De Jesus v. Odom et al

Filing 13

DECISION AND ORDER Denying Plaintiff's Motion for Clarification, Granting in Part and Denying in Part Plaintiff's Request that the Court Return Exhibits, Denying as Moot Plaintiff's Motion for Extension of Time to File Amended Complain t, Denying Without Prejudice Plaintiff's Motion to Appoint Counsel 10 and Screening Plaintiff's Amended Complaint. Further ordering the following defendants are dismissed as parties to this action David A. Clarke, Jr., Nancy Evans, Darlene Jones-Graham, and William Dukert. U.S. Marshal shall serve the remaining defendants. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF W ISCONSIN

JAMIE F. DE JESUS,
Plaintiff,
v.

Case No. 12-CV-0306

DAX C. ODOM, DAVID A. CLARKE, JR.,
NANCY EVANS, MARY COOK,
DARLENE JONES-GRAHAM,
W ILLIAM DUKERT, and GREGORY BACON,
Defendants.

DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION
(DOC. 10), GRANTING IN PART AND DENYING IN PART PLAINTIFF’S REQUEST
THAT THE COURT RETURN EXHIBITS (DOC. 10), DENYING AS MOOT PLAINTIFF’S
MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT (DOC. 10),
DENYING W ITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL
(DOC. 10), AND SCREENING PLAINTIFF’S AMENDED COMPLAINT
This matter comes before the court on plaintiff's motions and for screening of
plaintiff’s amended complaint. See 28 U.S.C. § 1915A.
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)).

Plaintiff indicates that he spent eighteen months compiling his original complaint and
exhibits, but all he needed to do was tell the story of what happened to him. Instead, he
spent too much time writing how he thought lawyers would write.
In the June 19, 2012, order, the court admonished plaintiff to be as brief as possible.
Nevertheless, his amended complaint is still thirty-eight pages, most of which are
superfluous. Even so, the amended complaint seems to contain all of plaintiff’s allegations
regarding each of the defendants and will be screened.
COMPLAINT AVERMENTS
On April 1, 2010, while plaintiff was a pretrial detainee in the custody of the
Milwaukee County Sheriff’s Office, defendant Assistant District Attorney Dax C. Odom
called the Milwaukee County Correctional Facility - South and asked defendant Mary Cook
to place plaintiff on an “incommunicado/maximum security restriction,” or “11 status.”
(Amended Complaint at 5-6). This “11 status” rescinded all of plaintiff’s communications,
incoming and outgoing. Id. Odom made this personal request due to possible forthcoming
criminal charges against plaintiff for intimidation. The same day, Cook and two of her
subordinates arrived at plaintiff’s housing unit, handcuffed him, and then escorted him to
a segregation unit. Cook told plaintiff that she was just complying with the request made
by the assistant district attorney.
Plaintiff was held in the segregation unit until April 9, 2010, when Captain Anderson
arrived on the unit and placed plaintiff on a transfer list. Captain Anderson told plaintiff she
had been totally unaware of the situation. Plaintiff was returned to general population
housing unit and received all communications and rights afforded to other pretrial detainees.

