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Date: 04-02-2018

Case Style:

Jill Oits v. Kayla J. Demarasse, et al.

Eastern District of Wisconsin Federal Courthouse - Milwaukee, Wisconsin

Case Number: 16-1875

Judge: Ripple

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Not Available

Defendant's Attorney: Not Available

Description: Jill Otis brought this action pro se under
42 U.S.C. § 1983, alleging that Kayla Demarasse, a Waterford,
Wisconsin police officer, ignored her obvious need for
medical care after arresting her on suspicion of driving while
intoxicated. The district court dismissed her complaint.
Ms. Otis, now represented by counsel, appeals the dismissal.
She contends that her complaint states a claim for relief and
2 No. 16-1875
that the district court erred when it concluded that she had
pleaded herself out of court.
Ms. Otis’s submissions in the district court fairly allege
that Officer Demarasse knew about her need for medical attention
and responded in an objectively unreasonable manner.
The district court erred in concluding that Ms. Otis had
pleaded herself out of court by attaching the police report,
which contained a version of the facts different from those in
the complaint itself. Accordingly, we vacate the judgment as
to Officer Demarasse and remand for further proceedings
against the officer.
I
BACKGROUND
The initial version of Ms. Otis’s complaint is brief. It alleges
that on September 17, 2014, the Waterford police
stopped her on suspicion of driving while intoxicated, lied
about the stop in written reports, and treated her in a manner
“unjustified” by her “health and civil rights.”1 Ms. Otis
named as defendants the “Waterford Police Dept.” and “Racine
County Human Services.”2 The district court screened
the complaint and dismissed it on the ground that it failed to
state a claim.3 The court reasoned that the complaint lacked
factual detail about the traffic stop, including the identity of
1 R.1 at 2.
2 Id. at 1. Officer Demarasse’s name was included on a line labeled “Employer’s
name and address, if known.” Id. at 2.
3 See 28 U.S.C. § 1915(e)(2); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999).
No. 16-1875 3
the arresting officer.4 Moreover, the court believed that the
Waterford Police Department was not “a suable entity” and
that Ms. Otis’s complaint did not allege a viable claim against
the Racine County Department of Human Services.5 The court
gave Ms. Otis thirty days to amend her complaint to cure
these perceived defects.
Ms. Otis’s amended complaint added Officer Demarasse
as a defendant. It repeated her allegation that the written police
reports include false statements, and she recounted the
events surrounding her arrest. Officer Demarasse stopped
her at 1:20 a.m., she recalled, while she was driving with her
son, then eleven, to her mother’s house in Illinois. Officer Demarasse
noticed the boy in the back seat, asked Ms. Otis
where she was going, and then ordered her out of the car.
Ms. Otis alerted the officer that she was “very sick and bleeding”
heavily and asked to be taken to a hospital.6 Officer Demarasse
refused and proceeded to administer a field sobriety
test, which, Ms. Otis alleges, she had difficulty completing because
blood was “running down” her clothes and legs.7
Ms. Otis felt she was “about to pass out” and, for the second
time, asked to be taken to a hospital.8 Once again, Officer Demarasse
refused. Instead, she arrested Ms. Otis, cuffed her
4 The court apparently did not notice that Ms. Otis’s complaint had identified
Officer Demarasse. See supra note 2.
5 R.4 at 2.
6 R.5 at 6.
7 Id.
8 Id. at 7.
4 No. 16-1875
hands, and drove her to the police station. By then Officer Demarasse
had been joined by a second police officer, who took
the boy to a Department of Human Services caseworker.
At the police station, the amended complaint continues,
Ms. Otis was subjected to additional testing to determine
whether she was under the influence of drugs. A “drug recognition
expert” examined Ms. Otis’s eyes, nose, and mouth,
while a medical technician also drew a blood sample.9 Officer
Demarasse then drove Ms. Otis to the Racine County jail,
where she was booked and held for another twelve hours. At
no time during this encounter, according to the amended
complaint, was Ms. Otis taken to a hospital. Her blood sample
was negative for alcohol and controlled substances. Authorities
eventually dropped the charge of operating a motor vehicle
while intoxicated.
The district court also screened this amended complaint.
This time the court authorized Ms. Otis to proceed against Officer
Demarasse on a claim that the officer had denied her due
process by deliberately ignoring a serious medical need. The
right to due process, the court reasoned, protects “arrested
