United States District Court, W.D. Wisconsin
ANGEL A. FLORES, Plaintiff,
DR. KING, Defendant.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
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.
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 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.
Eighth Amendment Claim against Defendant Laufenberg
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.
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.
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, 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).
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 soft-soled 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.
Claim Challenging Co-Payment
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 co-payment, 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
Claims against Defendant King
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 ...