Sierra-Lopez v. Kozak et al
Filing
14
ORDER signed by Judge Pamela Pepper on 7/17/2018. Defendants Malcolmson, Steffen, Gossage, Brown County Jail DISMISSED. Plaintiff may proceed on deliberate indifference claim against defendants Kozak, Dequaine, Rhode, Pagels, Higgins; plaintiff may p roceed on Monell claims of deliberate indifference and First Amendment violations against Brown County. Clerk of Court to ADD Brown County as defendant. Defendants to file responsive pleading within 60 days. Case to be RETURNED to Judge Duffin for further proceedings. Parties may not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Kevin Sierra-Lopez and Warden at Wisconsin Secure Program Facility)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEVIN SIERRA-LOPEZ,
Plaintiff,
v.
Case No. 17-cv-1222-pp
OFFICER KOZAK, CORPORAL DEQUAINE,
LT RHODE, NURSE PAGELS,
BROWN COUNTY JAIL, JOHN GOSSAGE,
PHIL STEFFEN, CAPTAIN MALCOLMSON,
and CO HIGGINS,
Defendants.
______________________________________________________________________________
ORDER SCREENING PLAINTIFF’S AMENDED COMPLAINT (DKT. NO. 13)
______________________________________________________________________________
Plaintiff Kevin Sierra-Lopez, who is representing himself, is an inmate
incarcerated at the Wisconsin Secure Program Facility. He filed a complaint
alleging that while he was a state prisoner housed at the Brown County Jail,
his constitutional rights were violated. Dkt. No. 1. This case is assigned to
Magistrate Judge William Duffin. On February 28, 2018, Judge Duffin
screened the plaintiff’s complaint and found that he had stated an Eighth
Amendment claim of deliberate indifference to his serious medical needs
against defendants Officer Kozak, Corporal Dequaine and Lieutenant Rhodes;
Judge Duffin concluded, however, that the plaintiff had not stated claims
against the other named defendants, Dkt. No. 12 at 10. Judge Duffin noted
that the plaintiff had made several claims against the Brown County Jail, but
pointed out that the jail was not a legal entity that could be sued under §1983.
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Id. at 11. He suggested that because the jail was an arm of Brown County,
Brown County might be the more appropriate party. Id. at 12. Judge Duffin
gave the plaintiff an opportunity to amend his complaint to address the issues
Judge Duffin had raised in his order, id., and the court received the plaintiff’s
amended complaint on March 13, 2018, dkt. no. 13.
Although the plaintiff consented to Judge Duffin hearing and deciding
the case, the defendants have not yet had the opportunity to decide whether to
consent because, until now, the court has not screened the amended
complaint, and has not ordered any complaint to be served on the defendants.
Because both parties have not yet consented to the magistrate judge hearing
the case, the clerk’s office has referred it to this court to screen the amended
complaint and decide whether it should be served on any of the defendants.
I. Screening of the Complaint
A. Federal Screening Standard
The Court is required to screen complaints, including amended
complaints, brought by prisoners seeking relief against a governmental entity
or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). To state a
cognizable claim under the federal notice pleading system, a plaintiff is
required to provide a “short and plain statement of the claim showing that [he]
is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). To state a claim, a complaint must
contain sufficient factual matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
2
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
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 the defendant
acting under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. 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 a 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)).
B.
Plaintiff’s Allegations
In the amended complaint, the plaintiff has named the following
defendants: “Sheriff John R. Gossage (Brown County Jail (BCJ)),” Phil Steffen
(“Head Lieutenant at BCJ”), Malcolmson (“Capt. at BCJ”), Officer Kozak,
Corporal Dequaine, Lieutenant Rhode, Nurse Pagels, Officer Higgins, and—
despite Judge Duffin’s instruction—the Brown County Jail. Dkt. No. 13 at 1.
The plaintiff alleges that while he was being housed at Brown County Jail
(Jail) he was kept in “Fox Pod segregation, Day Room FI1 in cell #103 F.” Id. at
¶16. He asserts that prior to his incarceration at the Jail, he had been
diagnosed with “multiple serious personality disorders” and “antisocial
personality disorder.” Id. at ¶1. The plaintiff explains that he has a history of
3
self-harm. Id. He asserts that all the defendants knew about his mental health
diagnosis, and his self-harming history. Id. at ¶¶13-15.
