United States District Court, E.D. Wisconsin
RECOMMENDATION AND ORDER
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
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.
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. §
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)
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).
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.
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,
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.
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.
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.
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
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.
May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000).
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, ...