United States District Court, E.D. Wisconsin
William C. Griesbach, United States District Court District
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.
to Proceed without Prepayment of the Filing Fee
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).
of the Complaint
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).
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).
of the Complaint
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
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.
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
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)).
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