United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
pro se plaintiff, Tiedrice Holland, is confined at
the Milwaukee County House of Correction. On August 7, 2017,
Magistrate Judge Nancy Joseph screened his civil rights
complaint in which he alleged that defendant Lt. Miliacca
made him lay on his back on a metal locker. Magistrate Judge
Joseph determined that the complaint did not state a claim
but directed that if Holland filed an amended complaint
providing more details about his claim, the Court would
reevaluate whether he stated a claim. Holland has filed an
amended complaint which the Court will now screen under 28
U.S.C. § 1915A.
case is currently assigned to Magistrate Joseph. However,
because not all parties have had the opportunity to consent
to magistrate judge jurisdiction, the case was referred to
this Court for the limited purpose of screening the
complaint. The case will be returned to Magistrate Joseph
after entry of this order.
Court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an 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. Id. §
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“Labels and conclusions” or a “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).
factual content of the complaint must allow the Court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Id. at 679. First, the Court determines
whether the plaintiff's legal conclusions are supported
by factual allegations. Id. Legal conclusions not
supported by facts “are not entitled to the assumption
of truth.” Id. Second, the Court determines
whether the well-pleaded factual allegations “plausibly
give rise to an entitlement to relief.” Id.
The Court gives 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)).
directed, the plaintiff's amended complaint provides more
details about the incident. Specifically, he alleges that Lt.
Miliacca saw him sitting in his bunk area on his locker and
sarcastically asked him if his locker was his bed. Lt.
Miliacca asked C.O. Singh where he had directed the plaintiff
to be, and Singh replied on the bed. The plaintiff asserts
that this is untrue. Lt. Miliacca asked the plaintiff if he
knew the difference between a bed and a locker, and stated
that he needed to learn the difference. Lt. Miliacca then
instructed the plaintiff to lay flat on his locker, which is
about two feet high and three to four feet long, made of
metal and very uncomfortable. The plaintiff followed the
direction so that he would not be taken to segregation. As he
laid flat on his back on the locker, he pulled his back and
he also suffered a “slip disk or whatever in my neck
because of laying back on the locker trying to balance my
weight and head from falling and the getting up I almost fell
[sic].” (Docket #10 at 3). When the plaintiff could not
stand the pain any longer he sat up and Lt. Miliacca told him
to lie down again.
pulling his back and neck, C.O. Singh would not allow the
nurse to see the plaintiff even though C.O. Singh could see
he was in pain. The pain lasted one week and the plaintiff is
still receiving treatment. The plaintiff eventually saw the
on the plaintiff's new allegations and construed
liberally, the Court finds that he states a deliberate
indifference claim against Lt. Miliacca for subjecting him to
a substantial risk of serious harm by making him lay on his
locker and continue to lay on the locker after he was
injured. See Hope v. Pelzer, 536 U.S. 730, 737-38
(2002). At this stage, the plaintiff may also proceed on a
deliberate indifference claim against C.O. Singh for taking
part in the incident and also for not allowing the plaintiff
to see the nurse after he was injured. See Arnett v.
Webster, 658 F.3d 742, 753 (7th Cir. 2011).
the plaintiff does not state a claim against Milwaukee County
because he does not allege that the incident was the result
of an official policy or custom. See Chatham v.
Davis, 839 F.3d 679, 685 (7th Cir. 2016). The plaintiff
also does not state a claim against the House of Correction
because he may not sue the entity under Section 1983. See
Whiting v. Marathon County Sheriff's Dep't, 382
F.3d 700, 704 (7th Cir. 2004). Lastly, he may not proceed
against Nurse Steven because he does not allege that Nurse
Steven was in any way involved in violating his rights.
See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th
Cir. 2009); Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995).
IT IS ORDERED that defendants Milwaukee
County, House of Correction, and Nurse Steven be and the same
are hereby DISMISSED from this action;
IS FURTHER ORDERED that pursuant to the informal
service agreement between Milwaukee County and this court,
copies of plaintiff's amended complaint and this order
are being electronically sent today to Milwaukee County for
service on the Milwaukee County defendants;
IS FURTHER ORDERED that, pursuant to the informal
service agreement between Milwaukee County and this court,
the defendants shall file a responsive pleading to the
amended complaint within ...