ATTYOPEN,PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:17−cv−00379−LA

Hall v. County of Milwaukee et al Assigned to: Judge Lynn Adelman Cause: 42:1983 Civil Rights Act
Plaintiff Melissa Hall

Date Filed: 03/14/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Aisha N Davis Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: aisha@loevy.com ATTORNEY TO BE NOTICED

Arthur Loevy Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: loevylaw@loevy.com ATTORNEY TO BE NOTICED

Michael I Kanovitz Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: mike@loevy.com ATTORNEY TO BE NOTICED

Samuel D Heppell Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: sam@loevy.com ATTORNEY TO BE NOTICED

Scott Rauscher Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: scott@loevy.com ATTORNEY TO BE NOTICED

Theresa Kleinhaus Loevy & Loevy 311 N Aberdeen St 3rd Fl Chicago, IL 60607 312−243−5900 Fax: 312−243−5902 Email: tess@loevy.com
Case: 2:17-cv-379 As of: 05/25/2018 08:19 AM CDT 1 of 5

ATTORNEY TO BE NOTICED

V. Defendant County of Milwaukee
Defendant David A Clarke, Jr

represented by Andrew A Jones Husch Blackwell LLP 555 E Wells St − Ste 1900 Milwaukee, WI 53202−3819 414−978−5445 Fax: 414−223−5000 Email: andrew.jones@huschblackwell.com ATTORNEY TO BE NOTICED
Charles H Bohl Husch Blackwell LLP 555 E Wells St − Ste 1900 Milwaukee, WI 53202−3819 414−978−5415 Email: charles.bohl@huschblackwell.com ATTORNEY TO BE NOTICED
Timothy H Posnanski Husch Blackwell LLP 555 E Wells St − Ste 1900 Milwaukee, WI 53202−3819 414−978−5791 Fax: 414−223−5000 Email: timothy.posnanski@huschblackwell.com ATTORNEY TO BE NOTICED
represented by Andrew A Jones (See above for address) ATTORNEY TO BE NOTICED
Charles H Bohl (See above for address) ATTORNEY TO BE NOTICED
Timothy H Posnanski (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/14/2017
03/14/2017 03/14/2017 03/14/2017 03/14/2017

# Docket Text
1 COMPLAINT with Jury Demand; against David A. Clarke, Jr., County of Milwaukee by Melissa Hall. ( Filing Fee PAID $400 receipt number 0757−2537633) (Attachments: # 1 Proposed Summons for County of Milwaukee, # 2 Proposed Summons for David Clarke, # 3 Civil Cover Sheet)(Kleinhaus, Theresa) Modified on 3/15/2017 (amb).
2 NOTICE of Appearance by Theresa Kleinhaus on behalf of Melissa Hall. Attorney(s) appearing: Theresa Kleinhaus (Kleinhaus, Theresa)
3 NOTICE of Appearance by Arthur Loevy on behalf of Melissa Hall. Attorney(s) appearing: Arthur Loevy (Loevy, Arthur)
4 NOTICE of Appearance by Scott Rauscher on behalf of Melissa Hall. Attorney(s) appearing: Scott Rauscher (Rauscher, Scott)
NOTICE Regarding assignment of this matter to Magistrate Judge David E Jones; Consent/refusal forms for Magistrate Judge Jones to be filed within 21 days; the

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03/14/2017 03/15/2017
03/15/2017
03/15/2017 03/15/2017 03/16/2017 03/21/2017 03/21/2017 03/21/2017 04/11/2017 04/11/2017 04/11/2017 04/11/2017 04/11/2017 04/12/2017
04/17/2017 04/25/2017 04/25/2017 04/25/2017 05/04/2017 05/24/2017