persons and pretrial detainees” from deliberate indifference
to serious medical needs.10 The court acknowledged its obligation
at the pleading stage to credit Ms. Otis’s allegation that
she was not taken to a hospital after her arrest, but it encouraged
Officer Demarasse to move for summary judgment if
she could produce contrary evidence on this question. The
court also dismissed as defendants the police department and
the Department of Human Services. The court reasoned that
9 Id. at 8.
10 R.7 at 5 (quoting Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001)).
No. 16-1875 5
the correct defendants would be the city and county, and neither
was named in Ms. Otis’s submissions.
At that point the litigation should have proceeded, but
Ms. Otis inexplicably sent the district court another supplement
to her complaint plus more than a hundred pages of attachments,
mostly police reports and medical records. In a
brief, handwritten transmittal letter, she explained her wish
“to submit[] the paperwork to add the City and County” as
defendants “because they play a great part in this case.”11 Her
submission is titled as a “Second Amended” complaint, and
that document identifies the defendants as “Waterford City
and County.”12 Officer Demarasse’s name is omitted.
One of the attachments is Officer Demarasse’s police report,
recounting that she stopped Ms. Otis on a rural highway
in Racine County after watching her car veer off the pavement
while traveling 25 miles per hour in a 55-mile-per-hour zone.
By Officer Demarasse’s account, Ms. Otis acted erratically
during the encounter and her pupils were constricted. Although
the officer did not smell alcohol or any controlled substance,
she asked Ms. Otis to perform a field sobriety test.
When Ms. Otis climbed out of her car, Officer Demarasse did
notice blood on her shirt near her buttocks, prompting the officer
to ask about the blood. According to the officer’s report,
Ms. Otis attributed the blood to having her period. Officer
Demarasse then asked, her report continues, why
Ms. Otis was not wearing a pad or tampon, and Ms. Otis
11 R.9-1 at 1.
12 R.9 at 1.
6 No. 16-1875
simply replied, “Because.”13 Ms. Otis then began the field sobriety
test but refused to complete it, citing a back injury. Suspecting
that Ms. Otis had taken illegal drugs or prescription
medication, Officer Demarasse arrested her and put her in the
back seat of a squad car (after placing two gauze pads on the
seat).
Officer Demarasse’s report contradicts Ms. Otis’s allegations
concerning medical treatment. First, it recounts driving
Ms. Otis to Burlington Memorial Hospital “for OWI processing.”
14 At the hospital, the report says, Officer Demarasse
issued Ms. Otis a citation for driving while intoxicated and
obtained her agreement to submit to a blood test. A medical
technician drew two vials of blood, and another officer conducted
“drug recognition exams.”15 During this time, according
to the police report, Ms. Otis was given a chance to clean
herself and exchange her blood-soaked pants for scrub pants
supplied by the hospital. Because Ms. Otis had no one available
to give her a ride home, Officer Demarasse transported
her to the county jail at 5:00 a.m. for a “12-hour OWI hold.”16
Ms. Otis later requested from Burlington Memorial Hospital
any record of her being treated the day of her arrest, and
the hospital did not have any relevant record. Records from a
13 R.9-2 at 13.
14 Id. at 14.
15 The medical technician completed a State of Wisconsin “blood/urine
analysis” form, writing that blood for an alcohol and drug panel was collected
at 3:00 a.m. The form does not identify where—the police station or
a hospital—Ms. Otis’s blood was drawn. Id. at 21.
16 Id. at 15.
No. 16-1875 7
different hospital establish that, two days after her arrest,
Ms. Otis was admitted and assigned to intensive care. She
was diagnosed with “[a]cute blood loss anemia secondary to
dysfunctional uterine bleeding,” which required giving her a
blood transfusion.17
After receiving Ms. Otis’s unsolicited third submission,
the district court dismissed her action and struck the filing.
Instead of acknowledging this submission as a supplement to
what Ms. Otis had filed previously, the court characterized it
as a standalone “second amended complaint” that superseded
the initial version as amended.18 The court then reasoned that,
because Officer Demarasse is not explicitly named as a defendant
in the caption, Ms. Otis had dropped the officer as a
defendant. The court further concluded that Ms. Otis’s complaint
did not state a claim against Waterford or Racine
County. The court noted that a municipality may be liable under
§ 1983 if a constitutional violation arises from an official
policy or custom. See Monell v. Dep't of Soc. Servs., 436 U.S. 658,
694 (1978). Yet, the district court explained, Ms. Otis did not
