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Brown v. Does

United States District Court, E.D. Wisconsin

May 30, 2016

ENNIS LEE BROWN, Plaintiff,
v.
JOHN AND JANE DOES, sued as “CO John Does and CO Jane Does, ” Milwaukee County Sheriff’s Dept., Defendants.

         DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 6), SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1), AND DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT BY July 1, 2016

          HON. PAMELA PEPPER United States District Judge

         The pro se plaintiff, Ennis Lee Brown, is a Wisconsin state prisoner. He filed a complaint alleging that the defendants, John Doe and Jane Doe officers employed at the Milwaukee County Sheriff’s Department, violated his constitutional rights. In this order, the court grants the plaintiff’s motion to proceed in forma pauperis, screens the plaintiff’s complaint, and directs the plaintiff to file an amended complaint curing the deficiencies in the original complaint if he wants to proceed.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case-filing fee, as long as he meets certain conditions. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350.00 filing fee over time through deductions from his prisoner account. Id.

         On March 2, 2016, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $12.24. Dkt. No. 5. The plaintiff paid the fee of $12.25 on March 15, 2016. Accordingly, the court will grant the plaintiff’s motion for leave to proceed without pre-paying the filing fee and allow the plaintiff to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.

         II. SCREENING OF THE PLAINTIFF’S COMPLAINT

         The law allows a court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 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).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff shall provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The plaintiff need not plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court must give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Allegations in the Complaint

         Although currently incarcerated at the Waupun Correctional Institution, the plaintiff’s allegations mostly involve his detention at the Milwaukee County Criminal Justice Facility (MCCJF). The two exceptions to this are his first claim, part of which appears to have taken place in or near a courtroom, and his last claim, part of which took place at Dodge Correctional Institution. The court has grouped the plaintiff’s allegations into the following six claims.

         1. March 29, 2013: Excessive Force and Failure to Provide Medical Attention

         The plaintiff alleges that on March 29, 2013, Deputy Schroeder of the Milwaukee County Sheriff’s Office used excessive force, by continually stunning him with a stun belt which burned two circles in his left arm, as he was chained in a wheelchair and unable to breathe through the bag over his head. Dkt. No. 1 at 2. He alleges that Sergeant Sawczuk of the Milwaukee County Sheriff’s Department was in court and supervising Deputy Schroeder. Sawczuk failed to stop Schroeder and get the plaintiff medical attention, both at the time of the incident and after the plaintiff returned to MCCJF. Id. Sergeant Sawczuk also prevented MCCJF staff and nurses from helping the plaintiff when he was bound in the wheelchair and being stunned in the Jail. Id.at 3.

         2. March 29, 2013 - October 28, 2013: MCCJF Conditions

         The plaintiff alleges that during the time he was in MCCJF, he was punished on “numerous occasions, ” placed in segregation by John and Jane Does, and fed NutraLoaf. Id. at 3.

         On March 29, 2013, Lieutenant Finkley, under the orders of his supervisor, placed the plaintiff in segregation and on suicide watch. Id. The plaintiff was on suicide watch from March 29, 2013, through April 15, 2013, and held in segregation, during which time he indicates that he was being punished. Id. CO Jane Does and John Does “attempted to force me to eat Nutra-loaf and would not feed me or get me medical help!” Id. at 3, ¶ 5.

         From March 29, 2013, through April 20, 2013, the plaintiff was not allowed out of his cell to shower or use the phone. Id. at 4. From March 29, 2013 through October 28, 2013, Lieutenant Finkley, Lieutenant Briggs, Lieutenant Anderkoski, Lieutenant Reeves and Lieutenant Taylor, “under the orders of their supervisors (Jane & John Does), ” repeatedly refused to allow the plaintiff ...


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