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Flores v. King

United States District Court, W.D. Wisconsin

December 11, 2017

ANGEL A. FLORES, Plaintiff,
DR. KING, Defendant.



         On 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.

         Plaintiff 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.


         A. Eighth Amendment Claim against Defendant Laufenberg

         In his 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.

         In his 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.

         B. Discrimination Claim

         In his 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).

         In his 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.

         C. Claim Challenging Co-Payment

         In his 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 co-payment requirement.

         D. Claims against Defendant King

         In the 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 ...

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