Gilali, Yousef v. La Crosse County et al

Filing 6

ORDERIT IS ORDERED that:1) Plaintiff Yousef Gilali's complaint (dkt. #1 ) is DISMISSED. He may have until May 29, 2024, to file an amended complaint that corrects the major problems described in this order - naming a proper defendant and alleging sufficient facts as to how any named defendant personally caused him to suffer a serious harm. If plaintiff fails to respond by the deadline, the court will dismiss this case with prejudice.2) Plaintiff must file his amended complaint on the court's complaint form, which will be sent him with a copy of this order. Plaintiff must fill out the form completely.3) It is plaintiff's obligation to inform the court of any new address. If he fails to do so, his claims may be dismissed with prejudice for failure to prosecute. Signed by District Judge William M. Conley on 5/8/2024. (voc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
YOUSEF GILALI,
Plaintiff,

OPINION AND ORDER

v.
24-cv-172-wmc
LACROSSE COUNTY,
LACROSSE COUNTY JAIL,
LACROSSE SHERIFFS DEPARTMENT,
and CAPTAIN JIM VERSE,
Defendants.
Plaintiff Yousef Gilali, representing himself, alleges that he had to use cleaning rags as
toilet paper at the La Crosse County Jail during a December 2023 shortage of toilet paper.
Under 28 U.S.C. § 1915(e)(2) and § 1915A, this court must screen and dismiss any claim that
is legally frivolous or malicious, fails to state a claim upon which relief may be granted, or asks
for money damages from a defendant who by law cannot be sued for money damages. When
screening a complaint drafted by a non-lawyer, the court applies a less stringent standard.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). However, Gilali must still allege enough
facts to show that he is plausibly entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007). For the reasons explained below, the court will dismiss Gilali’s complaint, but
allow him an opportunity to file an amended complaint.

OPINION
Gilali alleges that there was a toilet paper shortage at the La Crosse County Jail
between December 8 and December 13, 2023. On December 11, 2023, Officer Tonya
told Gilali to use cleaning rags instead and laughed. Gilali did so, which caused him “to

bleed and develop a painful rash.” (Dkt. #1 at 4.) The complaint does not indicate when
his rash resolved, nor does Gilali’s attached jail grievance about the issue. Instead, the
grievance notes that Gilali had no toilet paper for five days, was told to use rags, and had
defecated on himself while waiting for toilet paper or rags. (Dkt. #1-1 at 1.) The jail’s
response to the grievance (also attached to the complaint) concedes that he was told to use
rags, but as an ill-advised joke which was addressed with the officer. The response also
indicates that a review of block and body cameras show Gilali received a full roll of toilet
paper within two days of his asking for it. (Id. at 2.)
Gilali raises a conditions-of-confinement claim, but there are multiple problems with
the current complaint. As an initial matter, different standards apply to an incarcerated
person’s constitutional claims depending on his legal status, and Gilali’s legal status in
December 2023 is unclear from the complaint. If Gilali was a convicted prisoner, his
allegations would implicate his Eighth Amendment right to be free from cruel and unusual
punishment, while the Due Process Clause of the Fourteenth Amendment would govern
his claim were he a pretrial detainee. Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015).
As to the former, courts must apply the objective reasonableness standard, while the
standard is that of deliberate indifference for the latter. Id. Still, this would not by itself
prevent Gilali from proceeding under either standard.
Regardless of the applicable legal standard, however, Gilali has not named a proper
defendant in his complaint. First, he names La Crosse County, but does not allege that
the county adopted a “custom or policy” that caused any constitutional deprivation. See
Monell v. Dep’t of Social Services, 436 U.S. 658, 690 (1978) (municipalities may be held