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During his time in the segregation unit, plaintiff was strip searched, given a pink jump
suit to wear, and was not given a mattress until approximately 7:00 p.m. On April 3, 2010,
defendant Captain Darlene Jones-Graham denied a personal visit from plaintiff’s mother.
Plaintiff was informed on April 5, 2010, that he would have phone calls, incoming or
outgoing mail, or visits. However, he was able to place a call to his attorney on April 6,
2010. After that, plaintiff was told he would receive legal mail only and that his visits would
be reinstated. On April 7, 2010, Lt. Torres relayed the following message: “A.D.A. Odom
was going to call your attorney today, planned to see the judge on Friday 4/09/10, expects
order revoking your privileges to be signed then, you are committing a crime and be
expecting criminal charges for intimidation of a victim.” (Complaint at 31). Plaintiff received
legal correspondence on April 7, but was informed that a letter from his mother was being
denied delivery.
Between April 9 and April 20, after being returned to the general population, plaintiff
filed numerous grievances regarding his earlier stay in segregation. His attorney had to wait
for seventy minutes to see him on April 20, 2010. Ultimately, the attorney could not wait any
longer and therefore left plaintiff a copy of the document defendant Odom intended to
submit at the April 22, 2010, bail hearing. Plaintiff was not allowed to attend the April 22,
2010, bail hearing because defendant Odom had not prepared an order to produce. At the
hearing, defendant Odom made a proffer of evidence and requested a court order
rescinding plaintiff’s incoming and outgoing communication privileges with the exception of
attorney contact. An order rescinding plaintiff’s communications was entered by the court.
W hen plaintiff learned he would not be attending his bail hearing, he made a
disturbance and was placed in segregation temporarily. However, when plaintiff was ready

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to return, the order arrived. Plaintiff had a mental breakdown or panic attack and remained
in segregation. Although plaintiff was told he would not receive a rules violation for his
actions during his mental breakdown, defendant Gregory Bacon approved a citation for four
rules violations stemming from the incident. Plaintiff was found guilty during a disciplinary
hearing conducted by intercom on April 27, 2010. He was sanctioned with twenty-five days
of “food curtailment,” during which he received only nutriloaf and bread. Plaintiff remained
in segregation until June 1, 2010, when he signed a guilty plea in his underlying case just
to be let out of segregation and to be able to communicate with his family. On June 1,
plaintiff was reclassified as general population and his communication privileges were
restored.

Between April 22 and June 1, plaintiff wrote many grievances and letters

regarding his situation.
Plaintiff also submits that unspecified defendants and other Milwaukee County
Sheriff’s Office staff retaliated against him between June 14, 2010, and September 4, 2010.
He addressed numerous grievances in a July 29, 2010, letter and met with defendant Evans
on August 20, 2010, regarding his many complaints. During that meeting, Evans told
plaintiff that the institution’s staff did nothing wrong in honoring defendant Odom’s request
that plaintiff be placed on incommunicado status pending an investigation.
Plaintiff asserts the following claims: (1) denial of due process and equal protection
claims under the Fifth and Fourteenth Amendments; (2) unlawful seizure or false
imprisonment in violation of the Fourth Amendment; (3) violation of the Eighth And
Fourteenth Amendments regarding the conditions of confinement he endured; (4)
intentional infliction of emotional damage contrary to W isconsin law; (5) retaliation contrary
to the First Amendment; (6) denial of due process and equal protections under the Fifth and

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Fourteenth Amendments for false arrest and malicious prosecution; (7) Sixth and
Fourteenth Amendment violations for failure to provide an administrative remedy for his
grievances; and (8) “outlawry,” respecting the conspiracy with Odom as the sole ringleader
and the remaining defendants who implemented a non-existent court order. As a result,
plaintiff requests injunctive relief, compensatory and punitive damages, as well as payment
for future healthcare and mental health care.
DISCUSSION
As a pretrial detainee, the Due Process Clause of the Fourteenth Amendment
governs plaintiff’s claims. Grieveson v. Anderson, 538 F.3d 763, 771-72 (7th Cir. 2008).
Because pretrial detainees have not received a formal adjudication of the charges against
them, they are beyond the power of the state to punish. Bell v. Wolfish, 441 U.S. 520, 523
(1979). Also, only a defendant who is personally responsible for depriving the plaintiff of a
constitutional right may be held liable under § 1983. Grieveson, 538 F.3d at 778. Thus, the
court evaluates plaintiff’s claims by discussing the actions of each defendant and construing
the complaint liberally.
A.

