Lucas v. Milwaukee County Jail

Filing 12

ORDER signed by Chief Judge Pamela Pepper on 1/6/2021. Defendants to file responsive pleading to amended complaint within 60 days. Parties may not begin discovery until after the court issues scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel and mailed to Georvaughn Lucas-with copy of "Answers to Prisoner Litigants' Common Questions")(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GEORVAUGHN M. LUCAS
Plaintiff,
v.

Case No. 19-cv-1779-pp

C.O. BARTLES, C.O. DAVIS,
C.O. COOPER, JANE DOE,
C.O. SANDERS, and LT. MILICACCA,
Defendants.
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 11)
Plaintiff Georvaughn M. Lucas, representing himself, filed a complaint
alleging that the Milwaukee County Jail violated his civil rights under 42
U.S.C. §1983. Dkt. No. 1. On October 27, 2020, the court screened the
complaint and determined that the plaintiff had sued the wrong defendant.
Dkt. No. 10 at 4. The court gave the plaintiff an opportunity to file an amended
complaint by the end of the day November 27, 2020, to name the individual jail
staff who refused to give him a change of clothes. Id. The court received the
amended complaint on November 30, 2020. Dkt. No. 11. This order screens the
amended complaint.
I.

Screening the Amended Complaint
A.

Federal Screening Standard

Under the Prison Litigation Reform Act (PLRA), the court must screen
complaints brought by prisoners seeking relief from a governmental entity or
1

Case 2:19-cv-01779-PP Filed 01/06/21 Page 1 of 7 Document 12

officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court
must dismiss a complaint if the prisoner raises 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).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,
668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts,
accepted as true, to “state a claim for relief 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 the
plaintiff pleads factual content that allows a 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 someone deprived him of a right secured by the Constitution or the laws of
the United States, and that whoever deprived him of this right was acting
under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793,
2

Case 2:19-cv-01779-PP Filed 01/06/21 Page 2 of 7 Document 12

798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints to a less
stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720
(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
B.

Allegations in the Complaint

The plaintiff alleges that on August 22, August 24, August 29, and
August 31, 2018, while he was a pretrial detainee at the Milwaukee County
Jail, defendants C.O. Bartels and C.O Davis “refused [him] a clean change of
clothing [or] threw out [his] unit laundry.” Dkt. No. 11 at 2-3. The plaintiff
states the defendants refused him a change of clothes on those days because
they either did not have his size or because he could wait “until next time” Id.
at 2.
The plaintiff alleges that when he told defendants C.O. Cooper, C.O.
Sanders and a Jane Doe defendant he identifies as “Ms. B.” about the incident
and referenced that he was getting a rash, they claimed that the laundry was
closed or that they could not find any clothing. Id.
The plaintiff alleges that defendant Lt. Milicacca did not “go by any
proper grounds of investigation,” “refused” the plaintiff’s complaints,
“considered them resolved” and “took no effort to respond” to them, even
though they should have been taken care of in fourteen days. Id. at 3. The
plaintiff says that he submitted his complaints on grievance forms on August
3

Case 2:19-cv-01779-PP Filed 01/06/21 Page 3 of 7 Document 12

30, 2018 at 7:50 p.m. “and have copies of complaints threw out.” Id.
The plaintiff states he suffered humiliation and “pain and itching in my
lower region, including a rash.” Id. He asks for monetary damages and for “the
jail [to be] reviewed for all law violations that are done under the table.” Id. at
4.
C.

Analysis

The plaintiff claims that the defendants violated his constitutional
rights when he was denied clean clothing. Because the plaintiff was a pretrial
detainee at the time, the court assesses his claims under the Fourteenth
Amendment. Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019).
Conditions of confinement, such as having to remain in soiled clothes for
several days, can violate the Fourteenth Amendment if they are “objectively
unreasonable and ‘excessive in relation to’ any legitimate non-punitive
purpose.” Id. at 824 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-97
(2015)). Courts must consider “the severity and duration” of the conditions a
plaintiff experiences to determine a constitutional violation. Id.
At this stage, the plaintiff may proceed on a conditions of confinement
claim against C.O. Bartels, C.O. Davis, C.O. Cooper, C.O. Sanders and Jane
Doe “Ms. B.” He alleges that they refused him clean clothes several times over
a ten-day period, resulting in a painful and itchy rash near his groin. Dkt. No.
11 at 2-3. Once the court issues a scheduling order, the plaintiff will have the
opportunity to ask the lawyers for the named defendants for information
4

Case 2:19-cv-01779-PP Filed 01/06/21 Page 4 of 7 Document 12

about the identity of “Ms. B.”
The plaintiff also may proceed on a claim against defendant Lt.
Milicacca. Lt. Milicacca allegedly handled the plaintiff’s grievances about the
lack of clean clothing. Dkt. No. 11 at 3. While simply denying grievances is not
enough to state a constitutional violation, see Owens v. Hinsley, 635 F.3d
950, 953 (7th Cir. 2011) (citing George v. Smith, 507, F.3d 605, 609 (7th Cir.
2007)), a complaint examiner violates the Constitution when he handles
complaints or grievances with deliberate indifference, such as destroying a
grievance without reading it. See Burks v. Raemisch, 555 F.3d 592 (7th Cir.
2009). The plaintiff alleges that Lt. Milicacca did not investigate, refused the
complaints and did not respond. That amounts to an allegation that Milicacca
was not doing his job, leaving the plaintiff “to face risks that could be averted
by faithful implementation of the grievance machinery.” Id. at 595.
II.

Conclusion
Under an informal service agreement between Milwaukee County and

this court, a copy of the amended complaint and this order have been
electronically transmitted to Milwaukee County for service on defendants
Bartels, Davis, Cooper, Sanders and Milicacca. The court ORDERS those
defendants to file a responsive pleading to the amended complaint within 60
days.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for completing discovery
5

Case 2:19-cv-01779-PP Filed 01/06/21 Page 5 of 7 Document 12

and filing dispositive motions. After the court enters a scheduling order, the
plaintiff may make discovery requests (written questions or requests for
documents) on the named defendants to identify the real name of Jane Doe
“Ms. B.” Once he knows the real name of “Ms. B,” he should file a motion
identifying “Ms. B” and asking the court to replace the Jane Doe placeholder
with “Ms. B’s” real name. Again, the plaintiff should not serve any discovery
requests upon the named defendants until after the court issues the
scheduling order.
The court ORDERS that plaintiffs who are inmates at Prisoner E-Filing
Program institutions1 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs
who are inmates at all other prison facilities must submit the original
document for each filing to the court to the following address:
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 JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises the plaintiff that if he fails to file documents or take

The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional
Institution, and Oshkosh Correctional Institution.
1

6

Case 2:19-cv-01779-PP Filed 01/06/21 Page 6 of 7 Document 12

other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. The parties must notify the
clerk of court of any change of address. The court advises the plaintiff that it is
his responsibility to promptly notify the court if he moves or changes his
address. The plaintiff’s failure to keep the court advised of his address may
result in the court dismissing this case without further notice.
The court will include a guide prepared by court staff to address common
questions that arise in cases filed by prisoners. Entitled “Answers to Prisoner
Litigants’ Common Questions,” this guide contains information that the
plaintiff may find useful in prosecuting his case.
Dated in Milwaukee, Wisconsin this 6th day of January, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

7

Case 2:19-cv-01779-PP Filed 01/06/21 Page 7 of 7 Document 12