United States District Court, E.D. Wisconsin
ORDER SCREENING COMPLAINT (DKT. NO. 1), GRANTING
DEFENDANTS' MOTION TO DISMISS (DKT. NO. 4) AND DISMISSING
CASE FOR LACK OF SUBJECT-MATTER JURISDICTION
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, representing herself, filed this complaint on
March 18, 2019, alleging that defendant Dr. Taylor
Sonnenberg-who worked for defendant Froedtert Memorial
Hospital-negligently failed to disclose that the
plaintiff's mother, Edna Baker, had a dislocated
shoulder. Dkt. No. 1 at 2-3. The plaintiff named two
defendants: Froedtert Memorial Hospital and Dr. Sonnenberg.
Id. She paid the $400 filing fee for a civil case.
The clerk's office originally assigned the case to
Magistrate Judge Nancy Joseph, but later reassigned the case
to this court. While the docket does not indicate that the
plaintiff asked for a summons or served the defendants, the
defendants since have filed a motion to dismiss the case,
arguing that the court has no subject- matter personal
jurisdiction, that the plaintiff did not affect proper
service and that the complaint does not state a claim for
which a federal court can grant relief. Dkt. No. 4. Because
the court agrees that it does not have subject-matter
jurisdiction, the court will grant the motion and dismiss the
Failure to Properly Serve the Defendants
defendants argue that the plaintiff has not complied with
Federal Rule of Civil Procedure 4(m), which requires a
plaintiff to serve a defendant within ninety days after the
complaint is filed. Dkt. No. 5 at 2-3. They ask the court to
dismiss the complaint for insufficient service of process
under Fed.R.Civ.P. 12(b)(5). Id. Rule 4(m) requires
the plaintiff to serve the complaint on the defendants within
ninety days after the complaint is “filed.” The
Seventh Circuit has held that when a plaintiff applies to
proceed without prepaying the filing fee, 28 U.S.C.
§1915(a) “implies a different approach.”
Williams-Guice v. Bd. of Educ. of City of Chi., 45
F.3d 161, 162 (7th Cir. 1995). The court noted that the
statute says that the court may authorize the filing
of a suit without prepaying of the filing fee; that language
“impl[ies] that depositing a copy of the complaint with
the clerk does not commence the litigation . . . .”
Id. (emphasis in the original). “Only the
judge's order permitting the plaintiff to proceed in
forma pauperis, and accepting the papers for filing,
would commence the action.” Id.; see
also, Stephenson v. Peterman, No. 04-C-1228,
2006 WL 8449929, at *3 (E.D. Wis. Feb. 6, 2006).
plaintiff here is representing herself, but she did
not file a motion under §1915 asking the court
to waive the filing fee. That means that the ninety-day
service requirement in Rule 4(m) applied to the plaintiff,
and she was required to serve the complaint on the defendants
by June 16, 2019. The defendants assert that the plaintiff
did not serve them by that date. That fact justifies
dismissal of the complaint. But because the plaintiff
represents herself and may consider re-filing in the future,
the court also analyzes the defendants' claim that this
federal court does not have jurisdiction to hear the
Lack of Subject-Matter Jurisdiction
when a self-represented plaintiff pays the filing fee, 28
U.S.C. §1915(e)(2)(B) requires the court to dismiss that
plaintiff's case at any time if the court determines the
case is frivolous or malicious, fails to state a claim on
which a federal court may grant relief, or seeks monetary
relief against a defendant who is immune from such relief.
District courts “screen” complaints filed by
unrepresented plaintiffs to decide whether they fall into any
of these categories.
federal notice pleading system requires a “short and
plain statement of the claim showing that [she] is entitled
to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff need
not plead specific facts, and her 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)). Even so,
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). “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 rise above a speculative level.
Twombly, 550 U.S. at 555 (citation omitted). Because
the plaintiff represents herself, the court must liberally
construe the allegations of her complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Allegations of Plaintiff's Complaint
plaintiff states that she is a Wisconsin citizen and wishes
to sue Froedtert Memorial Hospital and Dr. Taylor Sonnenberg.
Dkt. No. 1. Under her “statement of claim”
section, the plaintiff states that she holds the power of
attorney for her mother, Edna McClinton. Id. at 2.
She says that on March 18, 2016, paramedics transported her
mother from the Lake Country nursing home to Froedtert
Memorial Hospital Emergency Department “seeking
treatment for her swollen left arm.” Id. The
plaintiff says that defendant Sonnenberg was the attending
physician that day. Id. She charges Sonnenberg with
failing to disclose to McClinton the fact that an x-ray
showed McClinton's shoulder to be dislocated.
Id. The plaintiff alleges that Sonnenberg discharged
her mother without providing proper treatment and that the
injury went undiscovered until July 18, 2018. Id. at
the “jurisdiction” heading of the plaintiff's
complaint, she checked the box indicating that she is
pursuing a claim for a violation of federal law. Id.
at 4. She does not specify which federal law she is
proceeding under. In her “Relief Wanted” section,
the plaintiff asks for “award of money for damages,
emotional stress, and pain and suffering due to condition is
now chronic. Also, reimbursement for any and all legal
defendants assert that this court does not have jurisdiction
to hear the plaintiff's case based on the facts she has
alleged. Dkt. No. 5 at 3-4. They point out that a federal
court may decide a case only if it involves a violation of a
federal law or a provision of the federal Constitution, or if
it involves citizens of different states. Id. at 3.
The defendants assert that because the case does not involve
citizens of different states, the only basis for this ...