consent/refusal form is available on our website; pursuant to Civil Local Rule 7.1 a disclosure statement is to be filed upon the first filing of any paper and should be filed now if not already filed. (lls)
5 DISCLOSURE Statement by Melissa Hall. (Kleinhaus, Theresa)
Case Opening Modification(s); The following modification(s) have been made to your case entry: The attached summons was not prepared using the version found on our website that allows them to be issued − please follow the instructions and resubmit the summons using the event Request for Issuance of Summons which is found under the heading other documents. Please refer to the attorney case opening instructions and the summons instructions. (amb)
TEXT ONLY ORDER signed by Magistrate Judge David E Jones on 03/15/2017. Plaintiff must file proof of service of the complaint or a report on the status of service for each defendant within 45 days of the date of this order. (cc: all counsel)(amb)
6 REQUEST for Issuance of Summons by Melissa Hall (Attachments: # 1 Request for Issuance of Summons − David Clarke)(Kleinhaus, Theresa)
7 NOTICE of Appearance by Michael I Kanovitz on behalf of Melissa Hall. Attorney(s) appearing: Michael Kanovitz (Kanovitz, Michael)
Summons Issued as to All Defendants. (amb)
8 SUMMONS Returned Executed by Melissa Hall. County of Milwaukee served on 3/21/2017. (Kleinhaus, Theresa)
9 SUMMONS Returned Executed by Melissa Hall. David A Clarke, Jr served on 3/21/2017. (Kleinhaus, Theresa)
10 Consent to Jurisdiction by US Magistrate Judge by Melissa Hall. (Kleinhaus, Theresa)
11 AMENDED COMPLAINT with Jury Demand against David A Clarke, Jr, County of Milwaukee filed by Melissa Hall.(Kleinhaus, Theresa)
12 ANSWER to 1 Complaint, by David A Clarke, Jr, County of Milwaukee.(Posnanski, Timothy)
13 DISCLOSURE Statement by David A Clarke, Jr, County of Milwaukee. (Posnanski, Timothy)
14 Refusal to Jurisdiction by US Magistrate Judge by David A Clarke, Jr, County of Milwaukee. (Posnanski, Timothy)
Case Reassigned to Judge Lynn Adelman. Magistrate Judge David E Jones no longer assigned to the case due to non−consent. (amb)
15 SCHEDULING ORDER signed by Judge Lynn Adelman on 4/12/17. Scheduling Conference set for 5/24/2017 at 11:00 AM by telephone before Judge Lynn Adelman. (cc: all counsel)(gc)
16 NOTICE of Appearance by Aisha N Davis on behalf of Melissa Hall. Attorney(s) appearing: Aisha Davis (Davis, Aisha)
17 NOTICE of Appearance by Charles H Bohl on behalf of David A Clarke, Jr, County of Milwaukee. Attorney(s) appearing: Charles H. Bohl (Bohl, Charles)
18 NOTICE of Appearance by Andrew A Jones on behalf of David A Clarke, Jr, County of Milwaukee. Attorney(s) appearing: Andrew A. Jones (Jones, Andrew)
19 ANSWER to 11 Amended Complaint by David A Clarke, Jr, County of Milwaukee.(Posnanski, Timothy)
20 Joint REPORT of Rule 26(f) Plan by Melissa Hall. (Kleinhaus, Theresa)
21 Minute Entry for proceedings held before Judge Lynn Adelman:Telephonic Scheduling Conference held on 5/24/2017; Court to adopt parties proposed schedule (jcl) (Entered: 05/25/2017)

Case: 2:17-cv-379 As of: 05/25/2018 08:19 AM CDT 3 of 5

05/25/2017
06/12/2017 06/16/2017 06/16/2017 06/19/2017 07/17/2017 07/19/2017 08/25/2017 08/28/2017 10/17/2017 10/17/2017
10/17/2017
10/18/2017 10/24/2017 10/25/2017 11/14/2017 11/14/2017 11/14/2017