1.
Deficient Medical Care
The plaintiff alleges that on July 29, 2016, at approximately 3:40 p.m.,
he informed officers Kozak and Higgins that he felt suicidal and that he might
engage in self-harm. He states he then used paper to cover the window of his
cell. Id. at ¶18.
The plaintiff asserts that Kozak told Corporal Dequaine of the plaintiff’s
professed intent to commit suicide or self-harm, but that no one called for
medical or psychological help, or put the plaintiff on observation status or a
suicide watch. Id. at ¶20. The plaintiff also alleges that Dequaine told
Lieutenant Rhode about the plaintiff’s self-harm and suicide threats, and that
Rhode likewise took no action. Id. at ¶21. The plaintiff alleges that Dequaine
sent the plaintiff a message, through Kozak, that said, “No matter what you do,
you’re not getting a second shower.” Id. at ¶22. The plaintiff interpreted this
message as “an encouragement to plaintiff to commit, suicide or otherwise self
harm.” Id. at ¶23. He says that Kozak tried to speak to him through the in-cell
intercom, but that the plaintiff did not respond. Id. at ¶24.
The plaintiff alleges that at about 4:10 p.m., Kozak passed out meal
trays; he picked them up some twenty-five minutes later. Id. at ¶25. He says
that Kozak and Nurse Pagels passed out medications at 5:15 p.m., about forty
minutes after Kozak picked up the meal trays. Id. at ¶26.
4
The plaintiff recounts that at about 5:50 p.m., he “tied a state issued
green sock around his arm to stop the blood circulation, so as to better access
a good vein to cut open.” Id. at ¶27. He then took “pieces of metal that [he]
connected to a pencil,” and began to cut his arm. He opened a “long wide gash”
in his right forearm, which bled profusely. Id. A neighboring inmate, hearing
the noises the plaintiff was making, notified the unit staff that the plaintiff was
trying to commit suicide. Id. at ¶28. Kozak responded to the plaintiff’s cell, the
used the emergency call button to notify other staff. Id. at ¶29. Once other
members of the staff had arrived, the plaintiff says, he stood at his cell door,
showed the staff that he had a “hand full of psychotropic pills,” then put the
pills in his mouth and swallowed them “in an attempt to further facilitate his
suicide.” Id. at ¶30. The plaintiff says that the “defendants” then removed him
from his cell and put him in a restraint chair. Id. at ¶31.
Nurse Pagels asked the plaintiff why he cut himself; the plaintiff
responded that did it because “he could not take being confined to a cell 24
hours per day, 7 days per week without dayroom, visits, recreation, phone
calls, religious material (books, song and prayer lists), or services provided; and
having received no meaningful treatment for his mental condition.” Id. at ¶32.
The plaintiff asserts that he also told Pagels he had informed the unit staff that
he was going to harm himself, but that they didn’t try to stop him. Id. at ¶33.
He alleges that Pagels responded “I’ll wipe your wound and place a gauze of
cotton in it. And I’ll come back after I finish med. pass. So for now think about
what you just did.” Id. at ¶34. The plaintiff says that he told Pagels that she
5
could not punish him for being suicidal, and that he needed stitches. He says
Pagels left the area. Id. at ¶35.
The plaintiff was still strapped into the restraint chair at 7:15 p.m., when
the chaplain and pastor (not defendants) were speaking to him. The plaintiff
says that Dequaine told the chaplain and pastor to leave. Id. at ¶36.
Sometime—the plaintiff doesn’t say when—the gauze that Pagels had put on
the cut got stuck to his skin with dried blood; he says that when Pagels “ripped
the gauze out of the wound it began to bleed again.” Id. at ¶37. The plaintiff
states that Pagels sprayed the wound with “something” and applied cream. Id.
at ¶38. The plaintiff again told Pagels that he needed stitches, that what she
was doing was wrong, and that it was causing him more pain. The plaintiff
alleges that Pagels responded she would not apply stitches and that the
plaintiff “should not have cut [himself] to begin with.” Id. The plaintiff states he
told Pagels that he did not want the bandage or the gauze; Pagels responded by
grabbing his arm, at which point he told her not to touch him and to leave him
alone. Id. at ¶39.
