United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE.
who is incarcerated at the Milwaukee County Jail (the
“Jail”), filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). In its scheduling order, the Court
granted Plaintiff leave to amend his complaint prior to March
1, 2018. (Docket #15 at 1). On February 28, 2018, Plaintiff
submitted an amended complaint, (Docket #18), which the Court
will now screen pursuant to 28 U.S.C. § 1915A.
the payment of any fee, Court is required to screen
complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a
governmental entity. Id. § 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. Id. §
1915A(b). The same standards applicable in the first
screening order remain applicable here. (Docket #8 at 1-3).
allegations in the amended complaint are functionally
identical to those in the original complaint. As before,
Plaintiff alleges that he received inadequate medical care
for an injury to his finger sustained during an attack by a
fellow inmate. (Docket #18 at 2). Plaintiff claims that two
medical personnel at the Jail, identified as “Nurse
Jackie” and “Dr. Mercy, ” as well as a
“mobile x-ray employee, ” identified only as John
or Jane Doe, misdiagnosed his broken finger and failed to
treat his ongoing complaints of pain. Id. at 2-3.
This is, as the Court previously held, sufficient for
screening purposes to state a claim of deliberate
indifference to a serious medical need, in violation of the
Eighth Amendment. See (Docket #8 at 6); Gayton
v. McCoy, 593 F.3d 610, 620 (7th Cir.
only major difference between the original and amended
complaints is that Plaintiff has now identified two of the
three defendants. See (Docket #18 at 1-2). In the
original complaint, Plaintiff identified all of the
defendants as Does except the Milwaukee County Sheriff,
Richard Schmidt (“Schmidt”). (Docket #8 at 7).
The Court found that Plaintiff's claim of deliberate
indifference could not proceed against Schmidt, as Schmidt
had no involvement in or knowledge of Plaintiff's medical
care. Id. However, the Court allowed Schmidt to be
served so that Plaintiff could undertake discovery to learn
the identities of the true defendants. Id. at 7-8.
In the scheduling order, the Court set a deadline of May 1,
2018 for Plaintiff to identify the Does or they would be
dismissed. (Docket #15 at 2-3).
appears Plaintiff has been successful in identifying Nurse
Jackie and Dr. Mercy but has not been able to discover the
identity of the “mobile x-ray employee.”
See (Docket #18-1 at 1-2). In a letter attached to
his amended complaint, Plaintiff describes his efforts toward
that end. He reports that he has written letters to the Clerk
of this Court and to Schmidt's counsel, neither of whom
has provided the person's identity. Id. at 1.
Similarly, informal conversations with correctional officers
and other Jail medical staff have not been fruitful.
Id. Of course, none of these actions was guaranteed
any measure of success, as letters and conversations are not
a substitute for discovery requests served in conformity with
the Federal Rules of Civil Procedure. Thus, it is not
surprising that Plaintiff has not reaped much from his
light of Plaintiff's amended allegations and his
continuing efforts to identify the remaining Doe defendant,
the wisest use of the parties' and the Court's
resources will be to proceed as follows. First, the Court
will dismiss Schmidt as a defendant and order service on
Nurse Jackie and Dr. Mercy. Second, once they are served and
enter their appearances, Plaintiff can use the discovery
procedures outlined in the Federal Rules of Civil Procedure
to request that Nurse Jackie and Dr. Mercy identify the
remaining Doe defendant. The Court will issue an amended
scheduling order once Nurse Jackie and Dr. Mercy appear,
including a new deadline by which Plaintiff must identify the
remaining Doe defendant.
reasons stated above, Plaintiff shall be permitted to proceed
on a claim of deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment, against Nurse
Jackie, Dr. Mercy, and the mobile x-ray employee, sued as
John or Jane Doe. 28 U.S.C. § 1915A(b).
IT IS ORDERED that Plaintiff's amended
complaint (Docket #18) shall be the operative complaint in
IS FURTHER ORDERED that Defendant Richard Schmidt be
and the same is hereby DISMISSED from this
IS FURTHER ORDERED that the United States Marshal
shall serve a copy of the amended complaint and this Order
upon Defendants pursuant to Federal Rule of Civil Procedure
4. Plaintiff is advised that Congress requires the U.S.
Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). Although Congress requires
the court to order service by the U.S. Marshals Service, it
has not made any provision for these fees to be waived either
by the court or by the U.S. Marshals Service. The current fee
for waiver-of-service packages is $8.00 per item mailed. The
full fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). The U.S. Marshals will give Plaintiff
information on how to remit payment. The court is not
involved in collection of the fee;
IS FURTHER ORDERED that Defendants shall file a
responsive pleading to the amended complaint; and
IS FURTHER ORDERED that a copy of this Order be sent
to the officer in charge of the ...