22 ORDER FOLLOWING SCHEDULING CONFERENCE signed by Judge Lynn Adelman on 5/25/17. Class Certification Motions due by 10/17/17; Plaintiffs Expert Witness List due by 2/1/2018; Defendants Expert Witness List due by 3/1/2018; Plaintiffs Rebuttal Expert Witness List due by 4/2/18; Discovery due by 1/15/2018; Dispositive Motions due by 4/16/2018. (cc: all counsel)(gc) (Entered: 05/26/2017)
23 NOTICE of Appearance by Samuel D Heppell on behalf of Melissa Hall. Attorney(s) appearing: Sam Heppell (Heppell, Samuel)
24 STIPULATION For HIPAA−Qualified Protective Order by All Plaintiffs. (Kleinhaus, Theresa)
25 PROPOSED Proposed Qualified HIPAA Protective Order for Protected Health Information filed by Melissa Hall. (Kleinhaus, Theresa)
26 QUALIFIED HIPAA PROTECTIVE ORDER FOR PROTECTED HEALTH INFORMATION signed by Judge Lynn Adelman on 6/19/17. See Order. (cc: all counsel)(gc)
27 Unopposed MOTION for Order Directing Ascension Healthcare to Produce Certain Medical Records by Melissa Hall. (Attachments: # 1 Text of Proposed Order)(Kleinhaus, Theresa)
28 ORDER GRANTING 27 Unopposed Motion for Order Directing Ascension Healthcare to Produce Certain Medical Records signed by Judge Lynn Adelman on 7/19/17. Court hereby orders that those records be released. (cc: all counsel) (gc)
29 MOTION to Withdraw as Attorney Sarah Grusin by Melissa Hall. (Heppell, Samuel)
TEXT ONLY ORDER signed by Judge Lynn Adelman on 8/28/17 GRANTING 29 Motion to Withdraw as Attorney Sarah Grusin. (cc: all counsel)(gc)
30 MOTION to Restrict Document by Melissa Hall. (Attachments: # 1 Text of Proposed Order)(Kleinhaus, Theresa)
31 MOTION to Certify Class by Melissa Hall. This document and/or certain attachments are restricted to case participants and attorneys of record should use their efiling login and password to view this document (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 26−A, # 28 Exhibit List)(Kleinhaus, Theresa) Modified on 10/18/2017 (asc).
32 Exhibit List by Melissa Hall. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Exhibit 13, # 9 Exhibit 14, # 10 Exhibit 15, # 11 Exhibit 16, # 12 Exhibit 17, # 13 Exhibit 18, # 14 Exhibit 19, # 15 Exhibit 20, # 16 Exhibit 21)This document and/or certain attachments are restricted to case participants and attorneys of record should use their efiling login and password to view this document(Kleinhaus, Theresa)
33 Amended MOTION to Restrict Document by Melissa Hall. (Attachments: # 1 Text of Proposed Order Amended)(Kleinhaus, Theresa)
34 STIPULATION for Extension of Time by All Defendants. (Attachments: # 1 Text of Proposed Order)(Jones, Andrew)
35 ORDER FOR EXTENSION OF TIME. Defendant's submissions in opposition to Plaintiff's Motion for Class Certification 31 due by 11/14/17. Signed by Judge Lynn Adelman on 10/25/2017. (cc: all counsel)(gc)
36 BRIEF in Opposition filed by David A Clarke, Jr, County of Milwaukee re 31 MOTION to Certify Class . (Jones, Andrew)
37 DECLARATION of James Cox (Jones, Andrew)
38 DECLARATION of Andrew A. Jones (Attachments: # 1 Exhibit A: Hall Deposition Excerpts)(Jones, Andrew)

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11/28/2017 11/28/2017 11/28/2017 12/20/2017 12/22/2017
05/23/2018

39 REPLY BRIEF in Support filed by Melissa Hall re 31 MOTION to Certify Class . (Attachments: # 1 Exhibit List, # 2 Exhibit 27 − Summary Judgment Order in Martin v. County of Milwaukee, # 3 Exhibit 28 − Melissa Hall Court Recordds, # 4 Exhibit 29 − Cover Sheet for Sealed Exhibit 29)(Rauscher, Scott)
40 MOTION to Restrict Document − Exhibit 29 to Reply in Support of Motion for Class Certification by Melissa Hall. (Rauscher, Scott)
41 APPENDIX by Melissa Hall Sealed Exhibit 29 to Reply in Support of Motion for Class Certification. This document and/or certain attachments are restricted to case participants and attorneys of record should use their efiling login and password to view this document(Rauscher, Scott)
42 Joint MOTION to Amend/Correct Scheduling Order by Melissa Hall. (Attachments: # 1 Text of Proposed Order)(Kleinhaus, Theresa)
43 ORDER granting 42 Joint Motion to Amend/Correct Scheduling Order. The court vacates the Scheduling Order set forth in Docket No. 22 . The parties are directed to submit a proposed discovery schedule within 14 days of the Court's ruling on the class certification motion. Signed by Judge Lynn Adelman on 12/22/2017. (cc: all counsel) (gc)
44 DECISION AND ORDER signed by Judge Lynn Adelman on 5/23/18 denying 31 Motion to Certify Class. (cc: all counsel) (jad) (Entered: 05/24/2018)

