United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at Prairie Du Chien Correctional
Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on
Plaintiff's motion to proceed in forma pauperis.
(Docket #2). Plaintiff has been assessed and paid an initial
partial filing fee of $7.00. 28 U.S.C. § 1915(b)(4).
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the 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). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the…claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted); Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
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. Cnty. 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,
complains that he was arrested (for reasons not stated in the
complaint) on March 28, 2016. (Docket #1 at 2). He was
admitted to the West Allis Memorial Hospital that same day.
Id. While there, he was diagnosed with a meningioma,
which is a tumor formed in the meninges. Id. He was
released into the Milwaukee County Jail (the
“Jail”) on March 30, 2016. Id. He was
then sent to the Milwaukee County House of Corrections (the
“House of Corrections”) sometime later.
Id. He alleges that officials at the House of
Corrections failed to take him to follow-up medical
appointments, apparently related to his meningioma, which
were scheduled for April 20, 2016 and June 2, 2016.
Id. at 2-3. After this occurred, Plaintiff alleges,
a judge ordered the Jail and the House of Corrections to
reschedule those appointments and then ensure Plaintiff
attended them. Id. at 3. He was then taken from the
House of Corrections back to the Jail. Id. The Jail
never complied with the judge's order “because of
negligence.” Id. Plaintiff “seeks
damages for violating his rights and refusing him medical
complaint fails to state a claim upon which relief may be
granted for a number of reasons. First, while he claims that
his “rights” were violated, he does not state
with specificity which rights he believes were violated. In
particular, if Plaintiff is seeking to recover under 42
U.S.C. § 1983 for Defendant's inadequate medical
care, in violation of his rights under the Eighth Amendment,
he should so state. If he has some other theory for recovery,
he should make that clear. Without tying his case to a
particular cause of action, the Court has no way to analyze
assuming Plaintiff is in fact seeking to hold Defendant
liable under Section 1983 for constitutionally inadequate
medical care, he fails to allege facts sufficient to state
such a claim. To state a claim of deliberate indifference to
serious medical need, in violation of the Eighth Amendment,
Plaintiff must allege: (1) an objectively serious medical
condition; (2) that Defendant knew of the condition and was
deliberately indifferent in treating it; and (3) this
indifference caused Plaintiff some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). “With
regard to the deliberate indifference prong, ” the
Gayton court instructs that:
the plaintiff must show that the official acted with the
requisite culpable state of mind. This inquiry has two
components. The official must have subjective knowledge of
the risk to the inmate's health, and the official also
must disregard that risk. Evidence that the official acted
negligently is insufficient to prove deliberate indifference.
Rather, “deliberate indifference” is simply a
synonym for intentional or reckless conduct, and that
“reckless” describes conduct so dangerous that
the deliberate nature of the defendant's actions can be
Id. Plaintiff fails to allege what injury he
suffered as a result of Defendant's failure to reschedule
his follow-up medical appointments. Further, although
Plaintiff alleges that Defendant failed to comply with a
court order to reschedule his follow-up medical appointments,
he claims that this occurred “because of
negligence.” Mere negligence cannot support a claim of
deliberate indifference. Estelle, 429 U.S. at
105-06; Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
even if Plaintiff had stated a claim for deliberate
indifference to his medical needs, he has sued the wrong
entity. The Milwaukee County Jail is not itself a suable
entity. Smith v. Knox Cnty. Jail, 666 F.3d 1037,
1040 (7th Cir. 2012); Maier v. Wood Cnty.
Courthouse, No. 07-C-580-C, 2007 WL 3165825, at *2 (W.D.
Wis. Oct. 24, 2007). He must name a proper defendant, such as
the individual Jail officials who deprived him of his
these deficiencies, the Court will permit Plaintiff to amend
his complaint. If he wants to proceed, Plaintiff must file an
amended complaint curing the deficiencies in the original
complaint as described herein. The amended complaint must be
filed on or before January 9, 2017. Failure
to file an amended complaint within this time period may
result in dismissal of this action. Plaintiff is advised that
the amended complaint must bear the docket number assigned to
this case and must be labeled “Amended
Complaint.” Plaintiff is further advised that a
successful complaint ...