Michael Newman v. Milwaukee County Jail

• Court: District Court, E.D. Wisconsin
• Decided: December 29, 2025
• Docket: 2:25-cv-01586
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ MICHAEL NEWMAN,

Plaintiff, v. Case No. 25-cv-1586-pp

MILWAUKEE COUNTY JAIL,

Defendant. ______________________________________________________________________________

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2) AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A ______________________________________________________________________________

Plaintiff Michael Newman, who is incarcerated at the Milwaukee County Jail and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging violations of his civil rights. This decision resolves the plaintiff’s motion for leave to proceed without prepaying the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1. I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id. On October 21, 2025, the court ordered the plaintiff to pay an initial partial filing fee of $9.33. Dkt. No. 5. The court received that fee on November 3, 2025. The court will grant the plaintiff’s motion for leave to proceed without prepaying the filing fee and will require him to pay remainder of the filing fee

over time in the manner explained at the end of this order. II. Screening the Complaint A. Federal Screening Standard Under the PLRA, the court must screen complaints brought by incarcerated persons 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 incarcerated plaintiff 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 it applies when considering whether to dismiss a case 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 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by plaintiffs who are representing themselves and holds such complaints 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)). B. The Plaintiff’s Allegations The plaintiff alleges that on September 17, 2025, a piece of metal in the cornbread he was eating cut his gums. Dkt. No. 1 at 2. He states that he thought the metal was an eggshell, so he ate more and cut his gums and mouth severely. Id. At 4:47 p.m., the plaintiff allegedly told Officer J. Smoote, who called for medical and a floor sergeant to look at the plaintiff, but no one

came. Id. The plaintiff states that he noticed another piece of metal in his cornbread, and he pulled it out for the staff and camera to see. Id. He says that he returned to his cell to use tissue to stop the blood flow because medical staff or the floor sergeant did not come to help him. Id. The plaintiff alleges that at 7:07 p.m., Officer Smoote called for help again. Id. at 2-3. At 7:46 p.m., the plaintiff allegedly pressed the panic button because he was in so much pain. Id. at 3. He states that at 7:55 p.m., Sergeant Perry Wright, Lieutenant Avery, Officer Green and Officer Thomas arrived with

the nurse “but because [the plaintiff] was not having chest pain and was trying to tell him about the cuts he became unprofessional[,] very insensitive and neglectful[.]” Id. The court assumes that “he” refers to the nurse. The plaintiff allegedly opened his mouth so that “he”—presumably the nurse—could see inside without using a light, but “he” said that he did not see anything. Id. The plaintiff says that he told “him” to pull out his light, but that “he” got scared and stopped the examination which was “very wrong of him.” Id. The plaintiff states that days later his gums became infected, and the nurse gave him

antibiotics for the infection. Id. He alleges that his gums do not feel the same, that he still has pain and that he cannot taste his food. Id. The plaintiff states that he has been traumatized from having metal in his food. Id. He says that he has dreams of cutting his mouth on everything he eats, he cannot eat cornbread anymore and now he thinks there is something in all his food. Id. For relief, the plaintiff seeks compensatory damages for the pain and trauma, and for jail staff to be faster in their response time to help people who

need medical care. Id. at 4. He wants staff to be better at making sure this doesn’t happen to anyone again and to stop the “neglectful behavior.” Id. C. Analysis The only defendant the plaintiff names is the Milwaukee County Jail, but he cannot sue the Milwaukee County Jail under §1983. That civil rights statute 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—it is not an individual subject to suit under §1983. It is true that under some circumstances, a plaintiff may sue a municipality—which is not a person— under §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 Cnty. Jail, Case No. 16- cv-1284, 2017 WL 914736 at *2 (S.D. Ill. Mar. 8, 2017). In Wisconsin, the jail is

an arm of the sheriff’s department and 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 Cnty. Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir. 2004)). Because the Milwaukee County Jail does not have the capacity to be sued, the plaintiff may not proceed against the jail. And

because the plaintiff has not sued any defendant allegedly involved in the events described in his complaint, he has not stated a claim for which this federal court may grant relief. The plaintiff’s allegation that he found metal in his food one time does not implicate his constitutional rights. Understandably, he does not know who put the metal there. But a single instance of a foreign object being found in food does not amount to a constitutional violation. See Conley v. Schult, Case

