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Marlow v. Milwaukee County Jail

United States District Court, E.D. Wisconsin

November 5, 2019

EDDIE MARLOW, Plaintiff,


          William C. Griesbach, United States District Court District Judge

         Plaintiff, an inmate at Milwaukee County Jail and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff's motion for leave to proceed without prepaying the full filing fee and to screen the complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         Plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2) and was assessed an initial partial filing fee of $16.89, but informed the court that he cannot pay the filing fee until he is released. Plaintiff lacks the funds to pay the partial filing fee. Therefore, the court waives the initial partial filing fee. 28 U.S.C. § 1915(b)(4).

         Screening of the Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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. 28 U.S.C. § 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).

         To state a cognizable claim under the federal notice pleading system, 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).

         Allegations of the Complaint

         Plaintiff claims that an inmate kicked him in the face while he was handcuffed to a bench during his booking at Milwaukee County Jail. The alleged kick occurred when one of the officers walked away from the inmate. When Plaintiff asked for medical assistance, one of the officers said “welcome” to county jail, instead of providing assistance. Plaintiff claims he suffered a swelled lip and a bump on the back of his head from his head hitting the wall. He has also suffered mental distress, including bad dreams of being kicked in the face. According to Plaintiff, the police took photos of his injuries and asked if he would like to press charges on the inmate.

         The Court's Analysis

         Plaintiff names Milwaukee County Jail as the only defendant in his lawsuit. Milwaukee County Jail is not a suable entity under 42 U.S.C. § 1983. Dawson v. Milwaukee Cty., No. 15-CV-76, 2015 WL 13228062, at *2 (E.D. Wis. Nov. 20, 2015); Omegbu v. Milwaukee Cty., 326 Fed.Appx. 940, 942 (7th Cir. 2009); Buchanan v. City of Kenosha, 57 F.Supp.2d 675, 679 (E.D. Wis. 1999). “[T]he doctrine of respondeat superior is not available to a plaintiff in a section 1983 suit.” W. By & Through Norris v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997); see also Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A governmental entity is liable under § 1983 only when its “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694.

         Even if Plaintiff named the police officer described in his complaint as a defendant, Plaintiff's allegations against him would not support an Eighth Amendment claim for deliberate indifference to either a substantial risk of harm or to a serious medical need. Because there is no allegation that the officer had any reason to believe Plaintiff would be attacked in the brief period of time he left him in the booking area, there is no basis for concluding the officer was deliberately indifferent to a risk of harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”). Since Plaintiff appears to have been a pretrial detainee at the time of the incident, the Fifth Amendment, as opposed to the Eighth Amendment likely applies. But the result is the same. Vince v. Rock County, 410 Fed.Appx. 970, 971 (7th Cir. Nov. 18, 2010) (“Farmer concerned the eighth amendment; Vince does not contend that the fifth amendment, which applies to pretrial detainees, see Bell v. Wolfish, 441 U.S. 520 (1979), employs a different standard.”).

         Any claim of deliberate indifference to Plaintiff's medical needs likewise fails. Establishing a claim of deliberate indifference to a serious medical need requires allegations of (1) an objectively serious medical condition and (2) an official's deliberate, i.e. subjective, indifference to that condition. See Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). The medical condition must be objectively and subjectively serious. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). “A medical need is considered sufficiently serious if the inmate's condition ‘has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would perceive the need for a doctor's attention.'” Id. (citing Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).

         Notably, not all physical injuries amount to an objectively serious medical condition. The Seventh Circuit has found that a “split lip and swollen cheek” are not sufficiently serious. See Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir. 2006). Likewise, a “one-inch laceration to an arrestee's temple, that was neither deep enough or long enough to require stitches, and a scraped elbow did not require prompt medical attention under the Eighth Amendment.” Id. (citing Davis v. Jones, 936 F.2d 971, 972-73 (7th Cir. 1991)). Plaintiff's allegations that he suffered a “swelled lip” and a “bump” to the head are not facts that suggest a medical condition so severe that prompt treatment was necessary or obvious. If Plaintiff's ...

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