Case: 2:17-cv-379 As of: 05/25/2018 08:19 AM CDT 5 of 5

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

MELISSA Hall, on behalf of herself and others similarly situated,
Plaintiffs,
v.
COUNTY OF MILWAUKEE, DAVID A. CLARKE, JR., in his Official capacity,
Defendants.

) ) ) ) ) ) ) No. ) ) ) ) ) ) JURY TRIAL DEMANDED )

COMPLAINT Plaintiff MELISSA HALL on behalf of herself and all others similarly situated, and complaining of Defendants, COUNTY OF MILWAUKEE, DAVID A. CLARKE, JR., states as follows:
Introduction 1. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation under color of law of Plaintiff’s rights, and all those similarly situated, as secured by the United States Constitution.
Jurisdiction and Venue 2. This Court has jurisdiction of the action pursuant to 28 U.S.C. § 1331. 3. Venue is proper under 28 U.S.C. § 1391(b). On information and belief, all or most of the parties reside in this

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judicial district, and the events giving rise to the claims asserted herein all occurred within district.
Parties 4. Plaintiff, Melissa Hall, is 27 years old. From February-August 2013, she was an inmate at the Milwaukee County Jail. During her incarceration, Plaintiff was pregnant. She received prenatal and post-partum care and was hospitalized for childbirth and delivery. 5. Defendant David A. Clarke, Jr. is the Sheriff of Milwaukee County. In that capacity he is in charge of the Milwaukee County Jail (“MCJ”). By law, custom, and/or delegation, he has policymaking authority over the jail for the actions at issue in this case. He is responsible for ensuring that the policies and practices of the MCJ comply with federal and state requirements for the treatment of detainees. He has had personal knowledge that the shackling practices challenged in this case were occurring at the jail. He is sued in his official capacity. 6. The County of Milwaukee is a Wisconsin municipal corporation with its principal place of business in Milwaukee, Wisconsin.
Facts 7. Plaintiff was forced to receive pre-natal care, labor, give birth, and undergo post-partum treatment while shackled, in accordance with the Jail’s policy, custom, and/or widespread
2 Case 2:17-cv-00379-DEJ Filed 03/14/17 Page 2 of 11 Document 1

practice of shackling all detainees during medical treatment. Armed deputies were present for the entirety of Plaintiff Hall’s hospitalization for childbirth.
8. For example, when Plaintiff was hospitalized for childbirth and left her hospital bed to go to the bathroom, she was made to wear a “belly-chain” around her waist with her wrists attached to the waist and her legs attached to one another by leg-irons.
9. During her labor and delivery, Plaintiff’s medical providers asked to have the shackles removed and the deputies refused.
10. As a result of the shackling, medical professionals had difficulty administering an epidural to Plaintiff. The shackling and its consequences caused emotional and physical pain and suffering, discomfort, left marks on Plaintiff’s body, and exposed her to unreasonable risks of harm.
11. The Jail’s blanket shackling policy, and its shackling of Plaintiff, are not rationally related to a legitimate, nonpunitive purpose. Alternatively, it is excessive in relation to any legitimate purpose it allegedly serves.
12. The policy includes no provisions for individualized evaluations of each pregnant inmate. Rather, it ensures that correctional officers shackle all pregnant women (and in fact all hospitalized inmates), without regard to their criminal history
3 Case 2:17-cv-00379-DEJ Filed 03/14/17 Page 3 of 11 Document 1

