Mckinney v. Carlson et al

Filing 10

ORDER signed by Judge Lynn Adelman on 4/14/11 granting 2 Motion for Leave to Proceed in forma pauperis; denying without prejudice 4 Motion to Appoint Counsel. Further ordering U.S. Marshal to serve defendants George, Carlson and Stanfield and th at these defendants file a responsive pleading to the complaint; defendant Wisconsin Mutual Ins. Co. is dismissed as a defendant and the balance of the filing fee in the amount of $346.92 shall be collected from the prisoner's trust account as specified. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JERMAINE McKINNEY,
Plaintiff,
v.

Case No. 10-C-0944

SHERIFF ROBERT CARLSON,
DEPUTY SHERIFF ALFRED GEORGE, SGT. STAN FIELDS,
and WISCONSIN MUTUAL INSURANCE COMPANY,
Defendants,

ORDER
Plaintiff, Jermaine McKinney, who is incarcerated at Green Bay Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated while he was a pretrial detainee at the Racine County Jail. This matter
comes before the court on plaintiff's motion for leave to proceed in forma pauperis, his
motion to appoint counsel, and for screening of plaintiff’s complaint.
If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Plaintiff has filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial
filing fee of $3.08. I will grant his motion.
I am required to screen complaints brought by prisoners 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 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (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.” Iqbal, 129 S. Ct. at 1949 (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
allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
In 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, 129 S. Ct. at 1950. 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.
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To state a claim for relief 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
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. 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). 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)).
On January 10, 2005, plaintiff was housed as a pretrial detainee in the single cell
segregation unit at the Racine County Jail. At approximately 5:40 p.m., defendant Alfred
George cut off all the water to plaintiff’s cell. George then came in and released several
bursts of pepper spray into plaintiff’s face, body, and extremities, and throughout plaintiff’s
cell.
Plaintiff has asthma and difficulty breathing normally, let alone after being exposed
to pepper spray. Plaintiff begged for medical attention, but George did nothing to help. He
kept the water turned off and came back two hours later and released several more bursts
of pepper spray. George again refused to turn on the water or provide medical assistance.
George returned once more with a 20 inch high cannister of pepper spray and released
several more bursts. At approximately 10:30 p.m., George told plaintiff that he might get
some water if he begged on his knees and apologized. George was later terminated or
resigned due to his conduct.
Plaintiff alleges that his Eighth Amendment rights were violated because: (1) the
repeated use of pepper spray was cruel and unusual punishment; (2) the conditions of
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confinement (water cut off and use of pepper spray) were unconstitutional; and (3) plaintiff
was denied medical treatment for five hours despite urgent and repeated pleas. Plaintiff
further contends that George acted outside the pepper spray protocol and violated
procedure when he made plaintiff beg for medical treatment and water.
“[T]he constitutional rights of a pretrial detainee are derived from the Due Process
Clause of the Fourteenth Amendment and are distinguishable from an inmate’s right not
to subjected to cruel and unusual punishment under the Eighth Amendment.” Board v.
Farnham, 394 F.3d 469, 477 (7th Cir. 2005) “Although the Eighth Amendment does not
apply to pretrial detainees, pretrial detainees are entitled to at least as much protection as
the constitution provides convicted prisoners.” Id. Thus, “plaintiff has the burden of
showing that: (1) the harm to the plaintiff was objectively serious; and (2) the official was
deliberately indifferent to her health or safety.” Id. at 478.
Plaintiff may proceed on a Fourteenth Amendment claim against defendant George
that includes George’s repeated use of the pepper spray, the conditions in plaintiff’s cell
with no water and the pepper spray residue, and George’s failure to provide plaintiff with
medical attention. Plaintiff also states that he wants damages from defendant Sheriff
Carlson for failure to train George in the proper use of pepper spray and treatment of
pretrial detainees. He further seeks damages from defendant Deputy Sgt. Stanfield for
failure to act to stop George’s use of the pepper spray, failure to properly supervise, failure
to turn on the water or vents in plaintiff’s cell, and failure to provide medical care. At this
pleading stage, plaintiff may proceed on individual capacity claims against defendants
Carlson and Stanfield.

