United States District Court, E.D. Wisconsin
LARRY H. DUNN, JR., Plaintiff,
SGT. ZIEGLER, et al., Defendants.
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
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.
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.
of the Second Amended Complaint
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).
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).
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)).
Second Amended Complaint's Allegations
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
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.
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.
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
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,