June 7, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 1:16-cv-00285-WCG - William C.
Griesbach, Chief Judge.
Ripple, Rovner, and Hamilton, Circuit Judges.
Ripple, Circuit Judge.
Otis brought this action pro se under 42 U.S.C. § 1983,
alleging that Kayla Demarasse, a Water-ford, Wisconsin police
officer, ignored her obvious need for medical care after
arresting her on suspicion of driving while intoxicated. The
district court dismissed her complaint. Ms. Otis, now
represented by counsel, appeals the dismissal. She contends
that her complaint states a claim for relief and that the
district court erred when it concluded that she had pleaded
herself out of court.
Otis's submissions in the district court fairly allege
that Officer Demarasse knew about her need for medical
attention and responded in an objectively unreasonable
manner. The district court erred in concluding that Ms. Otis
had pleaded herself out of court by attaching the police
report, which contained a version of the facts different from
those in the complaint itself. Accordingly, we vacate the
judgment as to Officer Demarasse and remand for further
proceedings against the officer.
initial version of Ms. Otis's complaint is brief. It
alleges that on September 17, 2014, the Waterford police
stopped her on suspicion of driving while intoxicated, lied
about the stop in written reports, and treated her in a
manner "unjustified" by her "health and civil
rights." Ms. Otis named as defendants the
"Waterford Police Dept." and "Racine County
Human Services." The district court screened the complaint
and dismissed it on the ground that it failed to state a
claim. The court reasoned that the complaint
lacked factual detail about the traffic stop, including the
identity of the arresting officer. Moreover, the court believed
that the Waterford Police Department was not "a suable
entity" and that Ms. Otis's complaint did not allege
a viable claim against the Racine County Department of Human
Services. The court gave Ms. Otis thirty days to
amend her complaint to cure these perceived defects.
Otis's amended complaint added Officer Demarasse as a
defendant. It repeated her allegation that the written police
reports include false statements, and she recounted the
events surrounding her arrest. Officer Demarasse stopped her
at 1:20 a.m., she recalled, while she was driving with her
son, then eleven, to her mother's house in Illinois.
Officer Demarasse noticed the boy in the back seat, asked Ms.
Otis where she was going, and then ordered her out of the
car. Ms. Otis alerted the officer that she was "very
sick and bleeding" heavily and asked to be taken to a
hospital. Officer Demarasse refused and proceeded to
administer a field sobriety test, which, Ms. Otis alleges,
she had difficulty completing because blood was "running
down" her clothes and legs.Ms. Otis felt she was
"about to pass out" and, for the second time, asked
to be taken to a hospital. Once again, Officer Demarasse refused.
Instead, she arrested Ms. Otis, cuffed her hands, and drove
her to the police station. By then Officer Demarasse had been
joined by a second police officer, who took the boy to a
Department of Human Services caseworker.
police station, the amended complaint continues, Ms. Otis was
subjected to additional testing to determine whether she was
under the influence of drugs. A "drug recognition
expert" examined Ms. Otis's eyes, nose, and mouth,
while a medical technician also drew a blood
sample. Officer Demarasse then drove Ms. Otis to
the Racine County jail, where she was booked and held for
another twelve hours. At no time during this encounter,
according to the amended complaint, was Ms. Otis taken to a
hospital. Her blood sample was negative for alcohol and
controlled substances. Authorities eventually dropped the
charge of operating a motor vehicle while intoxicated.
district court also screened this amended complaint. This
time the court authorized Ms. Otis to proceed against Officer
Demarasse on a claim that the officer had denied her due
process by deliberately ignoring a serious medical need. The
right to due process, the court reasoned, protects
"arrested persons and pretrial detainees" from
deliberate indifference to serious medical
needs. The court acknowledged its obligation at
the pleading stage to credit Ms. Otis's allegation that
she was not taken to a hospital after her arrest, but it
encouraged Officer Demarasse to move for summary judgment if
she could produce contrary evidence on this question. The
court also dismissed as defendants the police department and
the Department of Human Services. The court reasoned that the
correct defendants would be the city and county, and neither
was named in Ms. Otis's submissions.
point the litigation should have proceeded, but Ms. Otis
inexplicably sent the district court another supplement to
her complaint plus more than a hundred pages of attachments,
mostly police reports and medical records. In a brief,
handwritten transmittal letter, she explained her wish
"to submit the paperwork to add the City and
County" as defendants "because they play a great
part in this case." Her submission is titled as a
"Second Amended" complaint, and that document
identifies the defendants as "Waterford City and
County." Officer Demarasse's name is omitted.
the attachments is Officer Demarasse's police report,
recounting that she stopped Ms. Otis on a rural highway in
Racine County after watching her car veer off the pavement
while traveling 25 miles per hour in a 55-mile-per-hour zone.
