United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
plaintiff Lewis Edward Byrd III, an inmate at defendant
Vernon County Jail, has filed a proposed complaint under 42
U.S.C. § 1983 alleging that during his incarceration at
the jail, he has been denied medical treatment, and that his
access to a lawyer has been denied and interfered with, at
least partially in retaliation for a grievance he filed. Dkt.
5. The court has granted Byrd leave to proceed in forma
pauperis. Dkt. 4.
next step in this case is for me to screen Byrd's
complaint and dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by
law cannot be sued for money damages. 28 U.S.C. §§
1915 & 1915A. In screening any pro se litigant's
complaint, the court must read the allegations of the
complaint generously. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). After reviewing the complaint with these
principles in mind, I will grant Byrd leave to proceed on a
Sixth Amendment claim against Vernon County concerning the
jail's policy barring Byrd from calling his lawyer. I
will give him an opportunity to file an amended complaint
identifying any individuals whom he intends to sue as named
defendants in this action.
the following facts from Byrd's complaint. Dkt. 5.
currently an inmate in the Vernon County Jail. During his
arrest, he was shot in the elbow and his arm was broken. That
arrest is the subject of a separate suit. See Byrd v.
Arnez, No. 17-cv-191 (W.D. Wis. filed Mar. 13, 2017).
now has bone chips in his elbow and needs surgery. He is in
extreme pain. Dkt. 5, at 2. Sergeant Michael Davig, Captain
Charles Jacobson, and medical staff at the jail know of
Byrd's need for surgery but have not allowed him to
receive it. They have only given him medicine to treat his
pain. They told Byrd that he will have the surgery when he is
transferred to another jail. Although Byrd was briefly
transferred to the other jail, he was transferred back to the
Vernon County Jail before he received the surgery. He alleges
that he will not be transferred to the other jail again.
his incarceration at the Vernon County Jail, Byrd has also
requested to call his lawyer several times. His requests have
been denied because of the jail's policy that calls
cannot be made on non-secure phones. Davig called Byrd's
lawyer on Byrd's behalf without Byrd's knowledge or
consent. Byrd filed a grievance with Jacobson about
Davig's actions. Jacobson denied Byrd's grievance.
Byrd filed his grievance, the “legal mail” that
he receives has been tampered with on two occasions. One
time, the envelope was open when Byrd received it. Another
time, a correctional officer found Byrd's mail behind a
understand Byrd to attempt to bring four claims under 42
U.S.C. § 1983: (1) denial of adequate medical treatment
in violation of the Eighth Amendment; (2) denial of telephone
access to a lawyer in violation of the Sixth Amendment; (3)
interference with legal mail in violation of the Sixth
Amendment; and (4) retaliation for filing a grievance in
violation of the First Amendment.
state a claim for relief under 42 U.S.C. § 1983, Byrd
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 done by a person or persons acting under
color of state law. Buchanan-Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). Municipal
entities such as counties may only be held liable under
§ 1983 if the municipality has a policy or custom that
causes a constitutional violation. Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978).
alleges that he cannot call his lawyer. A pretrial
detainee's Sixth Amendment right to counsel may be
violated if he is not allowed to talk to his lawyer for a
sufficiently lengthy period of time. Tucker v.
Randall, 948 F.2d 388, 390-91 (7th Cir. 1991)
(“Denying a pretrial-detainee access to a telephone for
four days would violate the Constitution in certain
circumstances. The Sixth Amendment right to counsel would be
implicated if plaintiff was not allowed to talk to his lawyer
for the entire four-day period.”). Byrd does not
indicate how long he has been barred from calling his lawyer,
but it is reasonable to infer from his allegations that it
has been a sufficiently lengthy period of time. For the
purposes of screening his complaint, I will assume that
Davig's calling Byrd's lawyer on Byrd's behalf
and Byrd's receipt of “legal mail” are not
sufficient to satisfy Byrd's right to counsel. Byrd
alleges that he cannot call his lawyer because of a policy at
the Vernon County Jail, so I will allow him to proceed on a
Monell claim against the county. Although Byrd names
the Vernon County Jail as a defendant, his suit is properly
brought against Vernon County, the governmental entity that
runs the jail, so I will direct the clerk of court to update
the case caption accordingly.
Byrd does not allege that he has been denied medical
treatment or that his legal mail has been interfered with
because of the jail's policy or custom, so he does not
state a ...