Harris v. Superintendent Milwaukee County Correctional Facility-South et al

Filing 25

ORDER signed by Judge Lynn Adelman on 3/14/12 denying 20 Motion to Strike. (cc: all counsel, via USPS to plalintiff, Warden-KMCI) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ORBIN B. HARRIS,
Plaintiff,
v.

Case No. 11-CV-00872

RODNEY K. MALONE, D. SALSBURY,
and DAVID A. CLARKE, JR.,
Defendants.

DECISION AND ORDER
Now before me are a notice of amended complaint and amended complaint filed by
plaintiff and defendants’ motion to strike the amended complaint as it relates to Sheriff
David A. Clarke, Jr.
In his notice of amended complaint, plaintiff cites Federal Rule of Civil Procedure
15, refers to an amendment as a matter of right, and asserts that he does not need leave
to amend at this time. In the proposed amended complaint, the plaintiff adds the name of
the Superintendent, Rodney K. Malone; includes information regarding the personal
involvement of Sheriff Clarke; names each defendant in his or her official capacity; and
increases his monetary demands.
Although defendants object to the timing of the amended complaint and maintain
plaintiff does not have a right to amend under Rule 15, plaintiff filed his amended complaint
more than a month before defendants filed their answer and defendants suffer no prejudice
from the amendment. I will allow plaintiff’s amended complaint and screen it. See 28
U.S.C. § 1915A.

Defendants have moved to strike plaintiff’s amended complaint as it relates to
Sheriff Clarke. They argue that a court can still deny an amended complaint if it fails to
remedy deficiencies contained in the original pleading and is vulnerable to a motion to
dismiss. Defendants maintain that the proposed amended complaint is remarkably similar
to the old one and does not allege how Sheriff Clarke, though his own actions, violated
plaintiff’s rights. I will deny defendants’ motion to strike because plaintiff has alleged
personal involvement by Sheriff Clarke. Plaintiff asserts Sheriff Clarke took over the
operation of the Milwaukee County Correctional Facility-South in December 2008.
Although plaintiff has not gone into great detail, he asserts that Sheriff Clarke “personally
chose to keep the plaintiff subject[ed] to the same arbitrary and excessive restrain[t]s” and,
later, “took it upon himself to defy the court’s order to lift said restrain[t]s” and “refused to
take the plaintiff out of punitive administrative confinement and release him back into
general population.” (Am. Compl., 5, 8.) This language implies individual action (or
inaction) by Sheriff Clarke and is sufficient at this stage.
Plaintiff has set forth Fourteenth Amendment claims against all three defendants
in their individual capacities with regard to the plaintiff’s placement in punitive segregation
without due process of law. He also may proceed on individual capacity claims against
each defendant that his placement in segregation violated: (1) his First Amendment right
to correspond with his family; (2) his First Amendment right to read newspapers and other
publications; (3) his rights under the First Amendment to use the mail and correspond with
his attorney; and (4) his rights under the Fourteenth Amendment regarding his conditions
of confinement and the denial of all outdoor exercise for seven months.

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However, plaintiff does not suggest that any of the harm he suffered was the result
of a formal or informal policy or custom of the Milwaukee County Correctional Facility South. Therefore, he will be allowed to proceed on his claims against the defendants in
their individual capacities only. See Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir.
2008) (governmental entities cannot be held liable under § 1983 for the unconstitutional
acts of their employees unless those acts were carried out pursuant to an official custom
or policy).
A plaintiff’s claims against the sheriff or other employees in their official capacities are
treated as claims against the County itself. Id. Municipal liability is limited to action for
which the municipality is actually responsible. Id.
Defendants have already filed an answer to plaintiff’s amended complaint so none
is required. To move this case forward, I will issue a separate scheduling order.
THEREFORE, IT IS ORDERED that defendants’ motion to strike Amended
Complaint as it relates to Sheriff David A. Clarke, Jr. [DOCKET #20] is DENIED.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 14th day of March 2012.

s/_______________________
LYNN ADELMAN
District Judge

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