attribute her arrest or its aftermath—including the temporary
placement of her son with the Department of Human Services—
to a city or county policy or custom. In any event, the
court asserted, Ms. Otis’s allegations are “no longer plausible”
in light of the documents attached to her latest submission.
19 Ms. Otis did not deny any of the information in the attachments,
the court said, and those attachments confirm that
17 Id. at 70.
18 R.10 at 1.
19 Id. at 2.
8 No. 16-1875
she “had her blood drawn, was examined by hospital staff,
and was given clean scrubs to wear.”20 For this reason, the
court concluded, Ms. Otis cannot plausibly allege that she
was not taken to the hospital after her arrest or that her civil
rights were violated during the episode.
II
DISCUSSION
Ms. Otis now challenges only the dismissal of her claim
against Officer Demarasse. She does not contest the dismissal
of her Monell claims against either Waterford or Racine
County. We review de novo a dismissal at screening under
28 U.S.C. § 1915(e)(2)(B), and we accept allegations in a complaint
as true, “viewing them in the light most favorable to
the plaintiff.” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1027 (7th Cir. 2013) (internal quotation marks omitted).
A.
Before addressing the merits, we must first determine
whether this appeal, which only raises challenges to the claim
against Officer Demarasse, is properly before us. Officer Demarasse
contends that the district court correctly determined
that Ms. Otis’s third submission, which contained no allegations
against Officer Demarasse, superseded Ms. Otis’s second
submission, effectively waiving any claims against the officer.
In support of this contention, Officer Demarasse notes
that “the District Court’s local rules do not allow parties to
20 Id. at 3.
No. 16-1875 9
supplement complaints and, even if she could have supplemented
her complaint under the local rules, she failed to do
so effectively where she did not specifically and clearly adopt
her first amended complaint by reference.”21 We cannot accept
this view.
The Supreme Court has cautioned that any “document
filed pro se is to be liberally construed.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks omitted). We
therefore have long recognized that pro se litigants must be
afforded “leniency … on procedural matters.” Lovelace v. Dall,
820 F.2d 223, 228 (7th Cir. 1987).
Here, Ms. Otis filed an amended complaint on March 15,
2016, naming among others Kayla J. Demarasse as a defendant.
22 The district court, in an order dated March 24, 2016, then
held “that the plaintiff has stated a Due Process claim against
defendant Demarasse,” further noting that the “City and
County are … proper parties but neither are named in the
amended complaint.”23 On April 4, 2016, Ms. Otis filed a second
amended complaint, naming “Waterford City and
County” as defendants, but omitting Demarasse.24 Appended
to that complaint was a letter indicating Ms. Otis’s desire “to
add the City and County because they play a great part in this
case.”25 Ms. Otis’s clear intention, prompted by statements in
a prior order of the district court, was to amend the complaint
21 Appellee’s Br. 10.
22 R.5 at 1.
23 R.7 at 6.
24 R.9 at 1.
25 R.9-1 (emphasis added).
10 No. 16-1875
to include additional parties. In light of the Supreme Court’s
direction to construe liberally pro se filings, Ms. Otis’s submission
should not have been characterized as a superseding
complaint. It should have been accepted for what it was—a
pro se litigant’s attempt to add parties and incorporate the
first amended complaint’s allegations by implicit reference.
B.
We next address whether the complaint, as amended,
states a claim upon which relief could be granted. Ms. Otis
contends that her complaint as initially amended states a
claim arising under the Due Process Clause of the Fourteenth
Amendment, because she asserts that Officer Demarasse was
deliberately indifferent to an objectively serious medical
need.26 Ms. Otis points to her allegations that Officer Demarasse
knew about but failed to provide medical attention
for her profuse bleeding, which presented a serious medical
need. Similar allegations from other pro se litigants, she maintains,
have been deemed by this court sufficient to state a
claim for deliberate indifference. See, e.g., Perez v. Fenoglio,
792 F.3d 768, 780 (7th Cir. 2015) (concluding that pro se litigant
stated claim for deliberate indifference against prison
nurse who knew of severe injury but failed to provide medical
treatment or seek help from others).
26 See Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015) (recognizing that,
although the right to due process, not the Eighth Amendment, governs a
claim that pretrial detainee was denied medical care, the same deliberate