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Additionally, liability against a municipality may attach if persuasive evidence is
presented of a training policy or custom, or lack thereof, which reflects a showing of
deliberate indifference on the part of a municipality to the constitutional rights of its
inhabitants. Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) (citing City of
Canton v. Harris, 489 U.S. 378, 389-92; Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994);
and Smith v. City of Joliet, 965 F.2d 235, 237 (7th Cir. 1992)). Plaintiff also may proceed
on claims against defendant Carlson and Stanfield in their official capacities (which are
essentially claims against the Racine County) for Racine County’s failure to train and
supervise defendant George in the use of pepper spray and the treatment of pretrial
detainees. See City of Canton, 389 U.S. at 388.
Plaintiff’s complaint does not contain allegations regarding defendant Wisconsin
Mutual Insurance Company. “[A]lthough the county’s insurance company may be obliged
to indemnify county officials found liable in a suit under § 1983, the insurer is not an
appropriate party to the suit because it is not a state actor, nor did it deprive [the plaintiff]
of any constitutional rights while acting under the color of a state statute.” Wagner v.
Washington County, 493 F.3d 833, 836 (7th Cir. 2007). Wisconsin Mutual Insurance
Company will be dismissed as party to this action.
Finally, plaintiff has filed a motion to appoint counsel. He argues that he is unable
to afford counsel, he is unknowledgeable about the law and the rules of the court, and the
issues in his case are too complex for a lay person to fully appreciate. Although civil
litigants do not have a constitutional or statutory right to appointed counsel, I have the
discretion to request attorneys to represent indigents in appropriate cases pursuant to 28
U.S.C. § 1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007); Luttrell v. Nickel,
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129 F.3d 933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.
1995)). As a threshold matter, litigants must make a reasonable attempt to secure private
counsel on their own. Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288. Once this threshold
burden has been met, the court must address the following question: given the difficulty
of the case, does this plaintiff appear competent to try the case himself and, if not, would
the presence of counsel likely make a difference in the outcome of the case. Pruitt, 503
F.3d at 654-655 (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)). In this case,
plaintiff has provided no indication that he has attempted to secure counsel on his own.
He should provide the court with the names and addresses of counsel he has contacted.
Moreover, the issues in this case appear at this stage to be straightforward and
uncomplicated and plaintiff has presented a detailed complaint setting forth his claims
against defendants. The plaintiff's request for appointment of counsel is denied without
prejudice. Therefore,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket #2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket #4)
is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the
complaint, the summons, and this order upon the following defendants pursuant to Federal
Rule of Civil Procedure 4: Deputy Sheriff Alfred George, Sheriff Robert Carlson, and Sgt.
Stanfield. The plaintiff is advised that Congress requires the U.S. Marshals Service to
charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for

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waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at
28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service
by the U.S. Marshals Service precisely because in forma pauperis plaintiffs are indigent,
it has not made any provision for these fees to be waived either by the court or by the U.S.
Marshals Service.
IT IS ALSO ORDERED that defendants George, Carlson and Stanfield shall file a
responsive pleading to the complaint.
IT IS FURTHER ORDERED that Wisconsin Mutual Insurance Company is
DISMISSED as a defendant in this action.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff's prison trust account the $346.92
balance of the filing fee by collecting monthly payments from the plaintiff's prison trust
account in an amount equal to 20% of the preceding month's income credited to the
prisoner's trust account and forwarding payments to the clerk of the court each time the
amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The
payments shall be clearly identified by the case name and number assigned to this action.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney
General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 537077857.
IT IS FURTHER ORDERED that plaintiff shall submit all correspondence and legal
material to:

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Honorable Lynn Adelman
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is hereby notified that he is required to send a copy of every paper or
document filed with the court to the opposing parties or their attorney(s). Fed. R. Civ. P.
5(a). Plaintiff should also retain a personal copy of each document. If plaintiff does not
have access to a photocopy machine, he may send out identical handwritten or typed
copies of any documents. The court may disregard any papers or documents which do not
indicate that a copy has been sent to each defendant or to their attorney(s).
Plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 14th day of April, 2011.
/s
LYNN ADELMAN
District Judge

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