Joseph Reinwand v. Frank Blackburn

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 22, 2016 *
Decided September 23, 2016
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16‐1525
JOSEPH REINWAND,
Plaintiff‐Appellant,
v.
FRANK BLACKBURN,
Defendant‐Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 15‐cv‐799‐bbc
Barbara B. Crabb,
Judge.
O R D E R
Joseph Reinwand, a Wisconsin prisoner, appeals the dismissal of his complaint
alleging that Dr. Frank Blackburn, a reviewing physician for a disability benefit fund,
committed medical malpractice by opining that Reinwand is not totally disabled. The
district court dismissed the complaint for failure to state a claim. We modify the
judgment to reflect a dismissal for lack of jurisdiction rather than on the merits, and as
modified we affirm.
* We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 16‐1525 Page 2
Reinwand had received monthly disability payments through an employee
benefit plan before his incarceration, but those benefits were terminated after
Dr. Blackburn opined that Reinwand was not disabled based on a review of his medical
forms. Reinwand sued the plan itself, its administrator, and Dr. Blackburn, alleging that
they had improperly terminated his disability benefits. The district court dismissed
Dr. Blackburn on the ground that benefit claims under the Employee Retirement Income
Security Act may be brought only against the plan itself and its administrator. See
29 U.S.C. § 1132(d)(2). However, the court allowed Reinwand to proceed against the
plan and its administrator.
Reinwand then sued Dr. Blackburn a second time alleging that he committed
medical malpractice by giving a “medical diagnosis” without performing a physical
examination. The district court screened the complaint, see 28 U.S.C. § 1915A, and
dismissed it for failure to state a claim. The court construed Reinwand’s allegation as a
renewed attempt to bring a benefits claim under ERISA and repeated its conclusion from
Reinwand’s first suit that Dr. Blackburn is not a proper defendant for such a claim. The
court then explained that Reinwand did not state a claim for malpractice because
Dr. Blackburn never treated him and owed him no duty of care. And to the extent
Reinwand sought to allege a constitutional violation, the court added, Dr. Blackburn is
not a state actor and may not be held liable under 42 U.S.C. § 1983.
On appeal Reinwand clarifies that he intended to bring only a medical‐
malpractice claim and tells us that the district court mischaracterized his complaint
because “a claim of malpractice is not the same as a claim under ERISA.” Although he
now attempts to portray that state‐law tort as a constitutional violation by asserting that
Dr. Blackburn’s “malpractice” would allow a jury to infer deliberate indifference, this is
insufficient to invoke federal jurisdiction. Moreover, he cannot add new claims on
appeal. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819–20 (7th Cir. 2006).
Medical malpractice is not a constitutional violation; “the Eighth Amendment does not
codify common law torts.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). And
any attempt to amend would be futile because private actors like Dr. Blackburn not
acting under color of state law are not liable for constitutional violations under § 1983.
See West v. Atkins, 487 U.S. 42, 48–49 (1988); Babchuk v. Ind. Univ. Health, Inc., 809 F.3d 966,
968–71 (7th Cir. 2016).
We MODIFY the judgment to reflect a dismissal for lack of jurisdiction rather
than on the merits, and as modified the judgment is AFFIRMED.

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