Grovogel v. Doe et al

Filing 20

ORDER signed by Judge Pamela Pepper on 5/9/2018. US Marshal to serve copy of second amended complaint and this order on Racine County Sheriff. Sheriff to notify the court when complaint and order received. Once documents received by Sheriff, plainti ff may submit questions to or ask for documents from the Sheriff relating only to identifying Jane Doe defendants. Once he has learned the names of the nurse defendants, plaintiff to ask the court to substitute the actual names for Doe placeholders. Defendant Racine County Jail DISMISSED. (cc: all counsel, via mail to Ronald Grovogel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RONALD GROVOGEL, JR.,
Plaintiff,
v.

Case No. 16-cv-1274-pp

RACINE COUNTY JAIL,
JANE DOE, RN, and
JANE DOE, LPN,
Defendants.
______________________________________________________________________________
ORDER SCREENING SECOND AMENDED COMPLAINT (DKT. NO. 19)
______________________________________________________________________________
Plaintiff Robert D. Grovogel is representing himself, and was a prisoner
when he filed his complaint under 42 U.S.C. §1983, challenging various
aspects of his confinement at the Racine County Jail. Dkt. No. 1. On March 8,
2018, the court screened the amended complaint under 28 U.S.C. §1915A, and
told the plaintiff that if he wanted to proceed, he needed to file a second
amended complaint limited to his claim that the jail failed to treat his shoulder
injury. Dkt. No. 18 at 4. On April 6, 2018, the court received the plaintiff’s
second amended complaint, which the court now has reviewed under 28 U.S.C.
§1915A.
I.

Screening the Plaintiff’s Second Amended Complaint
A.

Federal Screening Standard

The law requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or employee of a
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governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint
if the plaintiff raises claims that are legally “frivolous, malicious,” or 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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that: 1) he
was deprived of a right secured by the Constitution or laws of the United
States; and 2) the defendant was acting under color of state law. BuchananMoore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se plaintiff’s
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
B.

The Plaintiff’s Allegations

The plaintiff has sued the Racine County Jail and two nurses at the jail
whose names he does not know: RN Jane Doe and LPN Jane Doe. As the court

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instructed him, the plaintiff has limited his second amended complaint to his
allegations related to the treatment of his shoulder injury.
The plaintiff was in the Racine County Jail for just shy of a year, from
June 20, 2015 through June 18, 2016. Dkt. No. 19 at 2. The plaintiff alleges
that on May 16, 2016, he fell at the jail, felt a “pop,” and could not move his
shoulder as he could before the fall. Id. at 2-3. He wrote a “request” to the
“jailer” for a “nurses request,” and two days later, nurse staff saw the plaintiff.
Id. at 3. They took the plaintiff’s “vitals” and told him that nothing was wrong.
Id.
The plaintiff subsequently complained that he could not bear weight on
his left shoulder. Id. The nurse saw him and said that all he needed was “an
anti-inflammatory/mild steroid.” Id. The plaintiff took this medication for two
days, but his shoulder pain worsened, “not because of the meds., but because
the diagnosis was incorrect.” Id. The plaintiff states that, “[k]nowing that I was
not going to be given correct treatment, I just lived with the pain.” Id.
For relief, the plaintiff seeks compensatory damages. Id. at 4.
C.

The Court’s Analysis

Before moving to the plaintiff’s substantive claims, the court notes that
the plaintiff cannot sue the Racine County Jail under §1983. Section 1983
allows a plaintiff to sue a “person” who, acting under color of law, violates his
constitutional rights. The Racine County Jail is not a person—it is not an
individual subject to suit under §1983. It is true that under some
circumstances, a municipality—which is not a person—may be sued under
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§1983. See Monell v. Dep’t of Social Serv’s of City of New York, 436 U.S. 658
(1978). But Federal Rule of Civil Procedure 17(b) says that a defendant in a
federal lawsuit must have the legal capacity to be sued. State law determines
whether an entity has that capacity. Webb v. Franklin Cty. Jail, Case No. 16cv-1284-NJR, 2017 WL 914736 at *2 (S.D. Ill. Mar. 8, 2017). In Wisconsin, the
jail is an arm of the sheriff’s department. Under Wisconsin law, the sheriff’s
department is an arm of the County. See Abraham v. Piechowski, 13 F.
Supp.2d 870, 877-79 (E.D. Wis. 1998). This means that neither the jail nor the
sheriff’s department are “legal entit[ies] separable from the county government
which [they] serve[] . . . .” Whiting v. Marathon Cty. Sheriff’s Dep’t, 382 F.3d
700, 704 (7th Cir. 2004)). Because the Racine County Jail does not have the
capacity to be sued, the court will dismiss it as a defendant.
With regard to the plaintiff’s claims against the nurses, the plaintiff
asserts that they violated his Eighth Amendment rights. “The Eighth
Amendment safeguards the prisoner against a lack of medical care that ‘may
result in pain and suffering which no one suggests would serve any penological
purpose.’” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (quoting
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009));
see also Estelle, 429 U.S. at 103. To state an Eighth Amendment claim based
on deficient medical care, a plaintiff must allege an objectively serious medical
condition and an official’s deliberate indifference to that condition. Perez. 792
F.3d at 768 (citing Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)).

