United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Rebecca Terry (“Terry”) filed this action
pursuant to 42 U.S.C. § 1983, complaining that her
constitutional rights were violated when she was ignored
while she gave birth in a cell at the Milwaukee County Jail
(the “Jail”). See (Docket #1).
Defendants include Milwaukee County (the
“County”), several County and Jail officials,
including former Milwaukee County Sheriff David Clarke
(“Clarke”), and Armor Correctional Health
Services (“Armor”), a private corporation that
provides healthcare services to inmates at the Jail.
both the County and Armor, Terry asserts claims under
Monell v. Department of Social Services, 436 U.S.
658 (1978). Monell holds that a municipal entity or
a related corporate entity like Armor can be liable under
Section 1983, but not simply because its employees violate
the plaintiff's constitutional rights. Id. at
Instead, a municipality can be liable for a constitutional
violation only when the violation is brought about by (1) its
express policy, (2) a widespread, though unwritten, custom or
practice, or (3) a decision by an agent with “final
policymaking authority.” Darchak v. City of Chicago
Bd. of Educ, 580 F.3d 622, 629 (7th Cir. 2009).
case, Terry advances a theory that the County and Armor had a
widespread custom or practice of ignoring inmates'
serious medical needs. The County and Armor have each filed
motions for judgment on the pleadings, asserting that
Terry's Monell claim is overbroad and
unworkable. The motions are fully briefed and, for the
reasons stated below, they will be granted.
Rule of Civil Procedure Rule 12(c) permits a party to move
for judgment after the complaint and answer have been filed.
Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009). A motion for judgment on the pleadings
is governed by the same standard as a motion to dismiss for
failure to state a claim under Rule 12(b)(6). Adams v.
City of Indianapolis, 742 F.3d 720, 727-28 (7th Cir.
2014). To survive a challenge under Rule 12(c) or 12(b)(6), a
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In other words, the
complaint must give “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). The
allegations must “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
speculative level[.]” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation
omitted); Ashcroft v. Iqbal, 555 U.S. 662, 679
(2009). In reviewing the complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Kubiak, 810 F.3d at 480-81.
following facts are drawn from Terry's complaint. (Docket
#1). The Court first recounts Terry's allegations
regarding her childbirth at the Jail, then her explanation as
to how that episode fits into an alleged larger pattern of
medical mistreatment at the Jail.
Terry's Childbirth at the Jail
March 9, 2014, Terry was arrested in Franklin, Wisconsin and
taken to the Jail. She was nine months pregnant, due to give
birth the next day. During booking, she began to experience
labor pains and was taken to Froedtert Hospital. Two
sheriff's deputies accompanied her. Hospital staff told
the deputies that Terry was in labor, but that she could
return to the Jail.
deputies returned her to the Jail and she was placed in the
infirmary. Terry informed the correctional officer who was
escorting her to the infirmary that, based on her prior
experiences in childbirth, she believed delivery would occur
that evening. Defendant Brian Wenzel (“Wenzel”),
a Jail correctional officer, was working in the infirmary at
placed Terry in an infirmary cell. The cell was extremely
dirty, including a filthy sink, toilet, and floor. Soon after
entering her cell, Terry began experiencing more labor pains,
much more intensely and closer together than before. Terry
pushed the emergency button in her cell to ask for
assistance. Defendants, including Wenzel and Armor nursing
staff, ignored her. This occurred despite that fact that
Wenzel was at his post just yards from Terry's cell.
condition continued to worsen, her labor pains increased, and
she repeatedly cried out for help and hit the emergency
button in her cell. Wenzel ignored her, and no Armor staff
ever made rounds to check on her. After more than three hours
in labor, alone in her cell screaming for help, Terry finally
birthed her son, who emerged from the birth canal making
choking sounds and blue in the face. She was terrified that
her son could not breathe, and in her desperation, she
reached into his throat to clear his airway herself. At this
time, Wenzel finally looked into Terry's cell and called
Armor employees arrived. They then called emergency medical
staff, who transported Terry to Sinai Hospital where she and
her child received post-partum care. Eventually, Terry was
returned to the Jail.
Terry's Monell Allegations
claims that her own instance of mistreatment during
childbirth fits into a larger practice whereby Jail and Armor
staff routinely ignore inmates' requests for medical care
or their obvious need for care. To flesh out this claim, she
details in her complaint several other instances of medical
mistreatment at the Jail.
in 2001, Milwaukee County entered into a consent decree
governing medical care at the Jail in Christensen v.
Sullivan, Milwaukee County Circuit Court No.