or medical history. 13. Plaintiff’s shackling during prenatal care, labor,
delivery, and post-partum treatment pursuant to the jail’s blanket shackling policy constituted impermissible punishment in violation of her Fourteenth Amendment rights and exposed her to unreasonable risks of harm.
14. For instance, shackling women during labor can lead to: an inability for medical staff to assess hemorrhaging, rapidly perform an emergency caesarian section, or move a woman to address an umbilical cord wrapped around the baby’s windpipe, as well as a variety of other problems.
15. Belly chains and leg irons can impact the mother's balance and increase the risk of falls thereby endangering the life and health of the child. Cuffing a woman's hands may prevent the breaking of a fall and impede a woman's ability to protect her stomach. Preventing walking during the first stage of labor may deny the woman the benefits of labor acceleration and discomfort alleviation. Preventing walking during the postpartum phase may enhance the risk of deep vein thrombosis and its lifethreatening embolic complications.
16. Complete freedom of motion is absolutely required during delivery because various pelvic and lower extremity manipulations may be employed to facilitate delivery, especially in difficult cases (e.g., "Shoulder Dystocia").
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17. The American Correctional Association, the American Bar Association, the American Public Health Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, and the World Health Organization have all opposed use of perinatal restraints.
18. In October 2007, the U.S. Marshals Service revised its restraint policies, all but eliminating the shackling of pregnant federal pretrial detainees and inmates, unless deemed necessary by compelling security considerations. The policy stated that “restraints should not be used when compelling medical reasons dictate, including when a pregnant prisoner is in labor, is delivering her baby, or is in immediate post-delivery recuperation.” Special emphasis was placed on the use of the least restrictive constraints “to ensure safety and security.”
19. Shortly thereafter, the Federal Bureau of Prisons, home to 14,000 federal female inmates, amended its policy to bar the shackling of pregnant inmates in labor, delivery, or postdelivery recuperation “unless there are reasonable grounds to believe the inmate presents an immediate, serious threat of hurting herself, staff or others, or there are reasonable grounds to believe the inmate presents an immediate and credible risk of escape that cannot be reasonably contained through other methods.” The policy also indicated that if an inmate is restrained while in labor (or while delivering her baby), the
5 Case 2:17-cv-00379-DEJ Filed 03/14/17 Page 5 of 11 Document 1

