Louis v. Milwaukee County Jail et al

Filing 13

ORDER signed by Judge Pamela Pepper on 7/18/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Milwaukee County Jail, CJF Med Clinic, Nurse Kirk DISMISSED. Defendant Toliver to file respons ive pleading within 60 days. Agency having custody of prisoner to collect $339 balance of filing fee from plaintiff's prison trust account in accordance with 28 USC §1915(b)(2). Parties may not begin to conduct discovery until after the court enters a scheduling order. Case to be returned to Judge Duffin. (cc: all counsel, via mail to Monchello Louis and Warden at Milwaukee Secure Detention Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MONCHELLO CORNELL LOUIS,

Case No. 17-cv-113-WED-PP

Plaintiff,
v.
MILWAUKEE COUNTY JAIL, et al.,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED WITHOUT
PREPAYING THE FILING FEE (DKT. NO. 2) AND SCREENING COMPLAINT
Plaintiff Monchello Cornell Louis, who is confined at the Milwaukee
County Jail, is representing himself. He filed a complaint alleging that the
defendants violated his constitutional rights. The plaintiff filed a petition to
proceed without prepayment of the filing fee under 28 U.S.C. §1915(b), dkt. no.
2. The court also must screen the plaintiff’s complaint. 28 U.S.C. §1915A.
The plaintiff has paid an initial partial filing fee of $11.00. See 28 U.S.C.
§ 1915(b)(1). The court will grant his motion to proceed without prepayment of
the filing fee, and direct collection of the rest of the filing fee, as explained at
the end of this order.
The case currently is assigned to Magistrate Judge Duffin. The
defendants, however, have not had the opportunity to consent to the
magistrate judge presiding over the case. For this reason, the clerk’s office has
referred the case to United States District Judge Pamela Pepper for the limited

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purpose of screening the complaint. The clerk’s office will return the case to
Magistrate Judge Duffin after entry of this order.
Standard of Review for Screening Complaint
The Prison Litigation Reform Act requires courts 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). The court must
dismiss a complaint, or part of the complaint, 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 must provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The plaintiff need not 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)). A complaint that offers mere “labels and conclusions,” however, 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

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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).
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, 556 U.S. at 679. The party must support legal conclusions by
factual allegations. Id. Second, if there are well-pleaded factual allegations, the
court must “assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Id.
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)).

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The Allegations in the Complaint
During the time of the events the plaintiff describes in the complaint, he
was confined at the Milwaukee County Jail. He is suing Deputy Toliver, Nurse
Kirk, the Milwaukee County Jail, and the CJF Med Clinic.
The plaintiff alleges that on November 29, 2016, Deputy Toliver
intentionally and maliciously slammed a cell door onto his foot, which caused
his skin to break and “bleed profusely.” Dkt. No. 1 at 2. Nurse Kirk was
passing by the plaintiff’s cell at the time of the incident. The plaintiff and other
inmates requested that she come to his cell. She did, and when she started to
attempt to clean the blood from the plaintiff’s foot, he told her that he “can do
that part.” Id. at 3. Nurse Kirk then told the plaintiff that the jail’s “Med Clinic”
would call him. Nine hours later, Lieutenant Haw (not a defendant) came to the
unit and requested that the plaintiff be seen immediately. The plaintiff was
seen immediately. A nurse at the Med Clinic treated the plaintiff’s injury with
antibiotic ointment, wrapped it, and prescribed him Ibuprofen for five days.
This helped the plaintiff “minimally,” because he still had pain due to a preexisting ankle sprain “and now a big toe injury.” Id.
The plaintiff asks for monetary damages from the Milwaukee County Jail,
Deputy Toliver, and the Medical Clinic. He also asks that jail staff be trained on
proper protocol when dealing with these sorts of situations and that Deputy
Toliver be fired immediately.

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Discussion
The court concludes that the plaintiff has alleged sufficient facts to allow
him to proceed on an excessive force claim against Deputy Toliver, based on his
allegations that she intentionally slammed the cell door onto his foot, causing
injury. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015); see also
Davis v. Wessel, 792 F.3d 793, 801 (7th Cir. 2015).
The court will not, however, allow the plaintiff to proceed on a claim
against Nurse Kirk. It appears that the plaintiff is suing Nurse Kirk because
there was a nine-hour delay between when she saw him and when he was seen
in the Med Clinic. The plaintiff doesn’t allege, however, that Nurse Kirk was
responsible for the delay. Rather, he alleges that she came to his cell after the
incident, tried to clean his wound, and said that someone from the Med Clinic
would call him. There is no indication that Nurse Kirk had anything to do with
the delay between the time she saw the plaintiff and the time he was seen in
the Med Clinic.
Nor will the court allow the plaintiff to proceed against the Milwaukee
County Jail or the jail’s Med Clinic, because they are not suable entities under
42 U.S.C. §1983. See, e.g., Powell v. Cook County Jail, 814 F. Supp. 757, 758
(N.D. Ill. 1993). To the extent that the plaintiff seeks to hold Milwaukee County
responsible for his injury, he cannot; he has not alleged that Deputy Toliver
acted under an official policy or custom, or that anyone with policy-making
authority was responsible for his injury. See Monell v. Dep’t of Soc. Servs. of
New York, 436 U.S. 658, 690-91 (1978).

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Conclusion
The court ORDERS that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee is GRANTED. Dkt. No. 2.
The court ORDERS that defendants Milwaukee County Jail, CJF Med
Clinic, and Nurse Kirk are DISMISSED.
The court ORDERS that, under the informal service agreement between
Milwaukee County and this court, copies of plaintiff’s complaint and this order
are being electronically sent today to Milwaukee County for service on the
Milwaukee County defendant.
The court also ORDERS that, under the informal service agreement
between Milwaukee County and this court, Deputy Toliver shall file a
responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court ORDERS that the agency having custody of the prisoner shall
collect from his institution trust account the $339.00 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 Court each
time the amount in the account exceeds $10 in accordance with 28 U.S.C.
§1915(b)(2). The agency shall clearly identify the payments by the case name
and number. If the plaintiff is transferred to another institution, county, state,
or federal, the transferring institution shall forward a copy of this order along
with plaintiff’s remaining balance to the receiving institution.

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The court will send this order to the officer in charge of the agency where
the inmate is confined (the Milwaukee County Sheriff). The court will also send
a copy to Dennis Brand at the Milwaukee County Jail.
The court ORDERS that the parties may not begin conducting discovery
until after the court enters a scheduling order setting deadlines for discovery
and dispositive motions.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the case. Because the clerk will electronically
scan and enter on the docket each filing when the clerk receives it, the plaintiff
need not mail copies to the defendants. The defendant will be served
electronically through the court’s electronic case filing system. The plaintiff
should retain a personal copy of each document he files with the court.
The court advises the plaintiff that if he does not timely file his pleadings,
the court may dismiss his case for failure to prosecute. The parties must notify
the Clerk of Court of any change of address. Failure to do so could result in

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orders or other information not being timely delivered, thus affecting the legal
rights of the parties.
Dated in Milwaukee, Wisconsin this 18th day of July, 2017.
BY THE COURT:
____________________________________
HON. PAMELA PEPPER
United States District Judge

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