United States District Court, E.D. Wisconsin
ANDREA M. DAWSON, Plaintiff,
MILWAUKEE COUNTY JAIL, W. HENDON, S. JONES, SGT. MONTANO, and SGT. FINKLEY, Defendants.
DECISION AND ORDER
RUDOLPH T. RANDA U.S. District Judge
matter is now before the Court for screening of the
plaintiff’s Second Amended Complaint, which the Court
received on April 29, 2016. See 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 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 the 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)).
sworn Second Amended Complaint, plaintiff Andrea M. Dawson
provides far great detail regarding her treatment at the
Milwaukee County Jail in 2013. She describes physical abuse
by defendant Officer W. Hendon on August 28, 2013, and says
that defendant Officer S. Jones was present and failed to
plaintiff may proceed on Eighth and Fourteenth Amendment
claims against Hendon regarding excessive force, conditions
of confinement, and failure to provide medical treatment
after the plaintiff’s injury. See Hudson v.
McMillian, 503 U.S. 1, 4 (1992); Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011).
plaintiff also may proceed on Eighth and Fourteenth Amendment
claims against Jones for failure to intervene. Only a
defendant who is personally responsible for depriving the
plaintiff of a constitutional right may be held liable under
§ 1983. Grieveson v. Anderson, 538 F.3d 763,
778 (7th Cir. 2008). If someone else has committed the act
that resulted in the constitutional deprivation, then the
defendant is personally responsible, and thus liable under
§ 1983, if he knows about the other person’s act
and has a realistic opportunity to prevent it, but
deliberately or recklessly fails to do so. Lewis v.
Downey, 581 F.3d 467, 472 (7th Cir. 2009).
Finkley came to the plaintiff’s cell door about three
minutes after the assault and asked the plaintiff questions
to make sure she was coherent. The plaintiff told Finkley
that Hendon had broken her hand. Finkley asked the plaintiff
to come out of her cell so pictures could be taken of her
face, hand, and cell. After his assessment, Finkley wanted to
send the plaintiff to the emergency room for treatment for
her hand, but Sgt. Montano intervened. Montano, who was
Finkley’s supervisor, ordered an x-ray technician to
come to the Jail. When the break was confirmed, the Health
Services Unit bandaged the plaintiff’s hand before she
was placed in disciplinary segregation pending an
investigation of the incident earlier in the day.
months later, Montano ordered staff to take the plaintiff to
the hospital to attempt to repair the plaintiff’s hand,
which had not fully healed. The plaintiff refused to go
because she was afraid of another assault.
early stage, the Court will allow the plaintiff to proceed on
claims against Finkley and Montano regarding their handling
of her serious medical need after the assault. “The
Eighth Amendment safeguards the prisoner against a lack of
medical care that ‘may result in pain and suffering
which no one suggests would serve any penological
purpose.’” Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009) (quoting
Estelle, 429 U.S. at 103). “To state an Eighth
Amendment claim based on deficient medical care, a plaintiff
must allege an objectively serious medical condition and an
official’s deliberate indifference to that
condition.” Perez v. Fenoglio, 792 F.3d 768,
776 (7th Cir. 2015). Specifically, the plaintiff asserts that
Montano should have sent her to the emergency room for
treatment and that Finkley should have insisted that she be
sent to the emergency room, even after Montano disagreed.
plaintiff’s claims against Hendon, Jones, Montano and
Finkley are all against the defendants in their individual
capacities. An official capacity claim would be a claim
against Milwaukee County for a policy, custom, or practice.
plaintiff’s final claim is against “Defendant
Milwaukee County Jail, and or Milwaukee County.” (ECF
No. 31 at 6). However, the plaintiff named only the Milwaukee
County Jail in the caption and section naming the parties,
and it is “unacceptable for a court to add litigants on
its own motion.” Myles v. United States, 416
F.3d 551, 553 (7th Cir. 2005). As the Court advised the
plaintiff in a previous order, the Milwaukee County Jail is
not a suable entity under § 1983. Best v. City of
Portland, 554 F.3d 698 (7th Cir. 2009) (citing Chan
v. Wodnicki, 123 F.3d 1005, 1007 (7th Cir. 1997);
West v. Waymire, 114 F.3d 646, 646-47 (7th Cir.
1997)); (ECF No. 14 at 5). The Court will dismiss the
Milwaukee County Jail as a defendant.
the plaintiff had named Milwaukee County as a defendant, her
complaint does not state a claim for municipal liability. In
order to state a § 1983 claim against Milwaukee County,
the plaintiff must show deprivation of a federal right that
resulted from an express municipal policy, widespread custom,
or deliberate act of a decision-maker for the municipality,
which proximately caused his injury. Davis v.
Carter, 452 F.3d 686, 691 (7th Cir. 2006) (citing
Monell v. Dep’t of Soc. Servs. of New York,
436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
plaintiff alleges it was negligent to not have a camera in
her cell for “security and safety” and that she
should have been placed in “a mentally ill unit,
” as she had been on previous stays at the Jail.
Neither of these allegations is sufficient to state a claim
that Milwaukee County has a policy or custom that deprived
her of her constitutional rights.
THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT
the defendant ...