Cotton v. Ball et al

Filing 18

ORDER signed by Chief Judge Pamela Pepper on 3/10/2025. 2 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $347.50 balance of filing fee from plaintiff's pris on trust account under 28 USC §1915(b)(2). Defendant Ball DISMISSED. 7 10 Plaintiff's motions to subpoena discovery DENIED. 16 Plaintiff's motion to appoint counsel DENIED WITHOUT PREJUDICE. (cc: all counsel and mailed to Warden and Michael Cotton at Milwaukee Secure Detention Facility-with "Answers to Prisoner Litigants' Common Questions")(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MICHAEL M. COTTON,
Plaintiff,
v.

Case No. 24-cv-1032-pp

DENITA BALL, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 2), DENYING PLAINTIFF’S
MOTIONS TO SUBPOENA DISCOVERY (DKT. NOS. 7, 10), DENYING
WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL
(DKT. NO. 16) AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
Plaintiff Michael M. Cotton, who is incarcerated at the Milwaukee Secure
Detention Facility and is representing himself, filed a complaint under 42
U.S.C. §1983, alleging that the defendants violated his rights under federal law.
This decision resolves the plaintiff’s motion for leave to proceed without
prepaying the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1. It
also resolves the plaintiff’s motions to subpoena discovery, dkt. nos. 7, 10, and
his motion to appoint counsel, dkt. no. 16.
I.

Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA lets the court allow an incarcerated plaintiff to proceed with his case
without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds
exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1).

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He then must pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
On August 19, 2024, the court ordered the plaintiff to pay an initial
partial filing fee of $2.50. Dkt. No. 6. The court received that fee on November
13, 2024. The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and will require him to pay remainder of the filing fee
over time in the manner explained at the end of this order.
II.

Screening the Complaint
A.

Federal Screening Standard

Under the PLRA, the court must screen complaints brought by
incarcerated persons seeking relief from a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a). The court must
dismiss a complaint if the incarcerated plaintiff 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
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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 Cnty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. County 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.

The Plaintiff’s Allegations

The plaintiff sues Milwaukee County Sheriff Denita Ball, Officer Bailey,
Officer Howard and “other 3rd shift staff on date of 5-21-24.” Dkt. No. 1 at 1.
He states that on May 21 and 22, 2024, between the hours of 7 p.m. and 5
a.m., the Milwaukee County Jail and its booking staff violated his
constitutional rights, particularly his Eighth Amendment right to be free from
cruel and unusual punishment and his Fourteenth Amendment right to equal
protection of the law. Id. at 2.
The plaintiff alleges that on May 21, 2024, he turned himself in at the jail
because he had just obtained his “cdl” (presumably, commercial driver’s
license) and needed to clear his name to get a job. Id. at 2-3. He says he
decided to “come here” because he was nearby and “it avoided the district
wait.” Id. at 3. The plaintiff states that when someone asked him about his
child, he “felt strange and soon regretted it.” Id. As the plaintiff allegedly was
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walked from booking to a cell, he heard an officer yell “I run this[]” and other
officers chanted “the camera down now.” Id. Another officer allegedly said, “we
closed to the public now[]” and then one asked, “ya’ll let them fight like the rest
of them.” Id.
The plaintiff alleges that once he was placed in a cell, it then was filled
with six individuals, and he was again asked about his child. Id. He states that
he responded that he didn’t know what they were talking about, and they made
a comment about jumping him. Id. After another person allegedly entered the
cell with something he didn’t see, “maybe drugs or a weapon,” the plaintiff
asked to go to another cell to use the bathroom; he says that he splashed water
on his face and told defendant Officer Bailey, “OK send them in by the ones[.]”
Id. Bailey allegedly said “there would be no one on ones” and Bailey returned
the plaintiff to a cell and there was a guy laying down and two other guys were
talking about just having had sex with him. Id. at 3-4. The plaintiff states that
he went to take a drink, and they started laughing and asked the plaintiff if the
water tasted funny. Id. at 4. The plaintiff says that a detained person named
Banks tapped the other guy on the shoulder and said “as soon as he fall’s [sic]
asleep.” Id. The plaintiff alleges that he started to feel “the effects;” he says that
the cell cleaners came so “they” brought “us” out and the plaintiff sat on the
middle bench. Id. The plaintiff states that he tried to stay awake and then
Officer Bailey was taking them back to the cell and the plaintiff was really
feeling the effects. Id. He allegedly asked Bailey to be put in a cell he noticed
was empty because he felt secure in a locked cell; he says he then passed out.
Id.
The plaintiff alleges that when he woke up his anus was sore, and he felt
groggy and noticed feces on the floor and “put two and two together and begun
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to pound on the door as the shutter was closed on booking side.” Id. The
plaintiff says that he heard voices through a crack, and saw an officer with a
name tag reading “Howard” come and ignore the plaintiff with a smart remark.
Id. The plaintiff says that he looked on the court staging side and saw people
leave toward the elevator; he says he pounded only to be ignored. Id. He says
he doesn’t know what time it was, but that he “beat on the other side” until an
officer came and when the plaintiff threatened to report them and sue, that
officer slammed the door. Id. The plaintiff alleges that because he was groggy,
he sat down and dozed off and when he woke up, he was being taken from the
cell and asked who he was. Id. The plaintiff states that he was still groggy from
“sleep and the drug,” and that he couldn’t remember, but when he did, he
stated his name. Id. at 4-5. The plaintiff says he thought this was strange
because he’d turned himself in with a photo I.D. Id. at 5. He says that he was
booked, and that in his photo he “looked to be pretty ruffed [sic] up.” Id. He
was “brought oranges no sock and place into 4D.” Id. The plaintiff alleges that
“they” ignored his pleas for a rape kit and to run “labs.” Id. He states that he
was put there feeling violated and defeated and that he laid there for days. Id.
He says that he was “being threaten[ed] through vents” until his “p.o.” allegedly
came to take his statement and he told her someone was trying to kill him. Id.
The plaintiff alleges that the P.O. shrugged; he says he is sure that he was
monitored by staff as to what he would say. Id. The plaintiff says he was then
moved to “4A” and was allowed to shower and use the bathroom. Id. He asserts
that he was “locked in the cell only one with keys was C.O.’s?” Id.
The plaintiff alleges that he was afraid to file a grievance while at the jail
for fear of retaliation, but that when he got out, he gave a copy of his complaint
to his public defender. Id. He said that he also posted a note to his shift officer
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“stating a prea situation Sgt. Williams who, brought me out 3rd shift no com or
anything fishing for information.” Id. The plaintiff reiterates that he made a
PREA grievance request for an investigation. Id. The plaintiff says that someone
changed his booking date to hide evidence, and he alleges that there is a lot of
corruption. Id. at 6. He also alleged that “[t]hey are also den[y]ing access to
federal mail to help cover corruption!!!” Id.
The plaintiff seeks monetary damages and injunctive relief. Id. at 7.
C.