Dax C. Odom, Assistant District Attorney
Defendant Odom asked to have plaintiff put on “11 status” without a court order,

failed to prepare a proposed order to produce plaintiff for his April 22, 2010, bail hearing and
attempted to get the judge to sign and backdate an order authorizing “11 status” to the day
Odom called the jail. Plaintiff filed a complaint against Odom with W isconsin’s Office of
Lawyer Regulation (OLR), but OLR concluded that there was not a sufficient basis to
proceed.

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W here a prosecutor acts in a quasi-judicial capacity, he is entitled to absolute
immunity for damages. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). However, when the
prosecutor’s conduct is administrative or investigatory, he is entitled only to qualified
immunity. Id. It is possible that some of Odom’s actions with regard to plaintiff were
administrative or investigatory. Thus, it is appropriate to apply prosecutorial immunity to
Odom at this stage of the litigation.

Therefore, plaintiff may proceed on Fourteenth

Amendment claims against Odom regarding his request to have plaintiff placed on “11
status” without a hearing on April 1, 2010, and his actions (or inaction) that resulted in
plaintiff not being present at the bail hearing on April 22, 2010.
B.

Mary Cook, Lieutenant
According to the complaint, defendant Cook facilitated plaintiff’s transfer to the

segregation unit on April 1, 2010, in compliance with Odom’s request. Moreover, she told
the plaintiff on April 6, 2010, that she had not received paperwork from the court regarding
his status and that the assistant district attorney (Odom) only had seventy-two hours to get
the paperwork after making a request.
Based on these allegations, plaintiff may proceed on a Fourteenth Amendment claim
against Cook regarding her placement of plaintiff in segregation without a court order or due
process and her failure to remove him from segregation after a grace period to secure a
court order had expired.
C.

David A. Clarke, Jr., Sheriff
The complaint contains no allegations of personal involvement by defendant Clarke.

See Grieveson, 538 F.3d at 778. Consequently, it fails to set forth any basis to proceed
against defendant Clarke.

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D.

Nancy Evans, Major
Plaintiff contends that he sent defendant Evans a letter of complaint on April 19,

2010, after his initial release from segregation. After receipt of the letter, there was nothing
Evans could do to impact any constitutional violation plaintiff had suffered while in
segregation. Moreover, there are no contentions that she was personally involved in any
matters affecting plaintiff’s rights. See id. Hence, there is nothing in the complaint which
provides a basis to proceed against Evans.
E.

Darlene Jones-Graham, Captain
It is asserted that defendant Jones-Graham denied plaintiff a visit from his mother

on April 3, 2010, and stated that he would get a make-up visit. In addition, the complaint
charges that Jones-Graham told plaintiff that his paperwork was lost, but retracted it on April
7, 2010, and said the paperwork had not arrived. Jones-Graham is said to have authored
a memo to plaintiff dated May 24, 2010, advising that employees of the Sheriff’s Office
acted in “good faith” when they placed plaintiff in segregation on April 1 and held him there
with no court order. Viewing these assertions in a light favorable to the plaintiff do not
suggest that Jones-Graham violated plaintiff’s constitutional rights, and as such do not
entitle him to proceed against this defendant.
F.

W illiam Dukert, Captain
Plaintiff spoke to defendant Dukert after his release from segregation on April 9, and

his bail hearing on April 22 regarding general guidelines for “11 status.” Like plaintiff’s
communication with Evans on April 19, this discussion with Dukert followed plaintiff’s
release from segregation. Moreover, the com plaint does not indicate that Dukert was

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personally involved with plaintiff in any matter that could be construed as a constitutional
deprivation that plaintiff may pursue in this action. See Grieveson, 538 F.3d at 778.
G.

