Miller v. Nickaebich et al

Filing 212

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 1/20/2017 denying 190 Motion in Limine; granting 194 Motion in Limine. IT IS FURTHER ORDERED that the hearing scheduled for January 20, 2017 at 10:30 a.m. is REMOVED from calendar. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICKEY MILLER,
Plaintiff,
v.

Case No. 14-CV-1603

MICHAEL NINKOVIC, et al.,
Defendants.
DECISION AND ORDER GRANTING DEFENDANTS’
REQUEST FOR JURY INSTRUCTION 7.15 REGARDING THE
APPLICATION OF THE EIGHTH AMENDMENT
This alleged excessive force case is scheduled for trial for January 23, 2017. Before
me is the question of whether the Eight Amendment or the Fourteenth Amendment applies
to the claim. On January 3, 2017, defendants filed a motion in limine arguing that the Eighth
Amendment applies to plaintiff Mickey Miller’s excessive force claim because he was a
convicted prisoner at the time of the alleged incident. Miller disagreed, arguing that the
Fourteenth Amendment applies to his claim because, although he was a convicted prisoner
at the time, he was at the Milwaukee County Jail solely in connection with a pending
criminal case, which means he should have been considered a pretrial detainee.
On January 12, 2017, I asked the parties to submit supplemental briefs clarifying the
revocation of Miller’s extended supervision in connection with a 2003 felony conviction and
to identify any cases that had addressed Miller’s “dual status” argument since the Supreme
Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). The parties did so on
January 18, 2017.

Defendants clarified that Miller had been granted extended supervision for the 2003
felony conviction case on December 25, 2012. However, based on a March 1, 2013 incident
which also resulted in new charges, Miller faced revocation of his extended supervision. On
October 23, 2013, Miller waived his right to contest the revocation. As a result, an Order of
Revocation was signed on October 24, 2013 and amended on October 25, 2013. On January
28, 2014, the duration of Miller’s confinement was set at two years. Additionally, Miller
was convicted in connection with the March 1, 2013 incident and was sentenced to two
consecutive five-month sentences beginning on August 26, 2013. Defendants therefore
argue that Miller’s revoked status made him a convicted prisoner at the time he was at the
Milwaukee County Jail on December 5, 2013 and the Eight Amendment applies to his
excessive force claim.
Miller does not contest that he was a prisoner on December 5, 2013 based upon his
revocation status. However, he argues that because he was at the Milwaukee County Jail to
attend a hearing on a pending case, while there, he was a pretrial detainee. Accordingly, he
argues the Fourteenth Amendment applies. He further explains that the Jail “primarily”
houses pretrial detainees, while the Milwaukee House of Corrections and Wisconsin Prison
System house individuals who are serving sentences after being convicted of a crime. As
such, he states that, to promote officer and inmate safety, a consistent standard should be
applied to all of the inmates at the Jail, regardless of what their status may actually be.
After reviewing the clarified chronology of the revocation of Miller’s extended
supervision, there is no doubt that Miller was a convicted prisoner as of December 5, 2013.
Miller concedes as much. And the law is clear that the Eighth Amendment applies to claims
of excessive force made by convicted prisoners. See Kinney v. Indiana Youth Center, 950 F.2d
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462, 465 (7th Cir. 1991). The question is thus whether the fact that Miller was at Milwaukee
County Jail for a case he had not been convicted of change this. While Miller’s argument
that a uniform pretrial detainee standard should apply at the jail has its appeal, it would in
essence create a dual status for Miller and similarly situated persons. Miller has cited to no
cases and I have found none supporting such a position. As defendants point out, Miller did
not lose his status as a convicted prisoner merely because he was transferred to a different
location, nor does he get enhanced constitutional rights simply because he is alleged to have
committed additional crimes for which he had not yet been tried. See Joost v. Cornell
Corrections Inc., Case No. 97-512T, 1998 WL 939531, at *2 (D.R.I. Dec. 11, 1998) (holding
that plaintiff’s “dual status” argument was not persuasive: the “fact that for a portion of the
time that he was incarcerated at Wyatt he was awaiting retrial on the firearm charge does
not obviate the fact that he was also imprisoned as a convicted felon.”). Accordingly, I will
grant defendants’ motion in limine requesting that I instruct the jury to apply the Eight
Amendment standard to Miller’s excessive force claim.
FOR THE REASONS STATED, IT IS ORDERED that plaintiff’s motion for the
application of the Fourteenth Amendment (Docket # 190) is DENIED, and defendants’
motion for the application of the Eighth Amendment (Docket # 194) is GRANTED.
IT IS FURTHER ORDERED that the hearing scheduled for January 20, 2017 at
10:30 a.m. is REMOVED from the calendar.

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Dated at Milwaukee, Wisconsin this 20th day of January, 2017.
BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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