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Jenkins v. City of Kenosha Wisconsin

United States District Court, E.D. Wisconsin

June 6, 2018



          J. P. Stadtmueller U.S. District Judge

         Plaintiff 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).[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.

         The 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. § 1915A(b).

         A claim 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) (citations omitted).

         To 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).

         In 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.

         To 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, 106 (1976)).

         Jenkins' 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.

         The 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.

         Once at 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.

         Based 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.

         Since 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).

         Jenkins' 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.

         The 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 ...

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