United States District Court, E.D. Wisconsin
LANIS E. SOLOMON, JR., Plaintiff,
MILWAUKEE COUNTY SHERIFF'S OFFICE, C.O. SOBEK, C.O. HANNAH, C.O. MICKULECY, C.O. BRIGGS, C.O. JACKSON, and C.O. VANG, Defendants.
Stadmueller, U.S. District Judge.
Lanis E. Solomon, Jr., who is incarcerated at the Milwaukee
County Jail (the “Jail”), proceeds in this matter
pro se. He filed a complaint alleging that
Defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff's
petition to proceed without prepayment of the filing fee
(in forma pauperis). (Docket #7). This matter was
originally assigned to Magistrate Judge David E. Jones. Due
to Plaintiff's indigence, Magistrate Judge Jones waived
payment of an initial partial filing fee. (Docket #5). The
case was reassigned to this branch of the Court on December
20, 2018. The Court now proceeds to screen the complaint.
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. §
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, the plaintiff 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 the plaintiff 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 Atl. 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. Section 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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. of N. 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)).
alleges that he was incarcerated in the Jail in August 2018.
(Docket #6 at 2). Defendants are correctional officers at
the Jail. At one point, Defendants accused Plaintiff of
having a handcuff key on his person. Id. Plaintiff
admitted that he had one secreted in his rectum. Id.
All of the Defendants then allegedly rushed into
Plaintiff's cell and, while holding him down, forcibly
removed the key from his rectum. Id. at 3. Plaintiff
further claims that he was taken to the hospital afterwards,
and when he returned to the Jail, he was sprayed with pepper
spray (he does not explain what prompted the pepper
spraying). Id. at 3.
allegations state a claim for excessive force. Because he was
a pre-trial detainee at the time of the relevant incident,
his claim arises under the Due Process Clause of the
Fourteenth Amendment. In the excessive force context, the Due
Process Clause, which prohibits all “punishment,
” affords broader protection than the Eighth
Amendment's protection against only punishment that is
“cruel and unusual.” See Wilson v.
Williams, 83 F.3d 870, 875 (7th Cir. 1996).
Fourteenth Amendment prohibits the “objectively
unreasonable” use of force on a pre-trial detainee.
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473
(2015). Objective reasonableness “turns on the facts
and circumstances of each particular case, ” and the
court must make this determination “from the
perspective of a reasonable officer on the scene.”
Id. The court must also account for the jail
officials' need to “preserve internal order and
discipline and to maintain institutional security.”
Id. (quotation omitted).
that bear on the reasonableness or unreasonableness of the
force used may include, among other things: “the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's
injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.”
Id. Taking Plaintiff's allegations as true, the
Court concludes that he has stated a claim for excessive
force. Defendants will be free to argue that Plaintiff's
possession of a handcuff key posed a sufficient security risk
that they needed to intervene immediately and forcefully to
remove it from Plaintiff's rectum.
Fourth Amendment protects, to some degree, prisoners'
bodily integrity against unreasonable intrusions
into their bodies.” King v. McCarty,
781 F.3d 889, 900 (7th Cir. 2015); Sparks v.
Stutler, 71 F.3d 259, 261 (7th Cir. 1995) (applying the
Fourth Amendment in a prison context to the use of a
catheter, but finding no liability due to qualified
immunity). The Fourth Amendment assesses whether a search was
“reasonable” under an objective view of the
circumstances. Florida v. Jimeno, 500 U.S. 248,
has sufficiently alleged that he was the victim of an
unreasonable body cavity search in light of the fact that
Plaintiff would have passed the key eventually. Defendants
are free to argue that the urgency of the situation and the
jail's penological interests warranted a rectal search.
Milwaukee County Sheriff's Office will be dismissed as a
defendant. Generally, county jails are non-suable entities.
Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th
Cir. 2012). Additionally, this incident appears to be
isolated and unique to the Plaintiff-there are no allegations
that this was done pursuant to a policy that would implicate
the Milwaukee County Sheriff's ...