Holland v. Milwaukee County et al

Filing 11

SCREENING ORDER signed by Judge J.P. Stadtmueller on 11/15/2017. Defendants Milwaukee County, House of Correction, and Nurse Steven DISMISSED from action. Plaintiff PERMITTED to proceed on deliberate indifference claims against Defendants Lt. Mili acca and CO Singh. Copies of Plaintiff's Amended Complaint and this Order to be electronically sent to Milwaukee County for service on such defendants, who shall file a responsive pleading within 60 days. Parties may not begin discovery until a scheduling order is entered. Case to be RETURNED to Magistrate Judge Nancy Joseph for further proceedings. (cc: all counsel, via mail to Tiedrice Holland at Milwaukee County House of Correction)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TIEDRICE HOLLAND,

v.

Plaintiff,

MILWAUKEE COUNTY, HOUSE OF
CORRECTION, LT. MILIACCA,
OFFICER B. SINGH, and
NURSE STEVEN,

Case No. 17-CV-785-NJ-JPS

ORDER

Defendants.
The pro se plaintiff, Tiedrice Holland, is confined at the Milwaukee
County House of Correction. On August 7, 2017, Magistrate Judge Nancy
Joseph screened his civil rights complaint in which he alleged that
defendant Lt. Miliacca made him lay on his back on a metal locker.
Magistrate Judge Joseph determined that the complaint did not state a
claim but directed that if Holland filed an amended complaint providing
more details about his claim, the Court would reevaluate whether he
stated a claim. Holland has filed an amended complaint which the Court
will now screen under 28 U.S.C. § 1915A.
This case is currently assigned to Magistrate Joseph. However,
because not all parties have had the opportunity to consent to magistrate
judge jurisdiction, the case was referred to this Court for the limited
purpose of screening the complaint. The case will be returned to
Magistrate Joseph after entry of this order.
The Court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or employee of a

governmental entity. 28 U.S.C. § 1915A(a). The Court 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. Id. § 1915A(b).
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
complaint need not plead specific facts, and need only provide “fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). “Labels and conclusions” 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).
The factual content of the complaint must allow the Court to “draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Allegations must “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Factual allegations, when accepted as
true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the Court
determines whether the plaintiff’s legal conclusions are supported by
factual allegations. Id. Legal conclusions not supported by facts “are not
entitled to the assumption of truth.” Id. Second, the Court determines
whether the well-pleaded factual allegations “plausibly give rise to an
entitlement to relief.” Id. The Court gives 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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As directed, the plaintiff’s amended complaint provides more
details about the incident. Specifically, he alleges that Lt. Miliacca saw him
sitting in his bunk area on his locker and sarcastically asked him if his
locker was his bed. Lt. Miliacca asked C.O. Singh where he had directed
the plaintiff to be, and Singh replied on the bed. The plaintiff asserts that
this is untrue. Lt. Miliacca asked the plaintiff if he knew the difference
between a bed and a locker, and stated that he needed to learn the
difference. Lt. Miliacca then instructed the plaintiff to lay flat on his
locker, which is about two feet high and three to four feet long, made of
metal and very uncomfortable. The plaintiff followed the direction so that
he would not be taken to segregation. As he laid flat on his back on the
locker, he pulled his back and he also suffered a “slip disk or whatever in
my neck because of laying back on the locker trying to balance my weight
and head from falling and the getting up I almost fell [sic].” (Docket #10 at
3). When the plaintiff could not stand the pain any longer he sat up and
Lt. Miliacca told him to lie down again.
After pulling his back and neck, C.O. Singh would not allow the
nurse to see the plaintiff even though C.O. Singh could see he was in pain.
The pain lasted one week and the plaintiff is still receiving treatment. The
plaintiff eventually saw the nurse.
Based on the plaintiff’s new allegations and construed liberally, the
Court finds that he states a deliberate indifference claim against Lt.
Miliacca for subjecting him to a substantial risk of serious harm by making
him lay on his locker and continue to lay on the locker after he was
injured. See Hope v. Pelzer, 536 U.S. 730, 737-38 (2002). At this stage, the
plaintiff may also proceed on a deliberate indifference claim against C.O.
Singh for taking part in the incident and also for not allowing the plaintiff
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to see the nurse after he was injured. See Arnett v. Webster, 658 F.3d 742,
753 (7th Cir. 2011).
However, the plaintiff does not state a claim against Milwaukee
County because he does not allege that the incident was the result of an
official policy or custom. See Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016). The plaintiff also does not state a claim against the House of
Correction because he may not sue the entity under Section 1983. See
Whiting v. Marathon County Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir. 2004).
Lastly, he may not proceed against Nurse Steven because he does not
allege that Nurse Steven was in any way involved in violating his rights.
See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009); Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
Accordingly,
IT IS ORDERED that defendants Milwaukee County, House of
Correction, and Nurse Steven be and the same are hereby DISMISSED
from this action;
IT IS FURTHER ORDERED that pursuant to the informal service
agreement between Milwaukee County and this court, copies of plaintiff’s
amended complaint and this order are being electronically sent today to
Milwaukee County for service on the Milwaukee County defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this court, the defendants
shall file a responsive pleading to the amended complaint within sixty (60)
days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the court enters a scheduling order setting deadlines
for discovery and dispositive motions; and
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IT IS FURTHER ORDERED that this case be RETURNED to
United States Magistrate Judge Nancy Joseph for further proceedings.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2017.
BY THE COURT:

___________________________
J. P. Stadtmueller
U.S. District Judge

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