United States District Court, E.D. Wisconsin
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE AND SCREENING THE COMPLAINT
Joseph United States Magistrate Judge.
October 28, 2019, Danien Jonas Walls filed a complaint
against Milwaukee County Jail under 42 U.S.C. § 1983.
(ECF No. 1). He was not incarcerated at the time he filed his
complaint. Walls also moves for leave to proceed without
prepayment of the filing fee (in forma pauperis).
(ECF No. 2). Because I find Walls is indigent and his
complaint, once amended as described below, potentially has
merit, I will grant his motion.
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure indigent litigants meaningful
access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Nietzke v. Williams, 490 U.S.
319, 324 (1989). To authorize a litigant to proceed in
forma pauperis, the court must first determine whether
the litigant is able to pay the costs of commencing the
action. 28 U.S.C. § 1915(a). Second, the court must
determine whether the action is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
standards for reviewing dismissal for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are the same
as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). In evaluating whether a
plaintiff's complaint fails to state a claim, a court
must take the plaintiff's factual allegations as true and
draw all reasonable inferences in his favor. Id. at
612. Although a complaint need not contain
“‘detailed factual allegations, '” a
complaint that offers “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
to Walls' motion, he is unemployed and has no income or
assets. (ECF No. 2 at 1-4). As such, I conclude that he is
unable to pay the filing fee and turn to the question of
whether his complaint is frivolous, malicious, or fails to
state a claim. To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must allege: (1) that he was
deprived of a right secured by the Constitution or laws of
the United States and (2) that the person who deprived him of
that right acted under color of state law. Gomez v.
Toledo, 446 U.S. 635, 640 (1980). Because Walls is
representing himself, I construe his complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106
alleges that he was attacked by an unnamed inmate in the
Milwaukee County Jail while he was recovering from surgery.
On August 22, 2019 at approximately 7:30 a.m., Walls states
that the inmate grabbed him by his neck and attempted to
strangle him. The inmate then pulled Walls into his cell and
resumed his attempts to strangle him. At that time, Walls
alleges that Correctional Officer Lee came in and deployed
states he asked to press charges against the inmate but that
his request was denied. He alleges he was told he could not
press charges because the inmate who attacked him “has
a sort of mental disorders [sic], ” and he
should not have been “let out”. (ECF No. 1 at 3).
He states that he was told if he pressed charges, Officer Lee
would get in trouble. After he was unable to press charges,
Walls asserts that he filed grievances, and as a result
“was subjected to cruel and unusual treatment and
Punishment by certain staff, ” specifically naming
Correctional Officer Montoya. (Id.).
only defendant Walls names is the Milwaukee County Jail.
Section 1983 “creates a cause of action based on
personal liability and predicated upon fault; thus, liability
does not attach unless the individual defendant caused or
participated in a constitutional violation.”
Hildebrant v. Ill. Dep't of Nat. Res., 347 F.3d
1014, 1039 (7th Cir. 2003) (quoting Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996)). Because § 1983 makes
public employees liable “for their own misdeeds but not
for anyone else's, ” Burks v. Raemisch,
555 F.3d 592, 596 (7th Cir.2009), a plaintiff must
specifically allege what each individual defendant did (or
did not do) to violate his constitutional rights.
1983 also allows a plaintiff to sue a “person”
who, acting under color of law, violates his constitutional
rights. The Milwaukee County Jail is not a person. There are
some circumstances where a municipality can be sued under
§ 1983. See Monell v. Dept. of Social Servs. of City
of New York, 436 U.S. 658 (1978). For the Milwaukee
County Jail, Federal Rule of Civil Procedure 17(b) states
that defendants in a federal lawsuit must have the legal
capacity to be sued. State law determines an entity's
capacity to be sued. Webb v. Franklin County Jail,
No. 160cv01284, 2017 WL 914736 at *2 (S.D. Ill. Mar. 8.
2017). Under Wisconsin law, the Milwaukee County Jail
“is not a legal entity separable from the county
government which it serves, ” and is therefore not
subject to suit under § 1983. Whiting v. Marathon
County Sherriff's Dept., 382 F.3d 700, 704 (7th Cir.
2004). As such, the Milwaukee County Jail is not the
Walls' complaint suggests there may be some individuals
who may be an appropriate party. Accordingly, if Walls wants
to purse this case, he must file an amended complaint that
specifies the individual defendants who he believes violated
his constitutional rights and details how they allegedly
violated them. When writing his amended complaint, Walls
should provide me with enough facts to answer the following
questions: 1) Who violated his constitutional rights?; 2) How
did each person violate his rights?; 3) Where did each person
violate his rights?; and 4) When did each person violate his
rights? Walls' complaint does not need to be long or
contain legal language or citations to statutes or cases, but
it does need to provide me and each defendant with notice of
what each defendant allegedly did to violate Walls'
rights. If Walls does not know the name of the defendant who
alleged violated his rights, he may identify them as
“John Doe” or “Jane Doe.” If his
amended complaint is allowed to proceed, Walls will have an
opportunity to conduct limited discovery to determine the
enclosing a copy of the complaint form and instructions.
Walls should write the word “AMENDED” in front of
the word “COMPLAINT” at the top of the first
page, and then put the case number for this
case-19-cv-1577-in the field for “Case Number.”
He must list all of the defendants in the caption of the
complaint. He must use the spaces on pages two and three to
allege the key facts that give rise to the claims he wishes
to bring, and to describe which defendants he believes
committed the violations that relate to each claim. If the
space is not enough, he may use up to five additional sheets
of paper (putting page numbers on each additional page). The
amended complaint takes the place of the prior complaint and
must be complete in itself. Walls cannot simply say,
“Look at my first complaint for further
information.” See Duda v. Bd. of Educ. of Franklin
Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th
Walls files the amended complaint by the deadline specified
below, I will evaluate it pursuant to 28 U.S.C. § 1915.
If he does not want to proceed with the case, he does not
have to take any further action. If he does not file an
amended complaint by the deadline (or explain to the court
why he is unable to do so), I will conclude that he no longer
wishes to proceed with this case, and I will dismiss the case
IT IS ORDERED that Walls' motion for leave to
proceed without prepaying the ...