The plaintiff asserts that Lieutenant Trinker (not a defendant) took two
pictures of the wound, id. at ¶40, and that at about 11:30 p.m., the plaintiff
was placed on twenty-four hour observation, id. at ¶41. Going forward,
Registered Nurse Emily Blozinsky (not a defendant) cleaned and treated the
plaintiff’s wound almost daily. Id. at ¶42. He states that when he told Blozinsky
“the gauze got stuck in the wound and why the wound continued to bleed,”
Blozinsky responded, “Nurse Pagel should have never put gauze in an open
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wound, [b]ecause it’ll dry and the gauze will be stuck in the wound by the dried
blood.” Id. at ¶42.
The plaintiff alleges that if Kozak, Rhode, Higgins and Dequaine notified
medical or psychological personnel about his threats of self-harm on July 29,
2016, he would have been put on suicide watch, and wouldn’t have been been
able to hurt himself. Id. at ¶55. He also alleges that because of defendant
Sheriff John R. Gossage’s failure to properly train his staff at the Jail, a
“widespread, well-settled practice and custom that allowed [staff on the
restrictive housing unit] to turn a blind eye and ignore detainee’s and
prisoner’s threat of self-harm” developed. Id. at ¶59.
2.
Conditions of Confinement
The plaintiff claims that while confined in “indefinite longterm [sic]
solitary confinement” at the Jail, he was subjected to the following conditions
of confinement: denied access to religious materials and services, visitation or
calls with family and friends, bedding (sheets/pillows), clocks, dental care
products, hair products (i.e., shampoo, conditioner, hair gel), grooming
supplies (i.e. razors, nail clippers, wash cloths), canteen/commissary, indigent
haircuts, sunlight or outside air, photographs, reading materials, and
electronics (i.e. radio, television). Id. at ¶¶44, 48. He says that these conditions
were caused by policies, rules and practices implemented by Gossage, Steffen
and Malcolmson. Id. at ¶42. He also alleges that he was subjected to twentyfour-hour cell illumination while in the segregation unit and that the cells were
cold, filthy, and unsanitary. Id. at ¶48.
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The plaintiff asserts that on July 29, 2016, he filed a grievance regarding
his lack of access to religious materials. Id. at ¶44. In the grievance, he alleged
that he had spoken with the chaplain, who informed him that she had written
several request slips for the plaintiff and sent him two books and songs about
God. The plaintiff says he asserted that he did not receive the request slips or
any of the materials, and he believed that the deprivation was retaliation in
violation of his right to practice his religion. Id.
The plaintiff asserts that the grievance findings report stated
The chaplain verified that she sent materials for you.
She also stated that it has been a regular occurrence
for items she sends down to either be sent back to her
or for inmates to tell her they’ve never received them.
Your grievance is founded, on the complaint that
religious materials are not delivered to you.
Considering this is an issue [that] has been affecting
inmates other than you and has been going on longer
than you have been here, you[r] claims that this is for
retaliation are substantiated and are deemed
unfounded.
Id. at ¶ 45. The plaintiff states that his complaint was closed. Id.
The plaintiff alleges that the conditions of confinement he describes—
deprivation of religious materials, visitation, bedding, hygiene materials, access
to sunlight and reading materials—were a direct result of defendant Gossage’s
policies and practices, and that defendants Malcomlson, Higgins, Steffan,
Kozak, Dequaine and Rhode applied, implemented and enforced those rules. Id.
at ¶¶46-47, 49. 56-58. He says that it was these conditions of confinement—
harsher than any other restrictive housing unit conditions in the Department
of Corrections, id. at ¶52—that caused him to become depressed and suicidal,
8
feelings that led to the July 29 self-harm incident. Id. at ¶¶53-54. He argues
that Rhode, Higgins, Kozak, Dequaine, Gossage, Steffan and Malcolmson all
were aware of the “common practice[s] and culture” of refusing to give inmates
in the restrictive housing unit religious materials. Id. at ¶58.
The plaintiff seeks injunctive relief and compensatory and punitive
damages.
C.