Analysis

Wisconsin online court records show that the plaintiff was a pretrial
detainee on May 21 and 22, 2024, during the events described in the
complaint. Those records show that an arrest warrant was issued for the
plaintiff on July 31, 2023, he was in custody on May 25, 2024 and he pled
guilty to two counts of disorderly conduct on September 23, 2024. See
wcca.wicourts.gov (last visited Feb. 22, 2025).
The plaintiff appears to allege that jail staff failed to protect him from
being drugged and sexually assaulted at the jail. To state a viable failure-toprotect claim under the Fourteenth Amendment, a pretrial detainee must
allege: (1) the defendant made an intentional decision regarding the conditions
of the plaintiff’s confinement; (2) those conditions put the plaintiff at
substantial risk of suffering serious harm; (3) the defendant did not take
reasonable available measures to abate the risk, even though a reasonable
officer in the circumstances would have appreciated the high degree of risk
involved, making the consequences of the defendant’s inaction obvious; and (4)
the defendant, by not taking such measures, caused the plaintiff’s injuries.
Thomas v. Dart, 39 F.4th 835, 841 (7th Cir. 2022) (citing Kemp v. Fulton
County, 27 F.4th 491, 494 (7th Cir. 2022)).
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Construed liberally, the plaintiff states a failure-to-protect claim against
the jail officers for allegedly allowing him to be drugged and sexually assaulted.
He may proceed against defendants Bailey, Howard and unknown third shift
officers who were allegedly working that night. The plaintiff may not proceed
against Milwaukee County Sheriff Denita Ball because he has not included any
allegations against her. The court will dismiss defendant Ball. The defendant
mentions Lt. Tyler and Lt. Hollowmann on page 6 of his complaint, but makes
no specific allegations against them other than saying that Tyler lied (with no
explanation of what that lie might have been). The plaintiff did not name these
individuals as defendants and he may not proceed against them because he
has made no specific allegations against them.
Once the named defendants have answered the complaint, the plaintiff
will need to use discovery to discover the names of the Doe defendants.
III.

Plaintiff’s Motions to Subpoena Discovery (Dkt. Nos. 7, 10)
The plaintiff has filed two motions to subpoena discovery, requesting that

the jail disclose video evidence, logs and other information related to his
claims. Dkt. Nos. 7, 10. The discovery phase of a case does not begin until after
the defendants have answered the complaint. After the defendants file their
answers, the court will issue a scheduling order setting deadlines for the
parties to complete all discovery and to file dispositive motions. The parties
must not demand discovery from each other until AFTER the court has
issued the scheduling order. The scheduling order will include more
information about discovery. During discovery, the parties exchange
information about the case. When the discovery phase begins, the plaintiff may
submit his discovery request to the lawyer for the defendants. The court should
not be involved in discovery unless, after trying to work it through themselves,
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the parties cannot resolve a discovery-related disagreement on their own. If
that happens, either party may file a motion to compel under Federal Rule of
Civil Procedure 37(a). But before filing a motion to compel, a party must try to
resolve the discovery dispute with the other side and a motion to compel must
describe the efforts the party taken to try to resolve the issue without court
involvement. Fed. R. Civ. P. 37(a)(1).
Because the plaintiff inappropriately submitted his discovery requests to
the court, and because he did so prematurely (before the court had screened
the complaint and before the defendants had answered), the court will deny his
motions for discovery.
IV.