restraints must be “the least restrictive restraints necessary to still ensure safety and security.”
20. More recently, Immigration Customs Enforcement has adopted some of the same principles in its operations manual of performance-based national detention standards.
21. Plaintiff seeks to pursue the shackling claim both for herself and for a class of others similarly situated (the “Class”) pursuant to Federal Rule of Civil Procedure 23(b)(3).
The Prospective Class Members 22. Plaintiff seeks to represent a class consisting of the following people: All persons who, while incarcerated by Milwaukee County Jail, were shackled during prenatal care, labor, delivery, or post-partum treatment at any time from March 14, 2011-present. 23. The individuals in this class are so numerous that joinder of all members is impractical. On information and belief, there are at least 40 prospective class members. 24. There are questions of law and fact common to the claims of the class. Among these common questions are: • Whether a policy or standard practice of shackling
women during prenatal care, childbirth, delivery, and post-partum treatment serves a legitimate governmental purpose; and • Whether a policy or standard practice of shackling
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women during prenatal care, childbirth, delivery, and post-partum treatment is excessive in relation to the governmental purpose allegedly served; and • Whether a policy or standard practice of shackling women during prenatal care, childbirth, delivery, and post-partum treatment exposes women to unreasonable risks of harm. 25. The shackling claim of Plaintiff Hall is typical of the shackling claims of the class. Plaintiff Hall seeks to prove that the shackling policy violated the constitutional rights of the members of the Class and that the County of Milwaukee and Defendant Clarke are liable. 26. Plaintiff Hall will fairly and accurately represent the interests of the Class. She has retained skilled counsel with experience in class action and constitutional litigation. 27. The questions of law and fact common to the Class predominate over any individual issues. In addition, a class action would be the most fair and efficient method of adjudicating the Class members’ claims. 28. The County of Milwaukee and Sheriff Clarke have implemented, encouraged, and/or condoned an unconstitutional policy of shackling women during labor, delivery, and/or recovery from delivery. 29. The misconduct described above was undertaken pursuant
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to the policy and practice of the Milwaukee County Jail in that: As a matter of both policy and practice, the Milwaukee
County Jail directly encourages, and therefore is the moving force behind, the very type of misconduct at issue here—shackling women during prenatal and post-partum care as well as during labor and delivery.
Count I - 42 U.S.C. § 1983 Due Process – 14th Amendment
(Class Claim) 30. Each paragraph of this Complaint is incorporated herein. 31. Defendants County and Sheriff Clarke violated the liberty interest in bodily integrity of Plaintiff and the members of the Class through the shackling policy. Likewise, the County and Sheriff Clarke exposed Plaintiff and the members of the Class to unreasonable risks of harm through the shackling policy. 32. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others, and was objectively unreasonable. 33. The misconduct described in this Count was undertaken by Defendants within the scope of their employment and under color of law such that their employer, the County of Milwaukee, is liable for their actions. 34. The misconduct described in this Count was undertaken pursuant to the policy and practice of the Milwaukee County Jail
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in the manner described more fully above. 35. As a result of the misconduct described in this Count,
Plaintiff and the members of the Class have suffered damages, including but not limited to emotional distress and anguish, as well as physical pain and suffering, and exposure to unreasonable risks of harm.
Count II – Indemnification 36. Each of the foregoing paragraphs is incorporated as if fully stated herein. 37. Wisconsin law, Wisc. Stat. §895.46, requires public entities to pay any tort judgment for damages for which employees are liable within the scope of their employment activities. 38. Defendant Clark was an employee of the County of Milwaukee, who acted within the scope of his employment in committing the misconduct described herein. WHEREFORE, Plaintiff MELISSA HALL on behalf of herself and the members of the class, respectfully requests that this Court 1) appoint Loevy & Loevy as class counsel on behalf of the prospective class; and 2) enter judgment in her favor and against Defendants, COUNTY OF MILWAUKEE, DAVID A. CLARKE, JR., awarding compensatory damages and attorneys’ fees, as well as any other relief this Court deems just and appropriate.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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JURY DEMAND Plaintiff, MELISSA HALL, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.
RESPECTFULLY SUBMITTED,
/s/ Theresa Kleinhaus Attorneys for Plaintiff Arthur Loevy Michael Kanovitz Scott Rauscher Theresa Kleinhaus LOEVY & LOEVY 311 N. Aberdeen St., Third Floor Chicago, IL 60607 312) 243-5900
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 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

MELISSA Hall, on behalf of herself and others similarly situated,
Plaintiffs,
v.
COUNTY OF MILWAUKEE, DAVID A. CLARKE, JR., in his Official capacity,
Defendants.

) ) ) ) ) ) ) No. 2:17-CV-00379 ) ) ) ) ) ) JURY TRIAL DEMANDED )

FIRST AMENDED COMPLAINT Plaintiff MELISSA HALL on behalf of herself and all others similarly situated, and complaining of Defendants, COUNTY OF MILWAUKEE and DAVID A. CLARKE, JR., states as follows:
Introduction 1. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation under color of law of Plaintiff’s rights, and all those similarly situated, as secured by the United States Constitution.
Jurisdiction and Venue 2. This Court has jurisdiction of the action pursuant to 28 U.S.C. § 1331. 3. Venue is proper under 28 U.S.C. § 1391(b). On information and belief, all or most of the parties reside in this

1 Case 2:17-cv-00379-LA Filed 04/11/17 Page 1 of 11 Document 11

judicial district, and the events giving rise to the claims asserted herein all occurred within district.
Parties 4. Plaintiff, Melissa Hall, is 27 years old. From February-August 2013, she was an inmate at the Milwaukee County Jail. During her incarceration, Plaintiff was pregnant. She received prenatal and post-partum care and was hospitalized for childbirth and delivery. 5. Defendant David A. Clarke, Jr. is the Sheriff of Milwaukee County. In that capacity he is in charge of the Milwaukee County Jail (“MCJ”). By law, custom, and/or delegation, he has policymaking authority over the jail for the actions at issue in this case. He is responsible for ensuring that the policies and practices of the MCJ comply with federal and state requirements for the treatment of detainees. He has had personal knowledge that the shackling practices challenged in this case were occurring at the jail. He is sued in his official capacity. 6. The County of Milwaukee is a Wisconsin municipal corporation with its principal place of business in Milwaukee, Wisconsin.
Facts 7. Plaintiff was forced to receive pre-natal care, labor, give birth, and undergo post-partum treatment while shackled, in accordance with the Jail’s policy, custom, and/or widespread
2 Case 2:17-cv-00379-LA Filed 04/11/17 Page 2 of 11 Document 11

