United States District Court, E.D. Wisconsin
William C. Griesbach, District Judge
Christopher Daniel Brown, an inmate at the Milwaukee County
House of Corrections, filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated while in custody at the Milwaukee County Jail. This
matter comes before the court on Brown'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
the plaintiff is no longer incarcerated, he remains subject
to the requirements of the Prison Litigation Reform Act
(PLRA) because he was incarcerated at the time he filed his
complaint. The PLRA gives courts discretion to allow
plaintiffs to proceed with their lawsuits without prepaying
the $350 filing fee, as long as they comply with certain
requirements. 28 U.S.C. § 1915. One of those
requirements is that the plaintiff pay an initial partial
filing fee. The plaintiff has been assessed an initial
partial filing fee of $71.53; he paid $72.00 on October 15,
2019. The plaintiff is required to pay the remainder of the
fee over time as he is able.
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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, the 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).
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evening of June 29, 2019, Brown was brought to Milwaukee
County Jail in a sheriff's department vehicle. He was
pulled out of the Sheriff's Department vehicle and
dropped on his head by Deputy John Doe. Brown alleges that he
sustained a mouth laceration from this fall, which also
caused him to go in and out of consciousness.
was not provided medical attention after he was dropped.
Instead, he alleges he was handcuffed and leg-cuffed to a
metal chair in a sitting area. Brown was left in the chair
until the officers unstrapped him and told him to be a
“man” so they could take his photo. When Brown
could not hold himself up, several officers held him up so
his photograph could be be taken. After his photo, Brown was
placed in segregation and remained there for several days
without medical care as he went in and out of consciousness.
Food was brought to Brown's secured cell because he could
not move to eat. Brown alleges that he was not medically
cleared for over a week when he filed a medical request and a
initial matter, the Milwaukee County Sheriff's Department
is not a suable entity under 42 U.S.C. § 1983. It is
“not a legal entity separable from the county
government which it serves and is therefore, not subject to
suit.” Whiting v. Marathon Cty. Sheriff's
Dep't, 382 F.3d 700, 704 (7th Cir. 2004). While the
County is a suable entity, Brown fails to allege any claim
against it. “A local governing body may be liable for
monetary damages under § 1983 if the unconstitutional
act complained of is caused by: (1) an official policy
adopted and promulgated by its officers; (2) a governmental
practice or custom that, although not officially authorized,
is widespread and well settled; or (3) an official with final
policy-making authority.” Thomas v. Cook County
Sheriff's Dept., 604 F.3d 293, 303 (7th C2010)
(citing Monell v. Dept. of Social Services of New
York, 436 U.S. at 658, 690 (1978). Brown alleges no such
policy, practice or custom here. Nor does he allege a
violation by a person with final policy-making authority. The
Sheriff's Department will therefore be dismissed.
allegation that he was dropped on his head by Deputy John Doe
may state a claim for excessive force in violation of the
Eighth Amendment proscription of cruel and unusual
punishment, assuming Brown had been convicted, Hudson v.
McMillian, 503 U.S. 1 (1992), or the Due Process Clause
of the Fourteenth Amendment, if he had not. Kingsley v.
Hendrickson, 135 S.Ct. 2466 (2015). Likewise, the
allegation that Brown was not provided medical care and left
in segregation for several days, even though he was drifting
in and out of consciousness, may state a claim for deliberate
indifference to serious medical needs in violation of the
Eighth or Fourteenth Amendments, again depending upon whether
he was an inmate serving a sentence or a pretrial detainee.
Estelle v. Gamble, 429 U.S. 97 (1976); Pardue v.
Fromm, 94 F.3d 254 (7th Cir. 1996). The problem with
these claims, however, is that Brown has failed to identify
the person or persons who may be liable.
liability under § 1983 is personal; the doctrine of
respondeat superior, under which the acts of the
employee in the scope of employment are attributable to the
employer, does not apply. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). “Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Id. Moreover, Fed.R.Civ.P. 8(a)
requires that the complaint give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which
it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506,
513 (2002); Iqbal, 556 U.S. at 678 (“A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is ...