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Fleischman v. Matz

United States District Court, E.D. Wisconsin

July 31, 2018

CHRISTOPHER J. FLEISCHMAN, Plaintiff,
v.
JOHN MATZ, TODD CHRISTOPHERSON, and JOHN DOES, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO FILE A SECOND AMENDED COMPLAINT (DKT. NO. 12) AND SCREENING THE SECOND AMENDED COMPLAINT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         This case is assigned to U.S. Magistrate Judge David E. Jones. Although the plaintiff consented to Judge Jones handling the case, the defendants have not yet had the opportunity to decide whether to consent because, until now, the court has not screened the complaint and decided whether it should be served on the defendants. Because both parties have not yet consented to the magistrate judge hearing the case, the clerk's office has referred the case to this district court judge to screen the complaint and decide whether it should be served on any of the defendants. The court will explain which claims the plaintiff has stated against which defendants, and then it will return the case to Judge Jones for further proceedings.

         I. Plaintiff's Motion to File Second Amended Complaint (Dkt. No. 12)

         The plaintiff filed his original complaint on November 17, 2017. Dkt. No. 1. About a month later, Judge Jones entered an order informing the plaintiff that he had failed to state a claim, because he did not give the court enough facts to identify who had allegedly violated his constitutional rights, or what any person had done to allegedly violate those rights. Judge Jones instructed the plaintiff to file an amended complaint, and to “focus his allegations on what happened to him to lead him to believe that his constitutional rights were violated.” Dkt. No. 7 at 4.

         On February 1, 2018, the court received an amended complaint from the plaintiff. Dkt. No. 10. About two weeks later, Judge Jones entered an order explaining to the plaintiff that, while his allegations that jail staff failed to protect him from other inmates' threats, harassment and discrimination might give rise to a claim, the plaintiff could not proceed on those allegations because he had not sued a proper defendant. Dkt. No. 11. Rather than suing the person or persons who allegedly failed to protect him, the plaintiff had sued the County of Winnebago and the Winnebago County Jail. Judge Jones again told the plaintiff that he had to sue the people allegedly responsible for violating his rights, because “[t]here is no supervisory liability, collective liability, or vicarious liability under 42 U.S.C. §1983.” Dkt. No. 11 at 3 (citing Pacelli v. deVito, 972 F.2d 871, 877-78 (7th Cir. 1992)).

         Judge Jones also explained to the plaintiff that (1) the plaintiff could not sue the Winnebago County Jail because the Jail was not a “person” and, under §1983, a plaintiff must sue the persons responsible for the alleged misconduct; and (2) he could not sue his fellow inmates because, under §1983, a plaintiff can sue only “state actors.” Dkt. No. 11 at 4. Judge Jones gave the plaintiff another opportunity to amend his complaint.

         On March 5, 2018, the court received from the plaintiff a document titled, “Motion to File Second Amended Complaint Curing Defects in Amended Complaint.” Dkt. No. 12. Judge Jones already had given the plaintiff permission to file a second amended complaint, so he did not need to ask for permission. The “motion, ” however, appears to be the plaintiff's second amended complaint. The court will grant the plaintiff's motion and ask the clerk's office to docket the plaintiff's motion as the operative complaint.

         II. Screening the Plaintiff's Second Amended Complaint

         A. Federal Screening Standard

         The court must dismiss a complaint if the plaintiff raises claims that are legally “frivolous or malicious, ” that fail to state a claim upon which a federal court may grant relief, or that seek monetary relief from a defendant who is immune from that relief. 28 U.S.C. §1915A(b).

         To 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).

         To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1) someone deprived him of a right secured by the Constitution or laws of the United States; and 2) that person 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, 106 (1976)).

         B. The Plaintiff's Allegations

         The plaintiff now has named Winnebago County Sheriff John Matz (the plaintiff mistakenly spelled his name “Motz”), Chief Deputy Todd Christopherson, John ...


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