United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Feeonquay Jenkins (“Jenkins”), who is
incarcerated at Kenosha County Jail, proceeds in this matter
pro se. He filed a complaint alleging that the
defendants violated his constitutional rights. (Docket
#1).Jenkins then filed an amended complaint and
a second amended complaint. (Docket #10 and #11). Upon
Jenkin's refusal to the jurisdiction of the magistrate
judge originally assigned to this case, see (Docket
#5), the case was reassigned to this branch of the court.
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. Id. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“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- 10 (7th Cir. 2003)
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 Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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, second, “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. Section 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. 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 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,
complaint alleges that on March 27, 2016 he was shot and
taken to Froedtert Hospital of Wisconsin (the
“Hospital”). (Docket #1 at 2). Sometime during or
after being treated there, he realized some of his personal
property was missing. Id. While he was in surgery,
his child's mother texted Jenkins' phone and a family
member who was at the Hospital responded to the text from
Jenkins' phone. Id. at 3. The child's mother
then went to the Hospital, despite the fact that she holds a
no contact order against Jenkins. Id. She then
apparently called the Kenosha County Police to report that
Jenkins had sent her a threatening text message. Id.
Kenosha police went to the Hospital about a week later, while
Jenkins was still recovering, and apparently arrested him for
violating the no contact order. Id. The police took
Jenkins to Kenosha County Jail (the “Jail”).
Id. Jenkins believes the Hospital should not have
released him to the custody of the police because he had not
yet recovered from the gunshot wound that put him in the
Hospital. Id. at 3-4.
the Jail, Jenkins did not receive proper care for his ongoing
medical needs, particularly the open wounds on his body, and
he was not given pain medication. Id. at 4. His
lungs filled up with fluids and he had to be rushed to a
hospital in Kenosha. Id. That hospital was not
equipped to provide the care Jenkins needed, so he was then
rushed back to Froedtert Hospital. Id.
on these allegations, Jenkins seeks to bring a medical
malpractice claim against Froedtert Hospital and its doctors
and nurses. Id. at 5-7. He argues that they were
negligent in discharging him too early. Id. Jenkins
also seeks to bring a claim against the Jail for its failure
to properly care for his urgent and serious medical issues.
Id. at 6. He states this claim as one for a
“breach of duty of care.” Id. Jenkins
asks for $150 million in damages for the harm he suffered.
Id. at 8.
the filing of his complaint, Jenkins filed two amended
complaints, each providing new or slightly different details
about the events described above and adding allegations about
individual defendants. (Docket #10 and #11).
complaint has several deficiencies that must be remedied
before Jenkins' case can proceed. First, Jenkins'
Section 1983 complaint can proceed only against governmental
entities and persons. The Hospital is not a governmental
entity and its staff members are not government officials.
When a plaintiff brings a Section 1983 claim against a
defendant who is not a government official or employee, the
plaintiff must show that the private entity acted under the
color of state law. Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 822 (7th Cir. 2009). For example, a
private physician who is employed by the state to provide
medical services to state prison inmates acts under the color
of state law for purposes of Section 1983. Id. at
824 (citing West v. Atkins, 487 U.S. 42 (1988)). But
an “emergency medical system that has a preexisting
obligation to serve all persons who present themselves for
emergency treatment” is not an entity acting under the
color of state law for the purposes of Section 1983.
Id. at 827. Jenkins' allegations against the
Hospital and its staff, as currently pled, make clear that
they were not acting under the color of state law on March
27, 2016 when Jenkins arrived at the Hospital for treatment
of his gunshot wound; therefore, his claims as pled against
those defendants cannot proceed.
Jail and its medical staff, on the other hand, are state
actors for the purposes of a Section 1983 claim. They can be
held liable under Section 1983 for their constitutional
misconduct with respect to Jenkins. His allegations against
the Jail medical staff, though lacking in detail in terms of
the names of wrongdoers and what they personally did or did
not do, could state a claim for deliberate ...