United States District Court, E.D. Wisconsin
LANIS E. SOLOMON, JR., Plaintiff,
MILWAUKEE COUNTY SHERIFF OFFICE, Defendant.
STADTMUELLER, U.S. DISTRICT JUDGE
Lanis E. Solomon, Jr. proceeds in this matter pro
se. He filed a complaint alleging that Defendant
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 #2). Plaintiff's initial partial
filing fee was waived in this action, and Plaintiff has not
notified the Court of his desire to voluntarily dismiss the
case. The Court will therefore proceed with screening the
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. County 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,
alleges that while he was incarcerated in the Milwaukee
Criminal Justice Facility (“MCJF”) he was accused
of tampering with a smoke detector and placed in restraints.
(Docket #1 at 2). He was then confined in a cell for nine
hours, during which time he was denied supper. Id.
He had a seizure while confined and defecated on himself.
Id. at 3. He complained about the seizures to MCJF
staff. Id. Upon release from the cell, he was
covered in feces and had to take a shower. Id. He
explains that on one other occasion, he was restrained and
confined for eleven hours. Id.
allegations invoke Plaintiff's Eighth Amendment right to
be free from cruel and unusual punishment. In particular,
prisoners have a right to certain necessities of life such as
“adequate food, clothing, shelter, and medical
care.” Farmer v. Brennan, 511 U.S. 825, 832
(1994). They are also entitled to “sanitation and
hygienic materials.” Myers v. Ind. Dep't of
Corr., 655 Fed.Appx. 500, 503 (7th Cir. 2016). Whether a
particular deprivation violates the Eighth Amendment depends
in large measure on its duration. Id. at 504. Though
the Court will allow Plaintiff to proceed on this claim,
Defendant is free to argue that the deprivation was not long
enough to become one of constitutional magnitude.
Defendant, the Milwaukee County Sheriff's Office, may not
be the correct defendant in this matter. Only those officials
who are directly responsible for a constitutional violation
may be sued under Section 1983. Minix v. Canarecci,
597 F.3d 824, 833-34 (7th Cir. 2010). However,
Plaintiff's allegations are not clear as to who should
ultimately be held responsible for the issues. He names
“C.O. Sobek” and “C.O. Dragoo” who
ordered him into restraints, and “C.O. Kentrell”
and “C.O. Spidell” who actually placed him in the
restraints. (Docket #1 at 2). “C.O. Stevens”
refused him supper. Id. “C.O. Briggs”
refused to free him from his restraints. Id. at 3.
Thus, the Court will serve Defendant with the complaint, and
it may move to have different defendants substituted into the
case if that is appropriate. Finally, the Court notes that
Plaintiff requests compensatory damages for loss and injury,
and punitive damages to punish and deter. Id. at 4.
Monetary damages are acceptable in a Section 1983 lawsuit.
light of the foregoing, the Court finds that Plaintiff may
proceed on the following claim pursuant to 28 U.S.C. §
1915A(b): cruel and unusual punishment, in violation of the
Eighth Amendment, for being restrained and confined without
food while he suffered a seizure.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that Plaintiff's motion to
appoint counsel (Docket #6) be and the same is hereby
IS FURTHER ORDERED that pursuant to the informal
service agreement between Milwaukee County and this court,
copies of Plaintiff's complaint and this Order are being
electronically sent today to ...