practice of shackling all detainees during medical treatment. Armed deputies were present for the entirety of Plaintiff Hall’s hospitalization for childbirth.
8. For example, when Plaintiff was hospitalized for childbirth and left her hospital bed to go to the bathroom, she was made to wear a “belly-chain” around her waist with her wrists attached to the waist and her legs attached to one another by leg-irons.
9. During her labor and delivery, Plaintiff’s medical providers asked to have the shackles removed and the deputies refused.
10. As a result of the shackling, medical professionals had difficulty administering an epidural to Plaintiff. The shackling and its consequences caused emotional and physical pain and suffering, discomfort, left marks on Plaintiff’s body, and exposed her to unreasonable risks of harm.
11. The Jail’s blanket shackling policy, and its shackling of Plaintiff, are not rationally related to a legitimate, nonpunitive purpose. Alternatively, it is excessive in relation to any legitimate purpose it allegedly serves.
12. The policy includes no provisions for individualized evaluations of each pregnant inmate. Rather, it ensures that correctional officers shackle all pregnant women (and in fact all hospitalized inmates), without regard to their criminal history
3 Case 2:17-cv-00379-LA Filed 04/11/17 Page 3 of 11 Document 11

or medical history. 13. Plaintiff’s shackling during prenatal care, labor,
delivery, and post-partum treatment pursuant to the jail’s blanket shackling policy constituted impermissible punishment in violation of her Fourteenth Amendment rights and exposed her to unreasonable risks of harm. The use of shackles during prenatal care, labor, delivery, and post-partum treatment pursuant to the jail’s blanket shackling policy constituted unreasonable force in violation of Plaintiff’s Fourteenth Amendment rights. The shackling of Plaintiff and the prospective class demonstrated deliberate indifference to a serious and obvious medical need in violation of Plaintiff’s Fourteenth Amendment rights.
14. For instance, shackling women during labor can lead to: an inability for medical staff to assess hemorrhaging, rapidly perform an emergency caesarian section, or move a woman to address an umbilical cord wrapped around the baby’s windpipe, as well as a variety of other problems.
15. Belly chains and leg irons can impact the mother's balance and increase the risk of falls thereby endangering the life and health of the child. Cuffing a woman's hands may prevent the breaking of a fall and impede a woman's ability to protect her stomach. Preventing walking during the first stage of labor may deny the woman the benefits of labor acceleration and discomfort alleviation. Preventing walking during the postpartum
4 Case 2:17-cv-00379-LA Filed 04/11/17 Page 4 of 11 Document 11

phase may enhance the risk of deep vein thrombosis and its lifethreatening embolic complications.
16. Complete freedom of motion is absolutely required during delivery because various pelvic and lower extremity manipulations may be employed to facilitate delivery, especially in difficult cases (e.g., "Shoulder Dystocia").
17. The American Correctional Association, the American Bar Association, the American Public Health Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, and the World Health Organization have all opposed use of perinatal restraints.
18. In October 2007, the U.S. Marshals Service revised its restraint policies, all but eliminating the shackling of pregnant federal pretrial detainees and inmates, unless deemed necessary by compelling security considerations. The policy stated that “restraints should not be used when compelling medical reasons dictate, including when a pregnant prisoner is in labor, is delivering her baby, or is in immediate post-delivery recuperation.” Special emphasis was placed on the use of the least restrictive constraints “to ensure safety and security.”
19. Shortly thereafter, the Federal Bureau of Prisons, home to 14,000 federal female inmates, amended its policy to bar the shackling of pregnant inmates in labor, delivery, or postdelivery recuperation “unless there are reasonable grounds to
5 Case 2:17-cv-00379-LA Filed 04/11/17 Page 5 of 11 Document 11

