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Alvarado v. Milwaukee County

United States District Court, E.D. Wisconsin

May 10, 2019

MILWAUKEE COUNTY, et al., Defendants.


          LYNN ADELMAN United States District Judge.

         Ramon Alvarado, Jr., a Wisconsin State prisoner who is representing himself, filed a lawsuit under 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was a pretrial detainee at the Milwaukee County Jail. He also filed a motion to proceed without prepaying the filing fee. This order grants his motion to proceed without prepayment of the filing fee and screens his complaint.

         Motion to Proceed Without Prepaying the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was a prisoner when he filed this case. 28 U.S.C. § 1915A(c). The PLRA gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the prisoner pay an initial partial filing fee. On February 7, 2019, I ordered the plaintiff to pay an initial partial filing fee of $12.37. He paid that fee on February 21, 2019. Accordingly, I will grant the plaintiff’s motion. He must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         Screening of Plaintiff’s Complaint

         Federal law requires that I screen complaints brought by prisoners and pre-trial detainees seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I 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).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed 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 defendant was 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). I will give a pro se plaintiff’s 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)).

         Plaintiff’s Allegations

         The plaintiff was a pre-trial detainee at the Milwaukee County Jail in February 2018. On February 9 at 10:55 a.m., the plaintiff was in the Pod 6A gym. He was talking with Officer B. Anderson, who had a dog with him. Defendant C.O. Teana Jackson saw the plaintiff and told him he was getting a 23-hour cell confinement. He argued that she could not punish him for speaking with another officer and that he was a good inmate. Jackson replied, “You don’t run shit around here, go lock in!” (Docket No. 1 at 3.) The plaintiff responded, “Go lock me in yourself!!!” and then went to his cell (cell 34) on the second tier of the pod.

         The plaintiff and Jackson had another interaction when she was locking in the inmates on the plaintiff’s pod. The plaintiff, in short, told her that if she was not so disrespectful to him, he would have defended her against another inmate who had been disrespectful to her. Jackson returned to his cell and said, “Go ahead and hit me.” (Id.) The plaintiff stated he was referring to hitting another inmate, and Jackson closed his door and returned to locking in other inmates. When she reached the bottom of the stairs from the second tier (where the plaintiff’s cell was), an inmate yelled out from his cell, “I smell pussy!” Jackson then shouted, “Yeah that’s right cell 34 is a pussy!” referring to the plaintiff’s cell.

         Jackson returned from her break around 12:20 p.m., at which time they began serving lunch. According to a food worker, Jackson ordered plaintiff a soft tray. When Jackson brought it to his cell and opened the door, the plaintiff rushed the door. Jackson said, “Go ahead and hit me.” (Id.) The plaintiff pointed his finger at her and told her to stop disrespecting him. Jackson then struck the plaintiff in the face, and the plaintiff struck her back. They fought in his cell. Two other inmates and pod worker Jason (also an inmate) entered his cell to stop the fighting. Another officer, Ither, was also present. The plaintiff stopped fighting and surrendered. He then got punched on the right side of his back. The plaintiff then covered his upper body with his arms and hands. Jackson struck him several times in the side of the head, and the plaintiff rushed out of the cell to get out so he would be in view of the camera. The three inmates then began assaulting him. Jackson and Ither did nothing to stop it. Jackson then punched him and used her taser on him. She got on his back and grabbed his hair, slamming his face into the ground.

         The plaintiff filed a grievance on July 23, 2018 and never got a response. He filed another grievance on September 28, 2018 and again got no response. He suffered bruising and a broken rib as well “three months of brain trauma.” (Id. at 4.) He also experiences memory ...

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