No. 24-2612, 2025 WL 303795, at *2 (7th Cir. Jan. 27, 2025) (dismissal of complaint proper because no allegation of pattern of metal shavings being found in food); see also Hamm v. DeKalb C’nty, 774 F.2d 1567, 1575 (11th Cir. 1985) (“The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional violation.”). Although the plaintiff’s allegation that he found metal in his cornbread does not, by itself, implicate his constitutional rights, the court will give the plaintiff an opportunity to file an amended complaint

regarding the alleged delay he experienced in obtaining medical care for his cuts. The court is enclosing a copy of its amended complaint form. The plaintiff must use this form for his amended complaint. See Civil Local Rule 9(b). (E.D. Wis.). The plaintiff must list the case number for this case on the first page. He must list all the defendants he wants to sue in the caption of the amended complaint. He should use the spaces on pages two and three to explain 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 there is not enough space on those pages, the plaintiff may use up to five additional sheets of paper, double-spaced so that the court can read them. The amended complaint takes the place of the prior complaint and must be complete in itself; the plaintiff may not refer the court or other readers back to facts in the previous complaint. When writing his amended complaint, the plaintiff should provide the

court with enough facts to answer the following questions: 1) Who violated his constitutional rights?; 2) What did each person do to violate his rights?; 3) Where did each person violate his rights?; and 4) When did each person violate his rights? The amended complaint does not need to be long or contain legal language or citations to statutes or cases, but it does need to provide the court and each defendant with notice of what each defendant allegedly did or did not do to violate his rights. III. Conclusion The court GRANTS the plaintiff’s motion for leave to proceed without

prepaying the filing fee. Dkt. No. 2. The court CONCLUDES that the plaintiff’s complaint fails to state a claim. Dkt. No. 1. The court ORDERS that the plaintiff may file an amended complaint that complies with the instructions in this order. If the plaintiff chooses to file an amended complaint, he must do so in time for the court to receive it by January 30, 2026. If the court receives an amended complaint by the end of the day on January 30, 2026, the court will screen the amended complaint as

required by 28 U.S.C. §1915A. If the court does not receive either an amended complaint or a request for more time to file one by the January 30, 2026 deadline, the court will dismiss this case based on the plaintiff’s failure to state a claim in his original complaint and will issue him a strike as required by 28 U.S.C. §1915(g). The court ORDERS that the agency that has custody of the plaintiff must

collect from his institution trust account the $330.67 balance of the filing fee by collecting monthly payments from the plaintiff’s prison trust account in an amount equal to 20% of the preceding month’s income credited to the plaintiff’s trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). The agency must clearly identify the payments by the case name and number. If the plaintiff transfers to another county, state or federal institution, the transferring institution must forward a copy of this order, along with the

plaintiff’s remaining balance, to the receiving institution. The court will send a copy of this order to Office of the Sheriff, Fiscal Operations Rm 224, 821 W State Street, Milwaukee, WI 53233. The court ORDERS that plaintiffs who are incarcerated at Prisoner E- Filing Program institutions1 must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the court. Plaintiffs who are incarcerated at all other prison facilities must submit the original

document for each filing to the court to the following address:

1 The Prisoner E-Filing Program is mandatory for all individuals incarcerated at Green Bay Correctional Institution, Waupun Correctional Institution, Dodge Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institutio, and Oshkosh Correctional Institution. Office of the Clerk United States District Court Eastern District of Wisconsin 362 United States Courthouse 917 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will only delay the processing of the case. The court advises the plaintiff that if he fails to file documents or take other required actions by the deadlines the court sets, the court may dismiss the case based on his failure to diligently pursue it. The parties must notify the Clerk of Court of any change of address. The court advises the plaintiff that it is his responsibility to promptly notify the court if he is released from custody or transferred to a different institution. The plaintiffs failure to keep the court advised of his address may result in the court dismissing this case without further notice. Dated in Milwaukee, Wisconsin, this 29th day of December, 2025. BY THE COURT: x PAMELA PEPPER Chief United States District Judge