Harris v. Shorewood Police Department

Filing 15

SCREENING ORDER signed by Judge J.P. Stadtmueller on 9/28/2018. 14 Plaintiff's Second Amended Complaint shall be the OPERATIVE complaint in this action. Defendants Peter A. Nimmer, John Does 1-12, and Jane Does 1-6 are DISMISSED from this ac tion. Plaintiff is PERMITTED to proceed on a claim of inadequate medical treatment in violation of the Fourteenth Amendment against remaining Defendants. U.S. Marshals Service to SERVE a copy of the Second Amended Complaint and this Order on Defendants, who shall FILE a responsive pleading. See Order for further details. (cc: all counsel, via mail to Mark Anthony Harris at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY HARRIS,
Plaintiff,

Case No. 18-CV-803-JPS

v.
OFFICER VANCE, ADAM WARSH,
ERIC GUSE, PATRICK MURPHY,
and PATRICK WHITAKER,

ORDER

Defendants.
Plaintiff, a prisoner proceeding pro se, filed a complaint under 42
U.S.C. § 1983 alleging that his rights were violated. (Docket #1). At the
Court’s direction, see (Docket #8), Plaintiff filed a first amended complaint,
(Docket #9). Put briefly, Plaintiff alleges in the first amended complaint that
on April 23, 2017, he was in a car accident in which he suffered severe
injuries. (Docket #9 at 2). He lost consciousness, and when he awoke, he
was being arrested by police officers of the Shorewood Police Department
(“SPD”). Id. at 3. He asked for medical care, but the request was denied by
SPD officers and again by officers of other local police departments with
whom he interacted that day. Id. at 3–4.1
After reviewing the amended complaint, the Court permitted
Plaintiff to proceed on a claim of deliberate indifference to his serious
medical needs, in violation of the Fourteenth Amendment, against the
Review of publicly available state court records suggests that Plaintiff
robbed a bank with an accomplice, engaged in a high-speed car chase with police,
and ultimately crashed into a tree. See State of Wisconsin v. Mark Anthony Harris,
Milwaukee County Case No. 2017CF002043. Plaintiff pled guilty to a charge of
bank robbery in Milwaukee County Circuit Court and was sentenced to a
significant prison term. He is presently seeking post-conviction relief.
1

police officers. (Docket #10 at 2). Plaintiff named the officers not by name,
but as John Does, so the Court directed service of the first amended
complaint on Peter Nimmer (“Nimmer”), the chief of the SPD, who would
then be able to identify the officers in question. Id. at 3–4.
Prior to service, however, Plaintiff filed an amended complaint
which identifies the officer defendants by name. (Docket #14). Those
officers are Officer Vance of the Shorewood Police Department, Officer Eric
Guse of the Glendale Police Department, and Officers Adam Warsh, Patrick
Murphy, and Patrick Whitaker of the Whitefish Bay Police Department. Id.
at 2. Other than identifying the officers involved, the second amended
complaint is materially identical to the first amended complaint. As before,
Plaintiff alleges that each officer either ignored his obvious need for medical
care following the accident or ignored his express requests for care. See id.
at 3–5. Upon review of the second amended complaint against the Court’s
prior analyses and the relevant legal standards, see (Docket #8 at 1–3);
(Docket #10 at 1–2), the Court finds that Plaintiff may continue to proceed
on a claim of inadequate medical care under the Fourteenth Amendment.2
In closing, a slight clarification as to the nature of the claim needs to
be addressed. The Court originally named this claim “deliberate
indifference to Plaintiff’s serious medical needs,” as it has long been the rule
that claims of medical misconduct brought by pretrial detainees—as
Plaintiff was during the relevant events—are treated identically to those
brought by convicted prisoners. (Docket #10 at 2 & n.1); Solivan v. Dart, 897
Because Plaintiff has identified the officers in question, the Court will
dismiss Nimmer and the Doe defendants. Nimmer was joined only to facilitate
service and discovery of the officers’ identities. Further, if Plaintiff later discovers
the identities of other officers involved in the events of April 23, 2017, he may seek
leave to join them at that time. Placeholder Doe defendants are not necessary for
that purpose.
2

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F. Supp. 2d 694, 702 (N.D. Ill. 2012). However, the Seventh Circuit recently
upended that precedent, finding that pretrial detainees enjoy more robust
constitutional protections in this context. Miranda v. Cnty. of Lake, 900 F.3d
335, 351–52 (7th Cir. 2018); Bergeron-Davila v. Teeling, Case No. 17-CV-337JPS, 2018 WL 4603281, at *9–10 (E.D. Wis. Sept. 25, 2018).
After Miranda, the legal standard that governs Plaintiff’s claim
depends on his status as a convict or pretrial detainee. The Eighth
Amendment, which prohibits cruel and unusual punishment, is applicable
to medical claims brought by convicted prisoners. Estelle v. Gamble, 429 U.S.
97, 104–05 (1976). To state such a claim, a prisoner must demonstrate that
the defendant responded to his serious medical condition with deliberate
indifference. Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003).
By contrast, the Fourteenth Amendment governs medical claims
when they are brought by pretrial detainees. Miranda, 900 F.3d at 350.
Because detainees have not been convicted of any crime and therefore
cannot be punished in any sense, they are entitled to better medical
treatment when in state custody. See id.; Kingsley v. Hendrickson, 135 S. Ct.
2466, 2475 (2015). Thus, for a pretrial detainee the relevant inquiry is not
whether the defendants acted with deliberate indifference, but whether
they acted “purposefully, knowingly, or perhaps even recklessly” when
they contemplated the consequences of their actions. Miranda, 900 F.3d at
353. Whether a detainee’s claim is now to be called “reckless indifference to
serious medical needs” or something else, what matters is that the pertinent
legal standard is different than the Court described in earlier screening
orders. The parties should tailor their future submissions accordingly.

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For the reasons stated above, Plaintiff shall be permitted to proceed
on a claim of inadequate medical treatment, in violation of the Fourteenth
Amendment, against all Defendants. 28 U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s Second Amended Complaint
(Docket #14) shall be the operative complaint in this action;
IT IS FURTHER ORDERED that Defendants Peter A. Nimmer, John
Does 1–12, and Jane Does 1–6 be and the same are hereby DISMISSED
from this action;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the second amended complaint and this Order upon
Defendants pursuant to Federal Rule of Civil Procedure 4. Plaintiff is
advised that 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 has not
made any provision for these fees to be waived either by the court or by the
U.S. Marshals Service. 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 Plaintiff information on how
to remit payment. The Court is not involved in collection of the fee; and
IT IS FURTHER ORDERED that Defendants shall file a responsive
pleading to the second amended complaint.
Dated at Milwaukee, Wisconsin, this 28th day of September, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge
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