1996-CV-1835. The consent decree identified several
requirements for the Jail, including requirements related to
women's health and medical emergencies. Under the consent
decree, Dr. Ronald Shansky (“Shansky”) was
appointed as the Medical Monitor of the Jail and has
published reports documenting deficiencies in medical care at
years leading up to Terry's experience, Shansky has
repeatedly reported inadequate medical and correctional
staffing at the Jail. He frequently explained that as a
result of inadequate staffing and inadequate monitoring of
inmate medical needs, inmates do not receive the care they
need and suffer severe delays in receiving care. Shansky has
also opined that correctional officers choose to ignore
symptoms reported by inmates, causing a further breakdown in
the provision of medical care.
his admonitions, the Jail has failed to comply with
Shansky's recommendations. According to Terry,
Shansky's reports put Defendants on notice about a
pattern of inadequate care and staffing at the Jail. Sixteen
years after it was originally entered, the consent decree
remains in force because, according to Terry, the Jail is not
in substantial compliance with its provisions.
addition to Shansky's findings, a pattern of medical
emergencies and deaths at the Jail also demonstrates, in
Terry's view, Defendants' indifference to inmate
medical needs. On March 3, 2009, Virgilio Jimenez
(“Jimenez”) died in his cell at the Milwaukee
House of Correction, which was then under the supervision of
Clarke. According to the policy in place at the time,
correctional officers were required to check on inmates every
thirty minutes. However, despite the fact that Jimenez missed
breakfast and did not get out of bed earlier that morning
during a search, correctional officers failed to conduct the
required check-ins. Jimenez's body was discovered in his
cell later that morning, more than six hours after he was
last seen alive.
other cited instances of alleged neglect occurred at the Jail
itself. In April 2009, Corey Kleser, an inmate at the Jail
and a Type I diabetic, was denied proper medical care,
including insulin, for a period of more than three months. In
October 2009, Robert Schmidt was detained at the Jail and
denied medical care, including his prescribed medication for
a blood disorder, for more than ten days, causing a severe
and painful blood clot.
January 2011, Antonio Cowser (“Cowser”) was
booked into the Jail and told correctional officers he was
suicidal. Despite his clear medical needs, Cowser received no
treatment for his suicidal ideation. Over the course of
thirteen days, he committed suicide by starving and
dehydrating himself, and no correctional officer or medical
staff intervened. Also in 2011, Paul Heytens
(“Heytens”) committed suicide in his cell at the
Jail after he was denied his prescribed psychotropic
medication and correctional officers failed to monitor his
activities. Despite rules requiring correctional officers to
conduct thirty-minute checks on inmates, Heytens' body
was not found for more than eleven hours after he hanged
then turns to instances of claimed mistreatment occurring
after her experience in March 2014. In October of that year,
inmate Kwame Moore (“Moore”) suffered intense
sudden pain in his groin, consistent with testicular torsion.
Moore complained to Jail and Armor staff about the
debilitating pain. They refused his requests for medical
care. By the time Moore received care the following day, it
was necessary to remove the affected testicle.
April 2016, Terrill Thomas (“Thomas”) was
detained at the Jail. He suffered from bipolar disorder. For
reasons Terry does not explain, correctional officers shut
off water to Thomas' cell. He died in his cell seven days
later as a result of dehydration.
2016, Shade Swayzer (“Swayzer”) was detained at
the Jail at a time when she was nearly nine months pregnant.
Like Terry, Swayzer went into labor at the Jail and was
denied medical care. Swayzer's daughter did not survive
the ordeal and died shortly after her birth at the Jail.
August 2016, Kristin Fiebrink (“Fiebrink”) was
detained at the Jail having recently used heroin and alcohol.
On the night of August 27, 2016, Fiebrink screamed for help
in her cell, but correctional officers ignored her pleas. She
was found dead the following morning, but Terry does not give
the cause of death. Presumably, it resulted from withdrawal
in October 2016, Michael Madden (“Madden”) was
detained at the Jail. He suffered from a heart condition and
heroin addiction. While in custody, he suffered a seizure
that rendered him unconscious, but correctional officers
failed to provide him medical care. They instead picked
Madden up and dropped him on his head. He died later that
Terry's view, these injuries and deaths “did not
occur in isolation from each other. The County of Milwaukee
and Armor Correctional Health Services have consistently
failed to provide adequate medical care for the detainees at
the jail.” (Docket #1 ¶ 68). Terry claims that
each occurrence, coupled with Shansky's repeated pleas
for reform of Jail medical practices, put Defendants on
notice of an ongoing, serious problem with medical care at
the Jail. Specifically,
[b]y March 2014, Defendant Clarke was on notice of a
widespread practice at the Milwaukee County Jail of ignoring
the serious medical needs of detainees like [Terry], thereby
exposing them to unreasonable risks of harm. In the Milwaukee
County Jail detainees with clear symptoms of serious medical
illness, injury, or conditions who ...