                           UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                           Submitted November 29, 2006*
                            Decided November 29, 2006

                                      Before

               Hon. KENNETH F. RIPPLE, Circuit Judge

               Hon. DIANE P. WOOD, Circuit Judge

               Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 05-2810

ELMO CASH,                                   Appeal from the United States District
    Plaintiff-Appellant,                     Court for the Southern District of
                                             Indiana, Indianapolis Division.
      v.
                                             No. 1:05-CV-222-LJM-WTL
MARION COUNTY JAIL,
    Defendant-Appellee.                      Larry J. McKinney,
                                             Chief Judge.

                                     ORDER

       Elmo Cash was housed for about nine months as a federal pretrial detainee
at the Marion County Jail (“MCJ”) in Indianapolis, Indiana. In February 2005,
after he was convicted and moved to a federal prison, Mr. Cash filed a lawsuit
under 42 U.S.C. § 1983 claiming that he received inadequate treatment for his
heart condition at the MCJ and that, as a result, he suffered two heart attacks
shortly after leaving the jail. He named the MCJ as the only defendant and did not


      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2810                                                                    Page 2

identify any medical personnel or jail staff who mistreated him. Because Mr. Cash
had not sued a “person,” the district court dismissed the complaint at the screening
stage, see 28 U.S.C. § 1915A(a), (b)(1), but gave him leave to amend. Mr. Cash then
filed a substantially similar complaint naming the “Marion County Sheriff’s
Department” as the sole defendant. The district court dismissed this amended
complaint, too, and explained that any further complaint should name “a person
subject to liability under § 1983.”

       In May 2005 Mr. Cash filed a second amended complaint. This time he
named as defendants the State of Indiana, Marion County Sheriff Frank Anderson,
and the “staff” of the MCJ. Mr. Cash alleges that, during the nine-month period he
was housed at the MCJ, he “did not receive any needed medical care” despite a
documented history of heart problems and high blood pressure. He says he
repeatedly told his lawyer that he needed to see a doctor, but only after several
months did he finally see a “Dr. Wood.” Mr. Cash gave the doctor his medical
records and a list of the prescription medications he was taking before arriving at
the MCJ, and yet the doctor did not prescribe any medications or provide any other
treatment. Mr. Cash alleges that he suffered severe chest pains and had difficulty
breathing while at the MCJ. After his federal sentencing in May 2004, he was
briefly housed at the federal prison in Terra Haute, Indiana, before being
hospitalized and undergoing triple bypass surgery. Mr. Cash claims that the “staff”
at the MCJ was “negligent in handling” his medical problems and, in particular,
“denied him needed medications” in violation of the Eighth Amendment of the
United States Constitution.

       Once again the district court dismissed the complaint under § 1915A(b)(1).
The court reasoned that neither the State of Indiana or the “staff” at the MCJ is a
person subject to suit under § 1983. The court added that Sheriff Anderson could
not be held liable under the doctrine of respondeat superior, but Mr. Cash does not
allege that Anderson personally directed, participated in, or interfered with his
medical care at the MCJ. The court denied Mr. Cash’s motion for reconsideration
under Federal Rule of Civil Procedure 59(e). Mr. Cash appeals.

       In his appellate brief——a copy of his Rule 59(e) motion——Mr. Cash argues
that his second amended complaint states a claim under the Eighth Amendment for
deliberate indifference to his serious medical needs based on his allegations that the
failure to dispense medication caused him to suffer pain and two heart attacks. We
review the dismissal of a complaint under § 1915A(b)(1) de novo. Marshall v.
Knight, 445 F.3d 965, 968 (7th Cir. 2006). Taking as true Mr. Cash’s allegation that
members of the medical staff at the MCJ refused to treat his heart condition, the
conduct he complains of could constitute an Eighth Amendment violation. First, he
alleges that he was injured by an objectively serious deprivation. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th
No. 05-2810                                                                     Page 3

Cir. 2002). He also alleges that those who failed to treat him did so with deliberate
indifference to his serious medical needs. See Farmer, 511 U.S. at 836; Zentmyer v.
Kendall County, Ill., 220 F.3d 805, 810-11 (7th Cir. 2000). In short, but for the fact
that it does not identify a proper defendant, the complaint would be sufficient to
state a claim.

       Nevertheless, the district court properly dismissed Mr. Cash’s lawsuit.
States and their departments are not “persons” that may be sued under § 1983.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-67 (1989); Witte v. Wis. Dep’t of
Corr., 434 F.3d 1031, 1036 (7th Cir. 2006). Nor is the “staff” of the MCJ a person
under § 1983. Moreover, for the reasons given by the district court, Mr. Cash’s suit
cannot proceed against Sheriff Anderson. Mr. Cash’s complaint and his Rule 59(e)
motion make evident that Anderson was not personally involved in Mr. Cash’s
medical care, and there is no respondeat superior liability under § 1983. Perkins v.
Lawson, 312 F.3d 872, 875 (7th Cir. 2002). The sheriff can be liable in his official
capacity only if Mr. Cash was harmed as a result of some custom or policy, see id.,
but nothing in the complaint even hints at such a policy.

        We note that Mr. Cash identifies at least one possible defendant in the body
of his second amended complaint. Mr. Cash alleges that he saw Dr. Wood and
showed her medical records documenting his heart disease, but she took no action
to treat his condition. Dr. Wood is not a named defendant, however, and we
recently emphasized that even a pro se prisoner’s complaint must comply with Fed.
R. Civ. P. 10(a) and include the names of all parties in the in title of the action.
Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005). One cannot become a
party without being named and served, and without becoming a party, one cannot
defend. See id. at 552. And now the opportunity for Mr. Cash to amend his
complaint yet again would do him no good. The two-year statute of limitations for a
§ 1983 claim arising in Indiana has run, see Brademas v. Ind. Hous. Fin. Auth., 354
F.3d 681, 685 (7th Cir. 2004), and “[w]e have consistently held that Rule 15(c)(3)
does not provide for relation back under circumstances . . . in which the plaintiff
fails to identify the proper party,” King v. One Unknown Fed. Corr’l. Officer, 201
F.3d 910, 914 (7th Cir. 2000). Mr. Cash had three opportunities to name the
defendants who deprived him of medical care, and he did not do so. We therefore
AFFIRM the judgment of the district court.