By Officer Demarasse's account, Ms. Otis acted
erratically during the encounter and her pupils were
constricted. Although the officer did not smell alcohol or
any controlled substance, she asked Ms. Otis to perform a
field sobriety test. When Ms. Otis climbed out of her car,
Officer Demarasse did notice blood on her shirt near her
buttocks, prompting the officer to ask about the blood.
According to the officer's report, Ms. Otis attributed
the blood to having her period. Officer Demarasse then asked,
her report continues, why Ms. Otis was not wearing a pad or
tampon, and Ms. Otis simply replied,
"Because." Ms. Otis then began the field sobriety
test but refused to complete it, citing a back injury.
Suspecting that Ms. Otis had taken illegal drugs or
prescription medication, Officer Demarasse arrested her and
put her in the back seat of a squad car (after placing two
gauze pads on the seat).
Demarasse's report contradicts Ms. Otis's allegations
concerning medical treatment. First, it recounts driving Ms.
Otis to Burlington Memorial Hospital "for OWI
processing." At the hospital, the report says,
Officer Demarasse issued Ms. Otis a citation for driving
while intoxicated and obtained her agreement to submit to a
blood test. A medical technician drew two vials of blood, and
another officer conducted "drug recognition
exams." During this time, according to the
police report, Ms. Otis was given a chance to clean herself
and exchange her blood-soaked pants for scrub pants supplied
by the hospital. Because Ms. Otis had no one available to
give her a ride home, Officer Demarasse transported her to
the county jail at 5:00 a.m. for a "12-hour OWI
Otis later requested from Burlington Memorial Hospital any
record of her being treated the day of her arrest, and the
hospital did not have any relevant record. Records from a
different hospital establish that, two days after
her arrest, Ms. Otis was admitted and assigned to intensive
care. She was diagnosed with "[a]cute blood loss anemia
secondary to dysfunctional uterine bleeding, " which
required giving her a blood transfusion.
receiving Ms. Otis's unsolicited third submission, the
district court dismissed her action and struck the filing.
Instead of acknowledging this submission as a supplement to
what Ms. Otis had filed previously, the court characterized
it as a standalone "second amended complaint" that
superseded the initial version as
amended. The court then reasoned that, because
Officer Demarasse is not explicitly named as a defendant in
the caption, Ms. Otis had dropped the officer as a defendant.
The court further concluded that Ms. Otis's complaint did
not state a claim against Waterford or Racine County. The
court noted that a municipality may be liable under §
1983 if a constitutional violation arises from an official
policy or custom. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978). Yet, the district
court explained, Ms. Otis did not attribute her arrest or its
aftermath-including the temporary placement of her son with
the Department of Human Services-to a city or county policy
or custom. In any event, the court asserted, Ms. Otis's
allegations are "no longer plausible" in light of
the documents attached to her latest
submission. Ms. Otis did not deny any of the
information in the attachments, the court said, and those
attachments confirm that she "had her blood drawn, was
examined by hospital staff, and was given clean scrubs to
wear." For this reason, the court concluded,
Ms. Otis cannot plausibly allege that she was not taken to
the hospital after her arrest or that her civil rights were
violated during the episode.
Otis now challenges only the dismissal of her claim against
Officer Demarasse. She does not contest the dismissal of her
Monell claims against either Waterford or Racine
County. We review de novo a dismissal at screening under 28
U.S.C. § 1915(e)(2)(B), and we accept allegations in a
complaint as true, "viewing them in the light most
favorable to the plaintiff." Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013)
(internal quotation marks omitted).
addressing the merits, we must first determine whether this
appeal, which only raises challenges to the claim against
Officer Demarasse, is properly before us. Officer Demarasse
contends that the district court correctly determined that
Ms. Otis's third submission, which contained no
allegations against Officer Demarasse, superseded Ms.
Otis's second submission, effectively waiving any claims
against the officer. In support of this contention, Officer
Demarasse notes that "the District Court's local
rules do not allow parties to supplement complaints and, even
if she could have supplemented her complaint under the local