Marx, Michael v. Department of Corrections

Filing 10

ORDER dismissing #1 Complaint. Amended Complaint due 6/8/2023. Signed by District Judge James D. Peterson on 5/18/2023. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MICHAEL DAVID MARX,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,

OPINION and ORDER
23-cv-222-jdp

Defendant.
Plaintiff Michael David Marx, appearing pro se, is incarcerated at Thompson
Correctional Center, located in Deerfield, Wisconsin. Marx alleges that facility staff failed to
properly treat his dental problem and threatened to retaliate against him for complaining about
the problem. Marx has made an initial partial payment of the filing fee as previously directed
by the court.
The next step is for me to screen Marx’s complaint and dismiss any portion that is
legally frivolous or malicious, fails to state a claim upon which relief may be granted, or asks
for money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915 and 1915A. In doing so, I must accept his allegations as true and construe the
complaint generously, holding it to a less stringent standard than formal pleadings drafted by
lawyers. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).
I conclude that Marx’s complaint fails to state a claim against a defendant that can be
sued in this court, but I will give him a chance to file an amended complaint fixing these
problems.

ANALYSIS
Marx alleges that in June 2022 one of his front teeth started to hurt. He asked his
dentist, Dr. Delforge, for a root canal, but Delforge refused; Delforge said that a Department
of Corrections policy stated that he did not have to perform a root canal, and he offered to pull
the tooth instead. Marx asked about paying to see an outside dentist, but he was told by
unidentified staff that it was not allowed. An unidentified male nurse told him to stop
complaining about the problem or they would send him to a prison with harsher conditions.
Marx’s allegations that staff won’t provide him with adequate medical care for his dental
problem and that they threatened to retaliate against him by transferring him to a harsher
prison could likely state claims for relief under the First and Eighth Amendments to the United
States Constitution if he named the appropriate defendants for such claims. But his complaint
does not name any defendants who may be sued.
The only defendant named in his complaint is the Department of Corrections, but the
DOC cannot be sued for constitutional violations. See Will v. Michigan Dep’t of State Police, 491
U.S. 58 (1989). Instead, Marx must include individuals in the caption of his complaint who
were “personally involved” in the alleged constitutional violation, which means that the
defendant caused or participated in the violation. See Rascon v. Hardiman, 803 F.2d 269, 273
(7th Cir. 1986). Marx discusses individuals’ actions in his complaint but he does not name
them as defendants. And in other parts of the complaint he does not explain what individual
acted to harm him.
I will dismiss Marx’s complaint but I will give him a chance to file an amended
complaint fixing these pleading problems. In drafting his amended complaint, Marx should
remember to do the following:

2



Carefully consider whether he is naming proper defendants and omit defendants
who did not personally cause or participate in a violation of his rights.



Identify all of the individuals who he wishes to sue in the caption of the
complaint.



Describe simply and concisely what actions he believes that each defendant took
that violated his rights, using separate, numbered paragraphs. He should state
his allegations as if he were telling a story to someone who knows nothing about
the events.



If he does not know the identity of particular defendants, he may label them as
John Doe No. 1, John Doe No. 2, and so on. The court has procedures by which
he may make discovery requests to identify those defendants later in the case.

If Marx fails to submit an amended complaint by the deadline set below, I will dismiss
the case and assess him a “strike” under 28 U.S.C. § 1915(g).

ORDER
IT IS ORDERED that:
1. Plaintiff Michael David Marx’s complaint is DISMISSED.
2. Plaintiff may have until June 8, 2023, to submit an amended complaint as directed
in the opinion above.
Entered May 18, 2023.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3