United States District Court, E.D. Wisconsin
CHRISTOPHER J. FLEISCHMAN, Plaintiff,
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Plaintiff's Motion to File Second Amended Complaint (Dkt.
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.
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
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
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.
Screening the Plaintiff's Second Amended
Federal Screening Standard
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).
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) 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)).
The Plaintiff's Allegations
plaintiff now has named Winnebago County Sheriff John Matz
(the plaintiff mistakenly spelled his name
“Motz”), Chief Deputy Todd Christopherson, John