Analysis
In the amended complaint, the plaintiff alleges the following:
*
That Rhode, Higgins, Dequaine and Kozak were deliberately
indifferent to his serious medical needs when they had knowledge that he
meant to harm himself, but did nothing to stop him, id. at p. 13, ¶3;
*
That Pagels was deliberately indifferent to his serious medical need
when she denied him medical aid—and increased his pain and suffering—
because she thought he needed to be taught a lesson, id. at ¶4;
*
That Higgins, Rhode, Dequaine, Kozak, Steffen, Malcolmson and
Gossage adopted, promulgated and enforced practices and policies that denied
him his First Amendment right to practice his religion, id. at p. 12, ¶1;
*
That Gossage, Steffen and Malcolmson maintained a custom and
practice among the restrictive housing unit staff of depriving inmates of
religious materials “at will and random [without] due process or notice given,”
id. at p. 13, ¶6;
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*
That Rhode, Higgins, Dequaine and Kozak subjected him to
conditions of confinement that violated the Eighth Amendment, by subjecting
him to long-term solitary confinement, id. at p. 13, ¶2; and
*
That Gossage, Steffen and Malcolmson adopted policies and
practices that created atypically harsh conditions of confinement at the Jail, in
violation of the Eighth Amendment, id. at ¶6.
The plaintiff asserts that he sues all of the defendants in their official and
individual capacities. Id. at ¶7.
1.
Deliberate Indifference to Medical Needs Claims
Because the plaintiff was a convicted person at the time he was housed
at the Jail,1 the court analyzes his claims of deliberate indifference to his
serious medical needs under the Eighth Amendment. See Cavalieri v. Shepard,
321 F.3d 616, 620 (7th Cir. 2003); Estate of Cole v. Fromm, 94 F.3d 254, 259
n.1 (7th Cir. 1996). Under the Eighth Amendment's prohibition against cruel
and unusual punishment, prison officials have a duty to “ensure that inmates
receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). A “prison official's ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate” violates that prohibition. Id. at
828. To establish deliberate indifference, the prisoner must show both an
objective and a subjective component; the “objective” component requires the
The Wisconsin Inmate Locator Service, https://appsdoc.wi.gov/lop/detail.do
(last visited July 16, 2018) indicates that at the time of the events the plaintiff
describes, he was designated to the Columbia Correctional Institution; he was
at the Brown County Jail on a temporary basis from July 18, 2016 through
August 12, 2016, for the purpose of attending court.
1
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plaintiff to show that he suffered an objectively serious condition, and the
“subjective” component requires the plaintiff to show that prison officials acted
with a “sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645,
652-53 (7th Cir. 2005) (quoting Farmer, 511 U.S. at 834 and other cases).
As to the objective component: a condition is objectively serious if “the
failure to treat a prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain.” Hayes v. Snyder, 546 F.3d
516, 522 (7th Cir. 2008) (citing Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th
Cir. 1997)). Put another way, a serious medical condition “is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would perceive the need for a doctor’s attention.”
Greeno, 414 F.3d at 653 (citing Foelker v. Outagamie Cty., 394 F.3d 510, 51213 (7th Cir. 2005)).
As to the subjective component: state officials act with deliberate
indifference if they “realize[] that a substantial risk of serious harm to a
prisoner exists, but then disregard[] that risk.” Perez v. Fenoglio, 792 F.3d 768,
776 (7th Cir. 2015) (citing Farmer, 511 U.S. at 837). “The officials must know
of and disregard an excessive risk to inmate health; indeed they must ‘both be
aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists’ and ‘must also draw the inference.’” Greeno, 414 F.3d at
653 (quoting Farmer, 511 U.S. at 837.
The Seventh Circuit has found that suicide satisfies the objective
component of a deliberate indifference claim. See, e.g., Pittman ex rel. Hamilton
11
v. Cty. of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014); Estate of Cole, 94
F.3d at 261 (suicide is a serious harm); Hall v. Ryan, 957 F.2d 402, 406 (7th
Cir. 1992) (recognizing that prisoners have a constitutional right “to be
protected from self-destructive tendencies,” including suicide). The court
concludes, at this early stage, that the injury the plaintiff describes—a long
gash in his forearm that bled and had to be treated daily over multiple days—
also satisfies the objective component. See Cooper v. Casey, 97 F.3d 914, 916–
17 (7th Cir. 1996) (finding that the failure to treat cuts, severe muscular pain,
and a prisoner's burning sensation in his eyes and skin satisfied the first prong
of the Farmer test).
