United States District Court, E.D. Wisconsin
ORDER SCREENING SECOND AMENDED COMPLAINT (DKT.,
PAMELA PEPPER, United States District Judge.
Robert D. Grovogel is representing himself, and was a
prisoner when he filed his complaint under 42 U.S.C.
§1983, challenging various aspects of his confinement at
the Racine County Jail. Dkt. No. 1. On March 8, 2018, the
court screened the amended complaint under 28 U.S.C.
§1915A, and told the plaintiff that if he wanted to
proceed, he needed to file a second amended complaint limited
to his claim that the jail failed to treat his shoulder
injury. Dkt. No. 18 at 4. On April 6, 2018, the court
received the plaintiff's second amended complaint, which
the court now has reviewed under 28 U.S.C. §1915A.
Screening the Plaintiff's Second Amended
Federal Screening Standard
requires the court 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).
The court must dismiss a complaint if the plaintiff raises
claims that are legally “frivolous, malicious, ”
or 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, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
state a claim 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
defendant was acting under color of state law.
Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court
gives a pro se plaintiff's 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,
The Plaintiff's Allegations
plaintiff has sued the Racine County Jail and two nurses at
the jail whose names he does not know: RN Jane Doe and LPN
Jane Doe. As the court instructed him, the plaintiff has
limited his second amended complaint to his allegations
related to the treatment of his shoulder injury.
plaintiff was in the Racine County Jail for just shy of a
year, from June 20, 2015 through June 18, 2016. Dkt. No. 19
at 2. The plaintiff alleges that on May 16, 2016, he fell at
the jail, felt a “pop, ” and could not move his
shoulder as he could before the fall. Id. at 2-3. He
wrote a “request” to the “jailer” for
a “nurses request, ” and two days later, nurse
staff saw the plaintiff. Id. at 3. They took the
plaintiff's “vitals” and told him that
nothing was wrong. Id.
plaintiff subsequently complained that he could not bear
weight on his left shoulder. Id. The nurse saw him
and said that all he needed was “an
anti-inflammatory/mild steroid.” Id. The
plaintiff took this medication for two days, but his shoulder
pain worsened, “not because of the meds., but because
the diagnosis was incorrect.” Id. The
plaintiff states that, “[k]nowing that I was not going
to be given correct treatment, I just lived with the
relief, the plaintiff seeks compensatory damages.
Id. at 4.
The Court's Analysis
moving to the plaintiff's substantive claims, the court
notes that the plaintiff cannot sue the Racine County Jail
under §1983. Section 1983 allows a plaintiff to sue a
“person” who, acting under color of law, violates
his constitutional rights. The Racine County Jail is not a
person-it is not an individual subject to suit under
§1983. It is true that under some circumstances, a
municipality-which is not a person-may be sued under
§1983. See Monell v. Dep't of Social Serv's
of City of New York, 436 U.S. 658 (1978). But Federal
Rule of Civil Procedure 17(b) says that a defendant in a
federal lawsuit must have the legal capacity to be sued.
State law determines whether an entity has that capacity.
Webb v. Franklin Cty. Jail, Case No. 16-cv-1284-NJR,
2017 WL 914736 at *2 (S.D. Ill. Mar. 8, 2017). In Wisconsin,
the jail is an arm of the sheriff's department. Under
Wisconsin law, the sheriff's department is an arm of the
County. See Abraham v. Piechowski, 13 F.Supp.2d 870,
877-79 (E.D. Wis. 1998). This means that neither the jail nor
the sheriff's department are ...