United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
John William Key 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 has timely paid his initial partial
filing fee of $1.08. The Court will therefore proceed with
screening the action.
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 a detainee at the Milwaukee Secure
Detention Facility, but was transferred to the Milwaukee
County Jail for a court appearance on February 22, 2019, at
approximately 8:30 a.m. He was held in Cell 11. At around
11:00 a.m., he notified a female correctional officer who was
dispensing bagged lunches that he needed to use the restroom.
She told him that someone was already in the restroom, and
denied him access. Three hours passed, and Plaintiff still
was not granted access to the restroom. He became agitated,
and began pounding on the cell door. This time, a male
correctional officer came to Cell 11 and opened the door.
Plaintiff informed him that he needed to use the restroom
badly, and ran past the correctional officer to the bathroom.
While Plaintiff was using the facilities, the correctional
officer went into the bathroom with at least one other
correctional officer. They pulled him off the toilet, which
resulted in Plaintiff hitting his head on the wall. At this
point, Plaintiff concedes that he became aggressive, and one
of the correctional officers called for help. When more
correctional officers came, instead of being reasonably
restrained, Plaintiff was punched in the face and tackled to
the ground. Following this, he was seen by the nursing staff,
who took pictures of his black eye and swollen face. Back at
Milwaukee Secure Detention Facility, more photos were taken
of his injuries. He was in the Intensive Care Unit for about
ten days. Plaintiff seeks monetary damages.
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). The
Seventh Circuit recognizes “long-term deprivations of
modern toilet facilities as potential Eighth Amendment
violations.” White v. Knight, 710 Fed.Appx.
260, 261 (7th Cir. 2018). However, slight limits on toilet
access, such as a once-every-two-hours rule during lockdowns,
do not violate society's minimum standards of decency.
Id. at 262. In this case, Plaintiff arrived at
Milwaukee County Jail at 8:30 a.m. By 11:00 a.m., he had not
been afforded the opportunity to use the restroom. Three
hours passed, and he still had not been able to use the
restroom. This means that Plaintiff went at least five and a
half hours without toilet facilities. As explained above,
whether a particular deprivation-such as a deprivation of
toilet facilities-violates the Eighth Amendment depends in
large measure on its duration. Myers, 655 Fed.Appx.
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
Eighth Amendment also protects against unreasonable force in
the context of a prison setting. The central inquiry is
“whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy,
559 U.S. 34, 37 (2010) (citing and quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)). Here, Plaintiff has
alleged that an excessive amount of force was used on him,
for no reasonable penal objective. He was accosted in the
midst of relieving himself and pulled off the toilet, despite
the fact that he had notified at least two correctional
officers that he desperately needed to use the facilities.
When he became angry at this turn of events, reinforcements
were called in, and he was allegedly beaten into submission.
The Court finds that this sufficiently states a cause of
action for a malicious or sadistic use of force under the
may therefore proceed on the following claims: (1) a
violation of his Eighth Amendment rights based on his denial
of restroom facilities; and (2) a violation of his Eighth
Amendment rights based on the excessive force used to remove
him from the toilet.
Milwaukee County Jail is not the correct defendant in this
matter and will be dismissed. 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). To facilitate service of
the complaint and identification of the individuals who might
be held responsible for the claims, the Court will add
Milwaukee County Sheriff Earnell Lucas (“Lucas”)
as a defendant for the limited purpose of helping Plaintiff
identify the individual defendants who were personally
involved in this action. See Donald v. Cook Cty.
Sheriff's Dep't, 95 F.3d 548, 556 (7th Cir.
1996). Plaintiff is advised that in the Court's
scheduling order, which will be issued after Lucas is served,
Plaintiff will be afforded a period of time in which to
conduct discovery into the identities of the unnamed
defendants. He should seek this information from Lucas.
Failure to amend the complaint to identify individual
defendants who were personally involved in the claims, by the
deadline set forth in the scheduling order, may result in
dismissal of this action. Once the individual defendants are
identified, the Court will dismiss Lucas as a defendant.
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IS FURTHER ORDERED that Defendant Milwaukee County
Jail be and the same is hereby ...