United States District Court, E.D. Wisconsin
ADELMAN United States District Judge
plaintiff, Robert Xavier Morales, is a state prisoner
proceeding pro se. He is currently being housed at
Green Bay Correctional Institution. He filed this civil
rights action under 42 U.S.C. § 1983, alleging
violations of his rights under the Eighth and Fourteenth
Amendments while he was being held at the Milwaukee County
Jail for a pre-trial court appearance. This matter comes
before me on plaintiff's motion for leave to proceed
without prepayment of the filing fee (in forma
pauperis) and for screening of the complaint.
waived plaintiff's initial partial filing fee because he
lacks the funds to pay. ECF No. 6, at 2-3; see also
28 U.S.C. § 1915(b)(4). Therefore, I will grant his
motion for leave to proceed without prepayment of the filing
required to screen complaints brought by prisoners seeking
relief against a governmental entity or officer or employee
of a governmental entity. 28 U.S.C. § 1915A(a). I must
identify cognizable claims and dismiss any claims that are
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. Id. §
state a cognizable claim, the plaintiff must provide “a
short and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests,
” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)), and “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face, '” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). But, a
“[l]itigant need not plead legal theories” so
long as his factual allegations “provide fair notice to
the defendants of the necessary elements” of his
claims. Ortiz v. Downey, 561 F.3d 664, 670 (7th Cir.
2009) (citing Jogi v. Voges, 480 F.3d 822, 826 (7th
Cir. 2007)). Because he is representing himself, I give
plaintiff's complaint, “however inartfully pleaded,
” a liberal construction. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)).
state a claim for relief under § 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).
alleges that, while he was restrained and in handcuffs,
defendants repeatedly struck, aggressively handled, and
threatened him. He further alleges that defendant Lieutenant
Hanna prevented a nurse from treating him for the injuries
that he sustained from this.
‘unnecessary and wanton infliction of pain' . . .
constitutes cruel and unusual punishment forbidden by the
Eighth Amendment.” Whitley v. Albers, 475 U.S.
312, 319 (1986) (quoting Ingraham v. Wright, 430
U.S. 651, 670 (1977)). An officer who has an opportunity to
intervene to stop a violation but fails to do so may also be
held liable. Byrd v. Brishke, 466 F.2d 6, 11 (7th
Cir. 1972). Plaintiff alleges that defendants Hanna, Fritz,
and Oswald deliberately hurt him for no reason. Whether
McDonald did the same is unclear, but plaintiff's
allegations show that McDonald was present and had an
opportunity to intervene but did not, so he may be liable, as
well. Therefore, plaintiff may proceed against Hanna, Fritz,
Oswald, and McDonald in their individual capacities on claims
that they violated his Eighth Amendment right to be free from
the use of excessive physical force.
Eighth Amendment [also] 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.'” Arnett v. Webster, 658 F.3d,
742, 750 (7th Cir. 2011) (quoting Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)).
“‘Deliberate indifference to serious medical
needs of a prisoner constitutes the unnecessary and wanton
infliction of pain forbidden by the Constitution.'”
Id. (quoting Rodriguez, 577 F.3d at 828).
Plaintiff alleges that he was in a great deal of pain from
defendants' use of force, that a nurse visited him in his
cell, and that Hanna sent the nurse away shortly after she
arrived, before she could treat him. Plaintiff alleges that
Hanna said to him, “You're fine.” Compl., ECF
No. 1, at 6. This is enough to allow plaintiff to proceed
against Hanna in his individual capacity on an Eighth
Amendment claim that Hanna was deliberately indifferent to
plaintiff's serious medical needs.
claims that his rights under the Fourteenth Amendment were
violated, but it appears from his factual allegations that he
includes the Fourteenth Amendment only because it is the
vehicle by which the Eighth Amendment was incorporated
against the states, Robinson v. California, 370 U.S.
660, 667 (1962), and that he does not raise any independent
claims under the Fourteenth Amendment.
not clear whether plaintiff intended to name the Milwaukee
County Jail as a defendant or included it in the caption
merely to identify where the individual defendants were
employed. Regardless, plaintiff's complaint does not
indicate or suggest that the alleged constitutional
violations resulted from a municipal policy or practice, and
“[m]unicipal liability under § 1983 is appropriate
only when [a municipal] policy [or practice] is the
‘direct cause' or ‘moving force' behind a
constitutional violation.” Hunter v. Amin, 583
F.3d 486, 489 (7th Cir. 2009) (quoting Estate of Novack
ex rel. Turbin v. County of Wood, 226 F.3d 525, 530 (7th
Cir. 2000)). Therefore, plaintiff may not proceed against the
Milwaukee County Jail, and I will dismiss the Milwaukee
County Jail as a defendant to this action.
HEREBY ORDERED that plaintiff's motion for leave to
proceed without prepayment of the filing fee (ECF No. 2) is
FURTHER ORDERED that the Milwaukee County Jail is DISMISSSED
as a defendant.
FURTHER ORDERED that pursuant to the informal service
agreement between Milwaukee County and this court, copies of
plaintiff's complaint and this order are being
electronically sent today to Milwaukee County for service on
the following ...