Gregory Bacon, Lieutenant
Next, the complaint asserts that defendant Bacon approved a citation against plaintiff

for four rule violations stemming from plaintiff’s April 22 mental breakdown. The allegations
suggest that approval of the citation was in retaliation for earlier grievances plaintiff filed
against Bacon’s coworkers. However, Bacon’s involvement in the rules violation report is
not described. Moreover, the complaint does not indicate that Bacon was the officer who
prepared or signed the report. Further, the complaint does not assert that he was the
hearing officer who sustained the violations and sanctioned plaintiff by imposing disciplinary
confinement.
Nevertheless, a prisoner’s retaliation claim is subject to a liberal notice pleading
standard. To comply with 1915A, as with Fed. R. Civ. P. 12(b)(6), the complaint need
specify the bare minimum facts necessary to notify defendant and the court of the nature
of the claims. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). In cases involving
retaliation claims, the “bare minimum” requires the assertion of facts that would apprise
defendant of what plaintiff did to provoke the alleged retaliation and what defendant did in
response. Id. at 439; Walker v. Thompson, 288 F.3d 1005, 1012 (7th Cir. 2002) (“a plaintiff
alleging retaliation must reference, at a minimum , the suit or grievance spawning the
retaliation and the acts constituting the retaliatory conduct”). In this case, plaintiff will be
allowed to proceed on a First Amendment claim against Bacon that whatever he did in
relation to the rules violation report was in retaliation for the numerous grievances plaintiff
filed between April 9 and April 20. However, to the extent that plaintiff challenges the

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process he received, i.e., the hearing by intercom, he has not named any defendants who
may have been involved personally. See Grieveson, 538 F.3d at 778.
H.

Additional Matters
The remainder of plaintiff’s claims will be dismissed
First, the complaint indicated that plaintiff also wanted to proceed against each

defendant in his or her official capacity. “A municipality may be liable for harm to persons
incarcerated under its authority if it maintains a policy that sanctions the maintenance of
prison conditions and infringes the constitutional rights of the prisoners. Municipal liability
under § 1983 is appropriate only when the policy in question is the direct cause or moving
force behind a constitutional violation.” Hunter v. Amin, 583 F.3d 486 (7th Cir. 2009)
(internal citations and quotations omitted).
Here, the complaint reveals that there is no custom or policy that authorized plaintiff’s
transfer to “11 status” without a court order. The allegations are that defendant Odom made
the decision that led to plaintiff’s “11 status.” No custom or practice of Milwaukee County
or some other governmental body is described.
If the conditions of plaintiff’s confinement in the segregation unit of the Milwaukee
County Jail constituted punishment, the decision to place him in segregation may have
violated plaintiff’s due process rights, as discussed above.

However, the conditions

described by plaintiff were not “sufficiently serious” that the acts or omissions of prison
officials giving rise to those conditions deprived him of a “minimal civilized measure of life’s
necessities.” Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 664-65 (7th
Cir. 2012). Therefore, plaintiff may not proceed on a claim regarding his conditions of
confinement in the segregation unit.

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The Fourth Amendment’s prohibition of unreasonable seizures does not apply to the
transfer of a pretrial detainee from general population to the segregation unit.
Consequently, allegations regarding plaintiff’s removal from the jail’s general population to
segregation are not actionable under the Fourth Amendment
Additionally, the Court of Appeals for the Seventh Circuit has made it clear that
malicious prosecution is not a constitutional tort unless the state does not provide any
remedy for malicious prosecution, Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir. 2001)
(“the existence of a tort claim under state law knocks out any constitutional theory of
malicious prosecution”), and the State of W isconsin recognizes the tort of malicious
prosecution. See Strid v. Converse, 111 W is.2d 418, 331 N.W .2d 350 (Ct.App.1994).
Thus, plaintiff may not proceed on a malicious prosecution claim.
Plaintiff has failed to state a state law claim for intentional infliction of emotional
damage. A claim for intentional infliction of emotional distress is stated by pleading (1)
defendant intended to cause plaintiff emotional distress by his conduct; (2) the conduct was
extreme and outrageous; (3) the conduct was a cause-in-fact of plaintiff’s emotional
distress; and (4) plaintiff suffered an extreme disabling response to the defendant’s conduct.
Anderson v. Continental Ins. Co., 85 W is.2d 675, 694-95 (1978). The actions described in
the pending complaint are not extreme or outrageous behavior and therefore, are not
actionable.
Finally, the complaint seeks to proceed on a claim of outlawry. However, there is no
such thing as “outlawry.” It appears that relevant assertions are an attempt to bring a
conspiracy claim.