The court finds that, at this early stage, the plaintiff has alleged
sufficient facts to support a claim that Kozak, Dequaine, Higgins and Rhode
were aware that he had said he felt suicidal and felt like harming himself, but
took no action. The plaintiff also has alleged sufficient facts to allow him to
proceed against Pagels on a claim that she failed to adequately treat the
laceration on his arm, and made it worse, because she felt he needed to be
taught a lesson. The plaintiff may proceed with his Eighth Amendment
deliberate indifference claims against Kozak, Dequaine, Higgins, Rhodes and
Pagels.
2.
Failure to Train Claim
The plaintiff doesn’t list it separately in his “causes of action” section of
the amended complaint, but he alleges in the fact section that defendant
Gossage, in his official capacity as Sheriff, failed to train Jail staff, which led to
12
or contributed to their deliberate indifference to the plaintiff’s serious medical
need. The court treats an official capacity claim against the sheriff as a claim
against the county itself—in this case, Brown County. Grieveson v. Anderson,
538 F.3d 763, 771 (7th Cir. 2008). This is because “[g]overnmental entities
cannot be held liable for the unconstitutional acts of their employees unless
those acts were carried out under an official custom or policy.” Id. Even though
Brown County is not a “person,” and even though §1983 prohibits “persons”
acting under color of law from violating a plaintiff’s civil rights, a municipal
entity such as Brown County may be liable for violating §1983 if the allegedly
unconstitutional action involved implementing or executing a policy, regulation
or decision “officially adopted and promulgated by that body’s officers.” Monell
v. Dep’t of Social Serv’s of City of New York, 436 U.S. 658, 690 (1978).
The plaintiff alleges that because of defendant Gossage’s failure to
properly train his staff at the Jail, a “widespread, well-settled practice and
custom that allows [the officers] to turn a blind eye and ignore detainee’s and
prisoner’s threat of self-harm” developed. He alleges this practice and custom
was adopted and promulgated by Gossage and was the direct cause of the
officer’s disregard of his serious medical needs. “The failure to provide adequate
training to its employees may be a basis for imposing liability on a municipality
. . . [if that] failure to train reflects a conscious choice among alternatives that
evinces a deliberate indifference to the rights of the individuals with whom
those employees will interact.” Rice ex rel. v. Correctional Medical Serv’s., 675
F.3d 650, 675 (7th Cir. 2012) (citations omitted). The plaintiff has alleged
13
sufficient facts to allow him to proceed on a failure-to-train Monell claim
against Brown County.
3.
Conditions of Confinement Claim
To state an Eighth Amendment conditions of confinement claim, the
plaintiff must allege that the defendants imposed conditions which denied him
“the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452
U.S. 337, 347 (1981). He must also allege that the defendants acted with a
culpable state of mind, meaning that they knew that the plaintiff “face[d] a
substantial risk of serious harm and disregard(ed) that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847.
The plaintiff provides the court with a long list of conditions in the
restricted housing unit that he claims violated the Eighth Amendment—denial
of visitation, denial of phone privileges, denial of bedding, denial of clocks or
watches, denial of hygiene products, denial of commissary privileges, denial of
razors or nail clippers or haircuts, denial of access to sunlight or outside air,
denial of photos, books and magazines, denial of television/radio, denial of
wash cloths and bath towels, exposure to twenty-four-hour cell illumination,
and exposure to cold, dirty, unsanitary cells. Dkt. No. 13 at 10-11. He says
that these conditions caused him to become depressed, which led to his selfharm. Id. at 11. But nowhere does the plaintiff allege that the defendants—
Rhode, Higgins, Dequaine, Kozak, Gossage, Steffen and Malcolmson—knew
that these conditions posed a serious risk of harm to the plaintiff. The plaintiff
says these defendants knew he had a history of self-harm, but he does not
14
allege that he complained to these defendants about the conditions in the
restrictive housing unit. He does not say that they were aware that the reason
he felt depressed, or self-destructive, was because of these conditions. It
appears that after he cut himself, the plaintiff told Nurse Pagels that the reason
he did it was because he couldn’t face the conditions in segregation. But he
makes no mention of having told anyone else before that point.
