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Pary v. McCracken County Jail

United States District Court, W.D. Wisconsin

May 8, 2017

CHRISTOPHER PARY, Plaintiff,
v.
MCCRACKEN COUNTY JAIL, FOREST CITY FEDERAL CORRECTIONAL COMPLEX, DELTA MEDICAL CENTER, FCI OXFORD, KATHERINE REGISTER, KEITH OAKLEY, GREG KINGSTON, PAUL DOROGHAZI, MARTIN S. TINDEL, WILLIAM RESTO RIVERA, NWANNEM OBI OKOYE, GERALD J. LIEBERMAN, CURTIS L. OWENS, AMY E. FUNDERBURK, JUDITH LAMARRE, DAVID WILLIAMS, SANDRA FUTRELL, J. CAPPS, PAUL S. BIERMAN, TERESA NEHLS, PENNY PERRY, DR. R. GUPTA, RAME AWD, BONNIE NOWAKOWSKI, B. MILLER, CHIZOBA OBI, SYED SHUJAUDDIN and HABIBA SEIDU FUSEINI, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Pro se 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.

         The following facts are drawn from the allegations in plaintiff's complaint.

         ALLEGATIONS OF FACT

         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.

         Immediately 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 care.

         Plaintiff 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.

         On 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.

         Plaintiff's 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.

         On 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 lasting relief.

         OPINION

         Under 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 complaint.

         A. Proper Defendants and Governing Law

         Plaintiff 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. ...


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