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Dunn v. Ziegler

United States District Court, E.D. Wisconsin

February 8, 2019

LARRY H. DUNN, JR., Plaintiff,
SGT. ZIEGLER, et al., Defendants.



         Plaintiff Larry H. Dunn, Jr., a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was an inmate at Oshkosh Correctional Institution. The court screened his prior two complaints and both times found that Dunn failed to state a claim upon which relief could be granted. It granted him a final opportunity to further amend his complaint, which he has done.

         As stated in the first two screening orders, the court has jurisdiction to screen Dunn's second amended complaint based on the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court. The court finds that Dunn's second amended complaint does not state a claim, and it will dismiss his case.

         Screening of the Second Amended Complaint

         The court is required to screen complaints, including amended complaints, brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         To state a cognizable claim under the federal notice pleading system, a plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).

         The court is obliged to give a plaintiff's pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         The Second Amended Complaint's Allegations

         Dunn is a prisoner at Oshkosh Correctional Institution. Dunn alleges that on December 10, 2017, Sergeant Ziegler violated his, First, Eighth, and Fourteenth Amendment rights. Ziegler had him placed in quarantine for chicken pox and logged his assumed diagnosis into the Q-Unit log book. At that time, Dunn started the ICERS (inmate complaint) process by notifying Ms. Hinz, the Q-Unit manager. On December 11 or December 12, 2017, Ziegler shared Dunn's medical issue (chicken pox) in front of 10 to 12 other people in the noon medication line, including direct quotes from his conversation with Hinz. Dunn alleges Ziegler violated Wisconsin's Health Information and Patient Portability Act (HIPPA).

         According to Dunn, Ziegler did this because neither he nor his cellmate actually had Ziegler's prior diagnosis of scabies. Because of her actions, Dunn has been accused of being unclean and having poor hygiene. This has resulted in Dunn being harassed by staff and other inmates and has caused him to need medication.

         Since filing this lawsuit, Dunn's cell has been searched and documents relating to the case have gone missing. The staff knows nothing about it. Dunn says this is only an example of the harassment he has experienced since filing this lawsuit.


         Dunn's second amended complaint raises several possible claims. First, a claim based on Ziegler's indifference to a risk of harm if she disclosed medical information. Second, a claim based on Ziegler retaliating against Dunn. Third, a claim based on retaliation he has experienced since filing this lawsuit. And, fourth, a claim based on Wisconsin's HIPPA law.

         As stated previously, prisoners may have a limited right to privacy with respect to their health information, Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995), but that remains an open question, Massey v. Helman, 196 F.3d 727, 742 (7th Cir. 1999); Franklin v. McCaughtry, 110 Fed.Appx. 715, 718-19 (7th Cir. 2004). To the extent prisoners may have such a right, the Court of Appeals for the Seventh Circuit has stated, in dicta, that a claim based on the disclosure of medical information would arise under the Eighth Amendment's proscription against cruel and unusual punishment. Shields v. Dane County Jail Mental Health Dept., No. 17-cv-266-wmc, 2018 WL 5307807, *2 (W.D. Wis. Oct. 26, 2018) (citing Anderson, 72 F.3d at 523). The Seventh Circuit explained that disclosing medical information for the sole purpose of humiliating a prisoner could, ostensibly, constitute cruel and unusual punishment. Anderson, ...

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