
Bivens. Finally, plaintiff has named a private
medical facility and private medical providers as defendants.
Although private persons may be sued under § 1983 when
they act under color of state law and certain conditions are
met, London v. RBS Citizens, N.A., 600 F.3d 742, 746
(7th Cir. 2010), there is no automatic right of action for
damages against private entities acting under color of
federal law. Correctional Services Corp. v. Malesko,
534 U.S. ...