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The court finds that the plaintiff’s alleged shoulder injury is a serious
medical need. See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The
question of whether the two nurse defendants were deliberately indifferent to
that need is a closer question. Deliberate indifference occurs when a defendant
disregards a substantial risk of serious harm to a prisoner. Perez, 792 F.3d at
776-77 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994) (plaintiff must
show that officials are “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and they must also draw the
inference”). Deliberate indifference reflects a mental state somewhere between
negligence and purpose, and is properly equated with reckless disregard. Id. at
777 (citing Farmer, 511 U.S. at 836).
The “receipt of some medical care does not automatically defeat a claim
of deliberate indifference.” Id. (quoting Edwards v. Snyder, 478 F.3d 827, 831
(7th Cir. 2007)). Deliberate indifference may occur where a prison official,
having knowledge of a significant risk to inmate health or safety, administers
“blatantly inappropriate” medical treatment, acts in a manner contrary to the
recommendation of specialists, or delays a prisoner’s treatment for non-medical
reasons, thereby exacerbating his pain and suffering. Id. (internal citations
omitted).
The plaintiff has alleged that he told the nurses what happened, but that
that they just took his vitals and told him nothing was wrong. He says that he
went back to them a couple of days later, this time telling then that he could no
longer bear weight on the shoulder. They told him that he only needed the anti5

inflammatory/mild steroid. He says that the pain continued, even while he was
on the medication. At this early stage of the case, the court will allow the
plaintiff toproceed on claims against the Jane Doe nurses based on allegations
that they failed to properly treat his shoulder injury. Construed liberally, he
alleges that he did not receive appropriate treatment for his injury, which
resulted in his pain and suffering.1
The plaintiff will need to use discovery to identify the names of the Jane
Doe nurses. The court will direct the Marshal’s Service to serve the second
amended complaint on the Racine County Sheriff for the limited purpose of
allowing the plaintiff to identify the Jane Doe nurses. This means that, once
the Racine County Sheriff has been served with the complaint, the plaintiff may
conduct discovery (submit questions to or ask for documents from the sheriff)
to find out the names of the Jane Doe nurses. Once the plaintiff has identified
the two nurses, the court will direct the Marshal’s Service to serve the second
amended complaint on the nurses.
II.

Conclusion
The court ORDERS the United States Marshal to serve a copy of the

second amended complaint and this order on the Racine County Sheriff under
Federal Rule of Civil Procedure 4. Congress requires the U.S. Marshals Service
to charge for making or attempting such service. 28 U.S.C. §1921(a). Although
Congress requires the court to order service by the U.S. Marshals Service, it
Although the plaintiff does not mention it in his second amended complaint,
attachments to his first amended complaint include multiple Health Service
Requests that he submitted, requesting treatment for his shoulder injury. See
Dkt. No. 17-1 at 1-2, 23-38.
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has not made any provision for either the court or the U.S. Marshals Service to
waive these fees. The current fee for waiver-of-service packages is $8.00 per
item mailed. The full fee schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3).
The U.S. Marshals will give the plaintiff information on how to remit payment.
The court is not involved in collection of the fee.
The court ORDERS that the Racine County Sheriff shall notify the court
when he has received the second amended complaint.
The court ORDERS that once the Racine County Sheriff has received the
second amended complaint, the plaintiff may submit questions to the Sheriff,
or ask the Sheriff for documents, relating only to identifying the Jane Doe
defendants. He should tell the sheriff the dates he saw the nurses, and
describe them to the best of his ability. Once the plaintiff has learned the
names of the nurses, the plaintiff shall send the court a letter, asking the court
to substitute the actual names for the “Jane Doe” place holders.
The court ORDERS that the Racine County Jail is DISMISSED as a
defendant.
Dated in Milwaukee, Wisconsin this 9th day of May, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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