indifference standard applicable to convicted prisoners also applies to
pretrial detainees).
No. 16-1875 11
The parties and the district court assumed that Ms. Otis’s
claim is governed by the Fourteenth Amendment. The district
court viewed Ms. Otis’s claim through the lens of Chapman v.
Keltner, 241 F.3d 842 (7th Cir. 2001). In that decision, we relied
on the right to due process and its “deliberate indifference”
standard in analyzing the claims of a plaintiff who was arrested
on a warrant. Id. at 844–45. We have said, however, that
the deliberate indifference standard applies only to persons
who have received a judicial determination of probable cause,
not to persons arrested without a warrant and waiting to be
taken to a judge. See Ortiz v. City of Chicago, 656 F.3d 523, 530
(7th Cir. 2011); Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir.
2007); Lopez v. City of Chicago, 464 F.3d 711, 718–19 (7th Cir.
2006).27 Ms. Otis was arrested without a warrant, and she had
not appeared before a judicial officer for a determination of
probable cause for that arrest. Under our cases, therefore, her
claim is controlled not by the Fourteenth Amendment but the
Fourth. See Hill v. Murphy, 785 F.3d 242, 244 (7th Cir. 2015);
Currie v. Chhabra, 728 F.3d 626, 629–30 (7th Cir. 2013); Lopez,
464 F.3d at 719.28
27 The parties have not argued that our pre/post-legal-process distinction
to determine the applicability of the Fourth or Fourteenth Amendment is
no longer viable after Manuel v. City of Joliet, 137 S. Ct. 911, 917–19 (2017).
Therefore, we pretermit any reliance on that case to justify predicating our
analysis on the Fourth Amendment. In any event, on the facts alleged here,
it is clear that the lack of attention to Ms. Otis’s medical needs, if established
at trial, would be violative of the more stringent Fourteenth
Amendment standards.
28 Indeed, in this case, the alleged actions of Officer Demarasse might be
characterized as part and parcel of the initial seizure. According to the allegations,
the officer seized Ms. Otis in a manner compatible with a seizure
12 No. 16-1875
Under the Fourth Amendment, Ms. Otis must show only
that Officer Demarasse’s conduct was “objectively unreasonable
under the circumstances.” Williams, 509 F.3d at 403 (quoting
Lopez, 464 F.3d at 720); see also Ortiz, 656 F.3d at 530.
Ms. Otis’s complaint as initially amended sufficiently alleges
that Officer Demarasse acted unreasonably in denying her
medical care for her profuse uterine bleeding. Officer Demarasse
was aware of the bleeding, Ms. Otis asserts, because
she repeatedly told the officer that she was bleeding and
needed to be taken to a hospital. Indeed, Officer Demarasse’s
police report establishes that she was aware of the bleeding—
she noted in her report that Ms. Otis had “a large fresh blood
stain” at the bottom of her shirt.29 And Ms. Otis’s medical condition,
as described to the officer, unquestionably was objectively
serious: Ms. Otis told the officer that she was “bleeding
bad[ly]” and felt “very sick,” to the point that she feared she
might pass out.30 Even without hearing these statements,
moreover, Officer Demarasse would have known from the
amount of blood visible on Ms. Otis’s clothes and legs that
immediate medical attention was needed.
Officer Demarasse did not seek medical care, however, for
Ms. Otis’s severe bleeding. As Ms. Otis recounts, she twice
asked the officer to take her to the hospital, but each time Officer
Demarasse refused. Instead, the officer took her to jail,
where she stayed for another twelve hours without medical
attention. These allegations are troubling, especially because
for serious drug or alcohol abuse without any regard for the obvious evidence
that her condition and actions revealed a serious medical condition.
29 R.9-2 at 13.
30 R.5 at 6.
No. 16-1875 13
Ms. Otis could not independently seek medical care while in
custody. At this pleading stage, Ms. Otis alleges enough to
piece together a plausible story that Officer Demarasse acted
unreasonably in denying her medical care for an obviously
serious medical condition.
C.
Finally, we turn to the district court’s conclusion that
Ms. Otis had pleaded herself out of court by attaching various
documents to her final amended complaint. Among the attached
documents was Officer Demarasse’s police report,
which contradicts the allegations of the complaint in material
respects. The court concluded, after reviewing these documents,
that Ms. Otis’s allegations were “no longer plausible
and will be dismissed as frivolous.”31 The court specifically
noted that “[n]one of the information in the exhibits attached
to Otis’ amended pleading are denied by her” and that, in addition
to contradicting some of the allegations, they also “provide[
d] a more complete context in which to assess her allegations.”
