# 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

J OSEPH 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,

J udge

.

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 F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 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.