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liable for violations of civil rights if they have adopted a policy or custom that violated the
plaintiff’s constitutional rights). Far from it, the reasonable inference is that this was a
one-off event as the result of a temporary toilet paper shortage. Second, he seeks to sue
the La Crosse County Jail and the Sherriff’s Department, but neither entity is subject to
suit in this type of civil lawsuit. See Green v. Chvala, 567 F. App’x 458, 461 (7th Cir. 2014)
(sheriff’s department “[could not] be sued under § 1983”); Morrison v. Brown Cnty. Jail, No.
21-cv-1436-pp, 2022 WL 1203042, at *2 (E.D. Wis. Apr. 22, 2022) (a jail is not a
“person” subject to suit under § 1983). Third, Gilali proposes to proceed against Captain
Jim Verse, but there are no allegations indicating how Gilali believes this defendant violated
his rights or implicating this defendant in the alleged underlying events. See Colbert v. City
of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (“Individual liability under [42 U.S.C.]
§ 1983 . . . requires personal involvement in the alleged constitutional deprivation.”). Nor
can Verse be held liable for his supervisory role over others. See Zimmerman v. Tribble, 226
F.3d 568, 574 (7th Cir. 2000) (rejecting § 1983 actions against individuals merely for their
supervisory role over others).
At most, it appears that Captain Verse may have handled Gilali’s appeal from the
denial of his grievance (if there was one), but this is not grounds for a lawsuit. Fourth,
although referencing Officer Tonya in his complaint as the person who told him to use
rags, and Sergeant Mike Thompson as the person who responded to his grievance, Gilali
does not indicate that he intends to name either of these officers as a defendant, and the
court cannot presume that he means to sue them instead.

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One last problem exists with Gilali’s complaint alleging that he suffered bleeding
and a rash from using rags, apparently whether for two or five days. Without more detail
concerning the nature and severity of his symptoms and how they affected him, those
allegations certainly suggest Gilali was uncomfortable, but are insufficient to support an
inference that Gilali was subject to “a substantial risk of serious harm.” Farmer v. Brennan,
511 U.S. 825, 828 (1994); see also Hardeman v. Curran, 933 F.3d 816, 826-27 (7th Cir.
2019) (Sykes, J., concurring) (conditions that pose a substantial risk of serious harm are
objectively serious); Holden v. Knight, No. 3:15-cv-432 JD, 2016 WL 696088, at *3 (N.D.
Ind. Feb. 22, 2016) (“it does not appear as though Holden’s skin rash, which is allegedly
itchy and has ‘hot spots,’ can be considered an objectively serious medical condition.
Typically, without more, skin rashes are not.”). Indeed, “[c]ourts have consistently held
that skin conditions without other symptoms do not qualify as serious medical needs.”
Owen v. Abia, No. 17-21241-CIV-GAYLES, 2017 WL 2822074, at *5 (S.D. Fla. 2017)
(collecting cases).
Although Gilali has not named a proper defendant and his allegations of harm are
insufficient, it may still be possible for him to state a constitutional claim. Accordingly,
the court will allow him an opportunity to file an amended complaint. He should again
use the court’s complaint form, which the clerk’s office will send him, along with a copy of
this order. In drafting his amended complaint, which will act as a complete substitute for
his initial complaint, Gilali should name everyone he wants to sue in the caption, explain
how each defendant was personally involved in violating his right to toilet paper (or an
acceptable alternative), and what specific, serious harm was caused by that defendant’s

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action or inaction. Gilali should also clarify whether he was a convicted prisoner, a pretrial
detainee, or on a supervision hold while he was at the La Crosse County jail in December
2023. If Gilali does not respond by the deadline indicated below, the court will
dismiss this lawsuit with prejudice.

ORDER
IT IS ORDERED that:
1) Plaintiff Yousef Gilali’s complaint (dkt. #1) is DISMISSED. He may have until
May 29, 2024, to file an amended complaint that corrects the major problems
described in this order – naming a proper defendant and alleging sufficient facts
as to how any named defendant personally caused him to suffer a serious harm.
If plaintiff fails to respond by the deadline, the court will dismiss this case with
prejudice.
2) Plaintiff must file his amended complaint on the court’s complaint form, which
will be sent him with a copy of this order. Plaintiff must fill out the form
completely.
3) It is plaintiff’s obligation to inform the court of any new address. If he fails to
do so, his claims may be dismissed with prejudice for failure to prosecute.
Entered this 8th day of May, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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