United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER Magistrate Judge.
se plaintiff Johnson Carter brought this proposed civil
action, under federal diversity jurisdiction, 28 U.S.C.
§ 1332, in which he alleges that the defendants are
liable under state law for his exposure to asbestos. As
Carter has been permitted to proceed in forma
pauperis without payment of an initial partial filing
fee, his complaint is ready for screening pursuant to 28
U.S.C. § 1915A. For the following reasons, Carter may
not proceed unless he files an amended complaint that
addresses the deficiencies described below.
is currently imprisoned at the Oshkosh Correctional
Institution, and his home address is located in Wausau,
Wisconsin. Carter named three defendants: Henry Carlson's
Construction Company, an “unknown heir” and/or
hospital and an “unknown temp agency.” He
indicates that all of the defendants are located in Sioux
Falls, South Dakota.
February 1, 2016, Carter got sick while he was housed at the
Lincoln County Jail. At approximately 11:30 in the morning,
he was rushed to the Ministry Good Samaritan Health Center,
located in Merrill, Wisconsin. Doctors and nurses took x-rays
of Carter, and “did other procedures.” On
February 4, 2016, when Carter was back at the Lincoln County
Jail, medical personnel told him that he had been exposed to
asbestos. Carter does not include any allegations about the
symptoms he was experiencing or exactly what he was told
about the ramifications of his asbestos exposure.
to Carter, in approximately 1988, he was working for a temp
agency in Sioux Falls, South Dakota, and was hired to do
construction for Henry Carlson's Construction Company.
While working for Henry Carlson's, he worked at a
hospital located in Sioux Falls, demolishing old sections of
the hospital for a remodel. The foreman of his construction
crew told Carter and his fellow workers that the old building
had asbestos that they were tearing out. Apparently the only
safety gear they wore was a 25-cent paper mask.
indicates that he is currently in the process of trying to
get his x-rays and medical records from the hospital. He does
not provide any other details about the work he did in 1988
or his current medical state.
seeks relief because he claims that his exposure to asbestos
will end up taking his life. He is suing under state law, and
thus is seeking to proceed under 28 U.S.C. § 1332, which
provides federal courts with subject matter jurisdiction over
state law claims where the plaintiff and defendants are
citizens of different states and the amount in controversy is
greater than $75, 000.
appears that this court may exercise diversity jurisdiction
here. Carter indicates that he is a resident of Wisconsin and
each defendant is located in Sioux Falls, South Dakota. Thus,
it is possible that none of the defendants also reside in
Wisconsin, so the diversity of citizenship requirement may be
fulfilled. Additionally, plaintiff is seeking $23, 000, 000
in damages for what he alleges is his future loss of life.
plaintiff's complaint generously, it appears that he is
seeking to bring negligence claims against each of the
defendants. Yet the allegations in his complaint do not
follow the requirements of Federal Rule of Civil Procedure 8.
Under that Rule, a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” This means that “the
complaint must describe the claim in sufficient detail to
give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” EEOC v. Concentra
Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007). As his complaint stands, plaintiff's allegations
are too vague to permit him to proceed.
subject matter jurisdiction in this case is based on
diversity of citizenship, either Wisconsin or South Dakota
law will apply to plaintiff's claims. To prevail on a
claim for negligence in South Dakota, a plaintiff must prove
(1) a duty on the part of the defendant; (2) a failure to
perform that duty; and (3) an injury to the plaintiff
resulting from such failure. Kuehl v. Horner, 678
N.W.2d 809, 812 (S.D. 2004). In South Dakota, for a duty of
care to exist, “a sufficient relationship must exist
between the parties. Foreseeability may also create a
duty.” Braun v. New Hope Tp., 646 N.W.2d 737,
740 (S.D. 2002). The determination of whether a duty exists
is a legal one. Id. Similarly, in Wisconsin, a
plaintiff must prove (1) a breach of (2) a duty owed (3) that
results in (4) injury or injuries, or damages. Paul v.
Skemp, 242 Wis.2d 507, 520, 625 N.W.2d 860, 865 (2001)
(citing Nieuwendorp v. Am. Family Ins. Co., 191
Wis.2d 462, 475, 529 N.W.2d 594 (1995)).
early stage, plaintiff's allegations are sufficient to
permit an inference that each of the defendants owed him a
duty of care and breached it. As to Henry Carlson's, the
allegations that a foreman knew that the construction workers
would be handling asbestos-laden materials, but only provided
them with a safety mask, appear sufficient to suggest that
this defendant both owed him a duty of care and breached it
by failing to provide proper safety gear.
the temp agency, although plaintiff alleges that this
defendant merely placed him with Henry Carlson's for
construction work, it is too early for the court to conclude
that the temp agency did not have a duty to investigate the
work being done by the Henry Carlson's. If the agency did
owe plaintiff such a duty, its failure to ensure that proper
safety precautions were taking place could amount to a breach
of its duty of care. Similarly, with respect to the hospital,
it is unclear that it owed plaintiff a duty of care, or that
it was in a position in which it could breach that duty. Nor
is it apparent that the hospital could control how the