The plaintiff has not alleged sufficient facts to show that the defendants
knew that these conditions posed a risk to the plaintiff’s health and
disregarded that knowledge. The court will not allow the plaintiff to proceed on
a conditions-of-confinement claim.
4.
First Amendment Claims
Finally, the plaintiff alleges that various defendants violated his First
Amendment right to practice his religion. Prisoners retain the right to exercise
their religious beliefs, but those rights are not unfettered. See O'Lone v. Estate
of Shabazz, 482 U.S. 342, 348–49 (1987); Turner v. Safley, 482 U.S. 78, 89–91
(1987); Tarpley v. Allen Cty., In., 312 F.3d 895, 898 (7th Cir. 2002). Prison
officials may restrict an inmate’s ability to practice his faith when the
restriction is reasonably related to a legitimate penological interest. See Turner,
482 U.S. at 89. Legitimate penological interests include security and economic
concerns. Al–Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991).
The plaintiff alleges that there was a policy or custom at the Jail of
denying religious materials to inmates in the restricted housing unit. He names
several defendants—Gossage, Steffen, Malcomson, Kozak, Rhode, Higgins and
15
Dequaine—as people who created, implemented or enforced this policy or
custom, and indicates that he is suing them in their official capacities.
The plaintiff has not alleged that any of these defendants, specifically,
denied him his religious materials. If he had, that would have been a “personal
capacity” suit, and he would have had to demonstrate that the particular
individual was personally involved in depriving him of his First Amendment
rights. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citations omitted). The
plaintiff alleges an official capacity claim, which “is, in all respects other than
name, to be treated as a suit against the entity.” Id. Again, in this case the
“entity” is Brown County. At this early stage, the court will allow the plaintiff to
proceed against Brown County on a Monell claim that there was a policy or
practice of denying restrictive housing unit inmates religious materials.
5.
Brown County Jail
The court notes that, despite Judge Duffin telling him that he could not
do so, the plaintiff again has named the Brown County Jail as a defendant in
the amended complaint. As Judge Duffin explained, the Jail is not a person or
a legal entity for purposes of §1983. Louis v. Milwaukee Cty. Jail, No. 17-CV113-WED-PP, 2017 WL 3037567, at *2 (E.D. Wis. July 18, 2017) (citing Powell
v. Cook Cty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993)). The court will dismiss
the Jail as a defendant, and will ask the clerk’s office to add Brown County as
a defendant.
II.
Conclusion
16
The court ORDERS that the Brown County Jail, Sheriff John Gossage,
Phil Steffen and Captain Malcolmson are DISMISSED as defendants.
The court DIRECTS that the clerk’s office ADD Brown County as a
defendant.
The court ORDERS that the plaintiff may proceed on a deliberate
indifference claim against defendants Kozak, Dequaine, Rhode, Pagels and
Higgins. The court ORDERS that the plaintiff may proceed on Monell claims of
deliberate indifference and First Amendment violations against Brown County.
The court ORDERS that under the informal service agreement between
Milwaukee County and this court, copies of the plaintiff’s amended complaint
and this order are being electronically sent to Milwaukee County for service on
Milwaukee County defendants Officer Kozak, Corporal Dequaine, Lieutenant
Rhode, Nurse Pagels and Officer Higgins.
The court ORDERS that, under the informal service agreement between
Milwaukee County and this court, defendants Officer Kozak, Corporal
Dequaine, Lieutenant Rhode, Nurse Pagels and Officer Higgins shall file a
responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court will send a copy of this order to the officer in charge of the
agency where the plaintiff is confined (the Wisconsin Secure Program Facility).
The court DIRECTS that this case be returned to Judge Duffin for
further proceedings.
17
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the Court.2 If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, the court will require him to
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
THE PLAINTIFF MUST NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the case.
The court advises the plaintiff that if he does not file documents or other
information by the deadlines the court sets, the court may dismiss his case for
failure to diligently prosecute it.
The parties must notify the Clerk of Court of any change of address.
The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
2
18
Failure to do so could result in orders or other information not being
timely delivered, which could affect the legal rights of the parties.
Dated in Milwaukee, Wisconsin, this 17th day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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