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In Twombly, the Supreme Court affirmed the dismissal of a complaint alleging
“certain parallel conduct . . . absent some factual context suggesting agreement, as distinct
from identical, independent action.” 550 U.S. at 548. The Court stated that “an allegation
of parallel conduct and a bare assertion of conspiracy will not suffice.”

Id. at 556.

Subsequently, the Seventh Circuit confirmed that a claim should be dismissed when a
complaint “is bereft of any suggestion, beyond a bare conclusion, that the . . . defendants
were leagued in a conspiracy.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). All
that plaintiff has is his conclusion.
PLAINTIFF’S MOTIONS
Prior to receipt of the amended complaint, the court received plaintiff’s letter
containing several requests that were docketed as motions. First, plaintiff asks whether he
needs to submit additional exhibits at this time or whether the need for exhibits occurs
during the discovery process. He also asks if he will need to submit another affidavit
alleging these violations and raises questions about the content of his amended complaint.
However, the amended complaint speaks for itself and has been screened. He may have
to provide defendants with documents in response to discovery or file an affidavit with
evidence in opposition to a motion for summary judgment, but plaintiff need not serve
defendants with exhibits or affidavits at this time.
Second, plaintiff asks the court to return his voluminous exhibits, citing his in forma
pauperis status. Plaintiff will not have to provide a copy of the exhibits for each defendant
in discovery and the court will not return to plaintiff all of the documents he submitted.
However, if the need arises, the court will return to plaintiff one set of the exhibits.

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Third, plaintiff asks the court to appoint counsel.

Civil litigants do not have a

constitutional or statutory right to appointed counsel, but the court has 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, 129 F.3d
933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995)).
Plaintiff has satisfied the threshold matter of showing he made a reasonable attempt to
secure private counsel on his own. See Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288.
Thus, the court must consider whether he appears competent to litigate his case and, if not,
whether the presence of counsel would 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)). If
anything, plaintiff has provided the court with too much information regarding his claims
against defendants. Although he was directed to amend his complaint and the amended
complaint still has too much detail, plaintiff has conveyed his claims to the court
competently.
Fourth, plaintiff asked for an extension of time to submit his amended complaint, but
he filed his amended complaint before the deadline. Therefore,
IT IS ORDERED that plaintiff’s motion for clarification (Doc. 10) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s request that the court return the exhibits
plaintiff submitted with the copies of his original complaint (Doc. 10) is GRANTED in part
and DENIED in part.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Doc. 10) is
DENIED W ITHOUT PREJUDICE.

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IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to file
amended complaint (Doc. 10) is DENIED as moot.
IT IS FURTHER ORDERED that the following defendants are DISMISSED as parties
to this action: David A. Clarke, Jr., Nancy Evans, Darlene Jones-Graham, and W illiam
Dukert.
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: Dax C. Odom, Mary Cook, and Gregory Bacon. 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 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 Odom, Cook, and Bacon shall file a
responsive pleading to the complaint.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and
legal material to:
Honorable C. N. Clevert, Jr.
% Office of the Clerk
United States District Court
Eastern District of W isconsin
362 United States Courthouse
517 E. W isconsin Avenue
Milwaukee, W isconsin 53202

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is notified that from now on, he is required under Federal Rule of Civil
Procedure 5(a) to send a copy of every paper or docum ent filed with the court to the
opposing party or, if the opposing party is represented by counsel, to counsel for that party.
Fed. R. Civ. P. 5(b). Plaintiff should also retain a personal copy of each document. If the
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 the opposing party or that
party’s attorney, if the party is represented by an attorney.
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, W isconsin, this 12th day of September, 2012.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge

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