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Evans v. Clarke

United States District Court, E.D. Wisconsin

November 28, 2017

MARKUS EVANS, Plaintiff,
v.
DAVID CLARKE, et al., Defendants.

          RECOMMENDATION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Markus Evans, who is incarcerated at the Wisconsin Secure Program Facility, is representing himself. He has paid the full filing fee. This action was initially filed in the Western District of Wisconsin but was transferred to this district in August of 2017.

         The court must 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); Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999). 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, Evans is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for Evans to 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 mere “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). 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's 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to 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)).

         Evans alleges he was detained at the Milwaukee County Jail in March of 2011 and “ended up in a physical altercation with officers Smith and John Does” when they attempted to search his cell. (ECF No. 1 at 2.) As a result he was placed in a restraint bed and most of his clothes removed. (ECF No. 1 at 2.) He was later returned to his cell but without any clothes, bedding, hygiene items, or personal property. (ECF No. 1 at 2-3.) He was denied the ability to make phone calls, access to recreation, and visitation. (ECF No. 1 at 3.) He alleges he was “confined in an unsanitary cell with his urine and feces” and kept in handcuffs and shackles even when in his cell. (ECF No. 1 at 3.) He was allegedly subject to these conditions from March through May of 2011.

         The allegations in Evans's complaint were presented in a prior action Evans filed in 2013. See Evans v. Clarke, 13-CV-1046-JPS (E.D. Wis). That action was dismissed without prejudice when Evans moved to dismiss his complaint at the Rule 16 scheduling conference. (ECF No. 19.) Because that prior dismissal was without prejudice, it does not bar this action. Finally, although the complaint relates to events that occurred many years ago, that statute of limitations in Wisconsin for a claim under 42 U.S.C. § 1983 is six years. Gray v. Lacke, 885 F.2d 399, 407-409 (7th Cir. 1989); Wis.Stat. § 893.53. Since this action was filed on January 30, 2017, it appears timely.

         As defendants, aside from David Clarke, the Milwaukee County Sheriff at the time, Evans refers to “Smith” and “John - Jane Does.” Evans describes “Smith” as an “officer at the Milwaukee County Jail Detention facility” and “John and Janes[s] Does” as “officers and supervisors currently employed at Milwaukee County Jail Detention facility.” (ECF No. 1 at 1.) He continues, “The defendants are hereby sued in their individual and/or official capacity.” The Eighth Amendment proscribes cruel and unusual punishment. However, “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions…. [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 (1977)). Because Evans was detained at the Milwaukee County Jail prior to having been convicted, his claims are assessed under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). The Due Process Clause provides a pretrial detainee with protections at least as great as those afforded a convicted prisoner under the Eighth Amendment. Revere, 463 U.S. at 244. In accordance with 28 U.S.C. § 1915A(b), the court identifies the following cognizable claims in Evans's complaint.

         Evans plausibly alleges a violation of the Due Process Clause with respect to his allegation that he was left continuously shackled and handcuffed while in his cell for approximately three months.

The Due Process Clause of the Fourteenth Amendment prohibits the use of bodily restraints in a manner that serves to punish a pre-trial detainee. Youngberg v. Romeo, 457 U.S. 307, 316, 73 L.Ed.2d 28, 102 S.Ct. 2452 (1982); Bell v. Wolfish, 441 U.S. 520, 535-37, 60 L.Ed.2d 447, 99 S.Ct. 1861 (1979); Murphy v. Walker, 51 F.3d 714, 717-18 (7th Cir. 1995). The use of bodily restraints constitutes punishment in the constitutional sense if their use is not rationally related to a legitimate non-punitive government purpose or they appear excessive in relation to the purpose they allegedly serve. Wolfish, 441 U.S. at 561.

May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000).

         As for Evans's claim that he was denied access to personal hygiene items, denied the opportunity to shower, and kept in an unsanitary cell, these claims plausibly rise to the level of a denial of the “minimal civilized measures of life's necessities, ” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The court understands Evans to be alleging that these deprivations persisted for three months. Such deprivations of this length may plausibly rise to the level of constitutional violations. Cf. Cherry v. Berge, No. 05-C-38-C, 2005 U.S. Dist. LEXIS 9636, at *11-12 (W.D. Wis. May 17, 2005) (comparing Sanders v. Sheahan, 198 F.3d 626, 629 (7th Cir. 1999) and Antonelli v. Sheahan, 81 F.3d 1422, ...


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