32
“A plaintiff does not, simply by attaching documents to
his complaint, make them a part of the complaint and therefore
a basis for finding that he has pleaded himself out of
court.” Powers v. Snyder, 484 F.3d 929, 932 (7th Cir. 2007); see
also Carroll v. Yates, 362 F.3d 984, 986 (7th Cir. 2004) (rejecting
argument that prisoner, simply by appending to complaint a
decision of an administrative board, adopted board’s factual
31 R.10 at 2.
32 Id. at 3.
14 No. 16-1875
assertions); N. Ind. Gun & Outdoor Shows, Inc. v. City of South
Bend, 163 F.3d 449, 455 (7th Cir. 1998) (noting that “[w]hen the
exhibit[ in question] is not the subject of the claim,” the rules
do “not require a plaintiff to adopt every word within the exhibits
as true for purposes of pleading simply because the
documents were attached”).33 Indeed, in assessing the propriety
of dismissal of a complaint, our cases urge particular caution
when a plaintiff attaches a document authored by a defendant:
“Rather than accepting [as true] every word in a unilateral
writing by a defendant and attached by a plaintiff to a
complaint … , it is necessary to consider why a plaintiff attached
the documents, who authored the documents, and the
33 Certain “written instrument[s]” become a part of the complaint by rule.
See Fed. R. Civ. P. 10(c). As we recently have explained,
The traditional understanding of an instrument is a document
that defines a party’s rights, obligations, entitlements,
or liabilities—a contract, for example. BLACK’S
LAW DICTIONARY 869 (9th ed. 2009). Most of the documents
that Williamson has appended to her complaint do
not fit within that narrow understanding … of a written
instrument. But we have taken a broader view of documents
that may be considered on a motion to dismiss, noting
that a court may consider, in addition to the allegations
set forth in the complaint itself, documents that are
attached to the complaint, documents that are central to
the complaint and are referred to in it, and information
that is properly subject to judicial notice.
Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). Although we considered
the documents attached to the complaint in Williamson, we noted
that it was appropriate to do so where the plaintiff had relied on the documents
in substance and made no allegation that they were fraudulent or
false in any way. Id.
No. 16-1875 15
reliability of the documents.” Id. A district court should determine
whether considering the particular documents in substance
is appropriate. See, e.g., Williamson v. Curran, 714 F.3d
432, 436 (7th Cir. 2013) (“What makes it appropriate for us to
consider the documents that Williamson has attached to her
complaint is that she has not only cited them in the body of
her complaint, but she has, to some degree, relied on their
contents as support for her claims.”).
Here the district court did not employ the requisite caution.
Instead, it simply assumed that, because “the information
in the exhibits” was not “denied by her,” Ms. Otis had
adopted everything written by Officer Demarasse in her police
report.34 Plainly that is not so; when Ms. Otis amended
her complaint initially, she five times challenged Officer Demarasse’s
report as “false” or “lies.”35 Cf. Williamson, 714 F.3d
at 436 (explaining that content of investigative reports attached
to complaint could be treated as part of plaintiff’s factual
allegations absent “any indication” from plaintiff that
documents were “falsified in some way”). The district court
therefore erred when it credited the content of the police report
over Ms. Otis’s denial that her blood was drawn at a hospital
and over Burlington Memorial’s records reflecting that
she was not treated on the night in question.
More fundamentally, Ms. Otis’s claim does not depend on
whether her blood was drawn at a hospital or at the police
station. Wherever Ms. Otis was taken, she was not taken for
the purpose of receiving medical care, and she did not receive
medical care. At most, during the nearly four hours that
34 R.10 at 3.
35 R.5 at 7–9, 11.
16 No. 16-1875
Ms. Otis was in Officer Demarasse’s custody, the only step
taken by the officer in response to seeing the plaintiff bleeding
heavily was to find her a pair of scrub pants to wear. We do
not understand how it would help the officer’s case to prove
that she did take Ms. Otis to a hospital yet still refused to notify
hospital staff that the woman she had brought in handcuffs
was bleeding heavily and saying she was close to passing
out.

Outcome: For these reasons, we vacate the dismissal of Ms. Otis’s
claim against Officer Demarasse, and we remand the case for
further proceedings consistent with this opinion. In all other
respects, the judgment of the district court is affirmed.
AFFIRMED

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