Plaintiff’s Motion to Appoint Counsel (Dkt. No. 16)
The plaintiff has filed a letter requesting the court’s assistance in

appointment of counsel. Dkt. No. 16. In a civil case, the court has discretion to
recruit a lawyer for individuals who cannot afford to hire one. Navejar v. Iyola,
718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. §1915(e)(1); Ray v. Wexford
Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). “[D]eciding whether
to recruit counsel ‘is a difficult decision: Almost everyone would benefit from
having a lawyer, but there are too many indigent litigants and too few lawyers
willing and able to volunteer for these cases.’” Henderson v. Ghosh, 755 F.3d
559, 564 (7th Cir. 2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir.
2014)).
In exercising its discretion, the court must consider two things: “(1) ‘has
the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so,’ and (2) ‘given the difficulty of the case,
does the plaintiff appear competent to litigate it himself?’” Eagan v. Dempsey,
987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d 647, 6548

55 (7th Cir. 2007)). And, given the scarcity of pro bono counsel resources, the
court may also consider the merits of a plaintiff’s claim and what is at stake.
Watts v. Kidman, 42 F.4th 755, 763-64 (7th Cir. 2022).
To satisfy the first prong, the court must determine that a plaintiff made
a good faith effort to hire counsel. Pickett v. Chi. Transit Auth., 930 F.3d 869,
871 (7th Cir. 2019). “This is a mandatory, threshold inquiry that must be
determined before moving to the second inquiry.” Eagan, 987 F.3d at 682. To
demonstrate he satisfied the first prong, the plaintiff must show he contacted
at least three lawyers and provide the court with (1) the lawyers’ names; (2)
their addresses; (3) how and when the plaintiff attempted to contact the lawyer;
and (4) the lawyers’ responses.
“The second inquiry requires consideration of both the factual and legal
complexity of the plaintiff’s claims and the competence of the plaintiff to litigate
those claims.” Eagan, 987 F.3d at 682. When considering the second prong,
the court “must examine the difficulty of litigating specific claims and the
plaintiff’s individual competence to litigate those claims without counsel.”
Pennewell v. Parish, 923 F.3d 486, 490 (7th Cir. 2019). The court looks at
“whether the difficulty of the case, factually, legally, and practically, exceeds
the litigant’s capacity as a layperson to coherently litigate the case.” Id. This
includes “all tasks that normally attend litigation,” such as “evidence gathering,
preparing and responding to court filings and motions, navigating discovery,
and putting on a trial.” Id. at 490-491. The court “must consider the plaintiff’s
literacy, communication skills, education level, litigation experience,
intellectual capacity, psychological history, physical limitations and any other
characteristics that may limit the plaintiff’s ability to litigate the case.” Id. at
491. In situations where the plaintiff files his motion in the early stages of the
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case, the court may determine that it is “impossible to tell whether [the
plaintiff] could represent himself adequately.” Pickett, 930 F.3d at 871.
The plaintiff has not satisfied the threshold requirement for appointment
of counsel because he does not say that he tried to find a lawyer on his own. To
satisfy that requirement, the plaintiff must follow the steps described above.
The court will deny without prejudice the plaintiff’s motion to appoint counsel.
That means that if and when the plaintiff provides the court with proof that he
has contacted at least three lawyers without finding someone to represent him,
he may file another motion asking the court to appoint him a lawyer. That does
not mean that the court will grant that motion; it means only that he may file
another motion once he has done what the court requires.
V.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepaying the filing fee. Dkt. No. 2.
The court DENIES the plaintiff’s motions to subpoena discovery. Dkt.
Nos. 7, 10.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 16.
The court DISMISSES defendant Denita Ball.
Under an informal service agreement between Milwaukee County and
this court, the court will electronically transmit a copy of the complaint and
this order to Milwaukee County for service on defendants Officer Bailey and
Officer Howard. Under the informal service agreement, the court ORDERS
those defendants to file a responsive pleading to the complaint within sixty (60)
days.

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The court ORDERS that the agency that has custody of the plaintiff must
collect from his institution trust account the $347.50 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 plaintiff’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 must clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution must forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution.
The court will send a copy of this order to the Warden at the Milwaukee
Secure Detention Facility, where the plaintiff is confined.
The court ORDERS that the parties must not begin discovery until after
the court enters a scheduling order setting deadlines for completing discovery
and filing dispositive motions.
The court ORDERS that plaintiffs who are incarcerated at Prisoner EFiling 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 incarcerated 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
1 The Prisoner E-Filing Program is mandatory for all individuals incarcerated at

Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
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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
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 also advises the plaintiff
that it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. 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 10th day of March, 2025.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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