Harbaugh v. Hertrampf et al

Filing 5

SCREENING ORDER DISMISSING CASE signed by Magistrate Judge William E Duffin on 11/22/2024. Case is DISMISSED WITHOUT PREJUDICE because the Court does not have diversity jurisdiction. Judgment to be entered. (cc: all counsel and mailed to pro se Plaintiff)(lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TED JOSEPH HARBAUGH,
Plaintiff,
v.

Case No. 24-CV-850

SERGEANT ROBI J HERTRAMPF,
LIEUTENANT MR. TRUM, and
WES RAY,
Defendants.
ORDER
Plaintiff Ted Joseph Harbaugh, who is currently incarcerated and
representing himself, filed a complaint under 42 U.S.C. § 1983, alleging the
defendants violated his constitutional rights. (ECF No. 1.) This order screens his
complaint.
The court has jurisdiction to screen the complaint in light of Harbaugh’s
consent to the full jurisdiction of a magistrate judge and the Wisconsin Department
of Justice’s limited consent to the exercise of magistrate judge jurisdiction as set
forth in the Memorandum of Understanding between the Wisconsin Department of
Justice and this court.

SCREENING OF THE COMPLAINT
Federal Screening Standard
Under the PLRA the court must screen complaints brought by prisoners
seeking relief from a governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint if the prisoner
raises 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).
In determining whether the complaint states a claim, the court applies the
same standard that applies to dismissals under Federal Rule of Civil Procedure
12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v.
Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a
claim a complaint must include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must
contain enough facts, accepted as true, to “state a claim for relief 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 for relief under 42 U.S.C. § 1983 a plaintiff must allege that
someone deprived him of a right secured by the Constitution or the laws of the
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United States, and that whoever deprived him of this right was acting under color
of state law. D.S. v. E. Morris Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015)
(citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)).
The court construes pro se complaints liberally and holds them to a less stringent
standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
Harbaugh’s Allegations
Harbaugh alleges that on March 21, 2024, while he was incarcerated at
Oakhill Correctional Institution and working as an inmate worker at the Oregon
State Farm, defendant supervising officer Robi J. Hertrampf caused his leg to be
crushed. (ECF No. 1 at 2-3.) Specifically, he alleges that a cow was stuck in the “Jbunk feeder.” (Id. at 2.) After attempting to free the cow on his own, Harbaugh told
Hertrampf that the cow was stuck. (Id.) Hertrampf decided to use a skid loader to
attempt to dislodge the cow. (Id.) After one failed attempted, Hertrampf instructed
Harbaugh to enter the J-bunk feeder and hold the cow’s head while Hertrampf
pushed the J-bunk feeder with the skid loader. (Id.) During the operation,
Harbaugh became “wedged between the ‘J-bunk’ and an area of concrete block
immediately next to the ‘J-bunk’. Mr. Harbaugh’s leg, foot, and ankle were crushed
as a result of the negligent orders from Mr. Hertrampf.” (Id. at 2-3.)
Upon learning that Harbaugh was stuck, Hertrampf immediately began
pushing the “J-bunk” to dislodge Harbaugh. (ECF No. 1 at 3.) Once Harbaugh was
freed, it was clear that he could not place weight on his right leg. (Id.) Hertrampf
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“then rendered aid to Mr. Harbaugh, helping him to the main office located on the
farm . . .and contacted security staff at Oakhill Correctional Institution.” (Id.)
Harbaugh was taken immediately to the UW Hospital, where an x-ray showed that
he had multiple broken bones. (Id.) Harbaugh had surgery wherein two screws were
placed into his bone to repair the break. (Id.) Harbaugh seeks $500,000 in damages
(Id. at 4.)
Analysis
Harbaugh does not include any allegations involving Lieutenant Trum and
Wes Ray. As such, they are dismissed as defendants in this case.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that
someone deprived him of a right secured by the Constitution or the laws of the
United States, and that whoever deprived him of this right was acting under the
color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir.
2015) (citing Buchanan–Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009)). At most, Harbaugh has stated a claim for the state-law tort of negligence.
Under Wisconsin law, a claim for negligence requires the plaintiff to allege: (1) a
breach of (2) a duty owed (3) that results in (4) an injury or injuries, or damages.
Paul v. Skemp, 242 Wis. 2d 507, 520 (Wis. 2001). But a federal court does not have
jurisdiction to decide cases that involve only state-law claims unless a plaintiff can
demonstrate that the court has diversity jurisdiction under 28 U.S.C. §1332.
Diversity jurisdiction exists when: (1) the amount in controversy exceeds $75,000;
and (2) the parties are citizens of different states. 28 U.S.C. §1332.
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Harbaugh seeks $500,000 in damages, but he has not alleged that he and
Hertrampf are citizens of different states. In fact, his complaint alleges that he and
Hertrampf are both citizens of Wisconsin and that he believes Hertrampf was
negligent. Because the complaint does not allege a violation of a federal law or the
federal Constitution, and because the plaintiff and the defendant both live in the
same state, this federal court does not have subject-matter jurisdiction over the
plaintiff’s state-law claim against the defendant.
Although courts generally permit civil plaintiffs at least one opportunity to
amend their pleadings, the court need not do so where the amendment would be
futile. See Boyd v. Bellin, No. 20-3087, 2021 WL 479769 (7th Cir. Feb. 10, 2021).
Because Harbaugh’s complaint is thorough in its allegations of facts surrounding
this claim, the court finds that further amendment would be futile.
Thus, Harbaugh’s claim is dismissed. However, the court will dismiss the
claim without prejudice, which means that Harbaugh may file his suit in Wisconsin
state court.
CONCLUSION
NOW, THEREFORE, IT IS HEREBY ORDERED that this case is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by filing
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in this court a notice of appeal within thirty days of the entry of judgment. See Fed.
R. of App. P. 3, 4. This court may extend this deadline if a party timely requests an
extension and shows good cause or excusable neglect for not being able to meet the
thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under limited circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal
Rule of Civil Procedure 59(e) must be filed within twenty-eight days of the entry of
judgment. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2). Any
motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the judgment.
The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine what,
if any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin this 22nd day of November, 2024.
BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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