Cooper v. Hull et al

Filing 9

SECOND SCREENING ORDER signed by Magistrate Judge William E Duffin on 1/16/18. IT IS THEREFORE ORDERED that, pursuant to the informal service agreement between Milwaukee County and this court, copies of plaintiff's amended complaint and this ord er are being electronically sent today to Milwaukee County for service on the Milwaukee County defendants. IT IS ALSO ORDERED that, pursuant to the informal service agreement between Milwaukee County and this court, the defendants shall file a respon sive pleading to the complaint within sixty 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. (cc: all counsel, Michael Cooper via USPS)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL R. COOPER,
Plaintiff,
v.

Case No. 17-CV-1461

LT. HULL AND
LT. MONTANO,
Defendants.
ORDER
Plaintiff Michael R. Cooper, who is confined at the Milwaukee County Jail, is
representing himself. This matter is before the court to screen Cooper’s amended
complaint.
Standard of Review for Screening Amendment Complaint
The court shall 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 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. 28 U.S.C. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, Copoer 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). Cooper 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)). However, a complaint that offers mere
“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).
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 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. Legal conclusions must be supported by factual allegations. Id. If there are well-

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pleaded factual allegations, the court must, second, “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, Cooper 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 Cooper’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)).
Amended Complaint’s Allegations
Cooper claims that defendants Lieutenant Montano and Lieutenant Hull violated
his rights under the Due Process Clause of the Fourteenth Amendment by failing to
provide adequate procedural safeguards in connection with a disciplinary procedure.
Cooper alleges that on April 25, 2017, Lieutenant Montano placed him in segregation
pending investigation of an altercation with another inmate. Lieutenant Montano
allegedly told Cooper that she was going to review the camera and, if he did not receive
a violation report or hearing within 72 hours, he would be released from segregation.
Cooper alleges that on April 28, 2017, while still in segregation, Lieutenant Hull
stated that he was going to hold Cooper’s disciplinary hearing and asked, “what

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happened.” Cooper responded, “nothing happened if you checked the camera.”
Lieutenant Hull allegedly replied that “he believes his officer.” Hull did not respond
when Cooper asked what he was charged with. Cooper alleges that he told Lieutenant
Hull that he had witnesses, but Hull did not respond.
On April 29, 2017, Cooper found out that he received twelve days discipline
“without any proof, paperwork, or entitlement to call witnesses.” Cooper alleges that he
filed a grievance regarding Lieutenant Hull holding a violation hearing without
providing any paperwork regarding the hearing or violation. Cooper alleges that he did
not receive written notice of the charge or hearing, was not allowed to call witnesses,
did not receive a copy of the hearing officer’s decision, and was not provided with
appeal paperwork.
For relief, Cooper seeks monetary damages. He also requests that each defendant
be demoted in rank, undergo psychological evaluation, and be retrained in
administrative procedure.
Discussion
The court presumes that Cooper is a pretrial detainee because he is confined at
the Milwaukee County Jail. And a pretrial detainee cannot be placed in segregation as a
punishment for a disciplinary infraction without notice and an opportunity to be heard.
Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002). Thus, Cooper may proceed on a

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procedural due process claim based on his allegations that he was placed in segregation
without notice and an opportunity to be heard.
ORDER
IT IS THEREFORE 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 ALSO ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this court, the defendants
shall file a responsive pleading to the complaint within sixty 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.
Dated at Milwaukee, Wisconsin this 16th day of January, 2018.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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