United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
a prisoner proceeding pro se, filed a complaint
under alleging that his rights were violated. (Docket #1).
This matter comes before the Court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2). Plaintiff
has been assessed and paid an initial partial filing fee of
$35.52. 28 U.S.C. § 1915(b)(1).
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). 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);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. The court is obliged to give
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)).
alleges that on April 23, 2017, he was in a car accident in
which he suffered head and neck injuries. (Docket #1 at 2).
He does not explain the circumstances of the accident or who
else was involved. He does allege, however, that he was not
offered, nor did he receive, any medical attention after the
accident. Id. He is presently undergoing physical
therapy at his institution to alleviate pain from his
injuries. Id. He blames his injuries on Defendant,
the Shorewood Police Department (“SPD”).
nature of Plaintiff's claim is not entirely clear. He
says in his complaint that he sues under state law,
presumably for negligence, and seeks $2, 000. Id. at
3. This allegation would ordinarily mean that Plaintiff's
case would have to be dismissed. To bring state-law claims in
federal court, Plaintiff must allege either (1) that the
parties are diverse in citizenship and that the amount in
controversy exceeds $75, 000, or (2) that he has a claim
under federal law which arises from the same operative set of
facts as his state law claim. See 28 U.S.C.
§§ 1332, 1367. Plaintiff's allegations
foreclose the exercise diversity jurisdiction, as he and SPD
are residents of the same state, and he does not allude to
any claim under federal law supporting the exercise of
supplemental jurisdiction. Thus, he cannot bring his
state-law claim in this Court on its own.
the Court gathers that Plaintiff may be attempting to state a
claim under federal law against the SPD or its officers under
42 U.S.C. § 1983. To state a claim for relief under
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. Cnty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009); Gomez v. Toledo, 446 U.S. 635,
640 (1980). In this case, Plaintiff appears to suggest that
he was denied needed medical care by the SPD, in violation of
his rights under the Eighth and/or Fourteenth Amendments.
See Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.
2010) (to state a claim for deliberate indifference to a
serious medical need, the inmate must allege that (1) he had
an objectively serious medical condition, (2) the defendant
knew of the condition and was deliberately indifferent to
treating it, and (3) this indifference caused him some
because Plaintiff does not explain the circumstances of the
April 23, 2107 car accident, the Court cannot allow a Section
1983 claim to proceed at this time. If Plaintiff and a third
party were in an accident and an SPD officer responding to
the scene refused to obtain medical care for Plaintiff, he
would have no claim, since the state's constitutional
duty to provide medical care only attaches once the plaintiff
is in state custody. By the same token, if Plaintiff was in
custody at the time of the accident or was taken into custody
after the accident, the complete denial of medical care might
give rise to a constitutional claim. At present, Plaintiff
has not provided enough information for the Court to
reasonably infer facts giving rise to an actionable Section
Plaintiff's prospective Section 1983 may be deficient if
he seeks to proceed only against the SPD. State officials are
liable for their own constitutional violations. See
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
The agencies that employ them, like the SPD, are not directly
responsible for constitutional violations perpetrated by
their employees. Monell v. Dep't of Social
Servs., 436 U.S. 658 (1978). Instead, the SPD can only
be liable under Section 1983 if one of its policies or
widespread customs or practices was the moving force behind
the constitutional violation. Darchak v. City of Chicago
Bd. of Educ., 580 F.3d 622, 629 (7th Cir. 2009).
Plaintiff indicates that his injuries resulted from
“violations of policies and procedures” by the
SPD, (Docket #1 at 2), but this comes nowhere close to an
allegation that the SPD's own policy or custom, rather
than the action of its employees, caused Plaintiff harm.
Thus, if Plaintiff wishes to assert a Section 1983 claim, he
must consider whether to bring that claim against the
individual SPD officers who harmed him or against the SPD,
with the understanding that a claim against the SPD requires
the additional supporting allegations discussed herein.
Court will allow Plaintiff an opportunity to amend his
complaint to correct the above-described deficiencies. If he
chooses to offer an amended complaint, Plaintiff must do so
no later than July 24, 2018. If he does not
do so, this action will be dismissed. Plaintiff is advised
that the amended complaint must bear the docket number
assigned to this case and must be labeled “Amended
should remember that a successful complaint alleges
“the who, what, when, where, and how: the first
paragraph of any newspaper story.” See DiLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
Additionally, Plaintiff should be aware that an amended
complaint supersedes the prior complaint and must be complete
in itself without reference to the original complaint.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist.
No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In
Duda, the Seventh Circuit emphasized that in such
instances, the “prior pleading is in effect withdrawn
as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
Pintado v. Miami-Dade Housing Agency, 501 F.3d 1241,
1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint is
received, it will be screened pursuant to 28 U.S.C. §
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IS FURTHER ORDERED that on or before July
24, 2018, Plaintiff shall file an amended complaint