believe the inmate presents an immediate, serious threat of hurting herself, staff or others, or there are reasonable grounds to believe the inmate presents an immediate and credible risk of escape that cannot be reasonably contained through other methods.” The policy also indicated that if an inmate is restrained while in labor (or while delivering her baby), the restraints must be “the least restrictive restraints necessary to still ensure safety and security.”
20. More recently, Immigration Customs Enforcement has adopted some of the same principles in its operations manual of performance-based national detention standards.
21. Plaintiff seeks to pursue the shackling claim both for herself and for a class of others similarly situated (the “Class”) pursuant to Federal Rule of Civil Procedure 23(b)(3).
The Prospective Class Members 22. Plaintiff seeks to represent a class consisting of the following people: All persons who, while incarcerated by Milwaukee County Jail, were shackled during prenatal care, labor, delivery, or post-partum treatment at any time from February 1, 2010-present. 23. The individuals in this class are so numerous that joinder of all members is impractical. On information and belief, there are at least 40 prospective class members. 24. There are questions of law and fact common to the
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claims of the class. Among these common questions are: • Whether a policy or standard practice of shackling women during prenatal care, childbirth, delivery, and post-partum treatment serves a legitimate governmental purpose; • Whether a policy or standard practice of shackling women during prenatal care, childbirth, delivery, and post-partum treatment is excessive in relation to the governmental purpose allegedly served; • Whether a policy or standard practice of shackling women during prenatal care, childbirth, delivery, and post-partum treatment exposes women to unreasonable risks of harm; • Whether a policy or standard practice of shackling women during prenatal care, childbirth, delivery, and post-partum treatment constitutes an unreasonable use of force; • Whether the County and/or Sheriff Clarke acted with deliberate indifference to a serious, obvious medical need when he required deputies to shackle women during prenatal care, childbirth, delivery, and post-partum treatment. 25. The shackling claim of Plaintiff Hall is typical of the
shackling claims of the class. Plaintiff Hall seeks to prove that
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the shackling policy violated the constitutional rights of the members of the Class and that the County of Milwaukee and Defendant Clarke are liable.
26. Plaintiff Hall will fairly and accurately represent the interests of the Class. She has retained skilled counsel with experience in class action and constitutional litigation.
27. The questions of law and fact common to the Class predominate over any individual issues. In addition, a class action would be the most fair and efficient method of adjudicating the Class members’ claims.
28. The County of Milwaukee and Sheriff Clarke have implemented, encouraged, and/or condoned an unconstitutional policy of shackling women during labor, delivery, and/or recovery from delivery.
29. The misconduct described above was undertaken pursuant to the policy and practice of the Milwaukee County Jail in that:
As a matter of both policy and practice, the Milwaukee County Jail directly encourages, and therefore is the moving force behind, the very type of misconduct at issue here—shackling women during prenatal and post-partum care as well as during labor and delivery.
Count I - 42 U.S.C. § 1983 Due Process – 14th Amendment
(Class Claim) 30. Each paragraph of this Complaint is incorporated
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herein. 31. Defendants County and Sheriff Clarke violated the
liberty interest in bodily integrity of Plaintiff and the members of the Class through the shackling policy. The County and Sheriff Clarke exposed Plaintiff and the members of the Class to unreasonable risks of harm through the shackling policy. Defendants County and Sheriff Clarke used unreasonable force against Plaintiff and the members of the Class because of the shackling policy. Defendants County and Sheriff Clarke were deliberately indifference to the serious, obvious medical needs of Plaintiff and the members of the Class.
32. The misconduct described in this Count was undertaken with malice, willfulness, and reckless indifference to the rights of others, and was objectively unreasonable.
33. The misconduct described in this Count was undertaken by Defendants within the scope of their employment and under color of law such that their employer, the County of Milwaukee, is liable for their actions.
34. The misconduct described in this Count was undertaken pursuant to the policy and practice of the Milwaukee County Jail in the manner described more fully above.
35. As a result of the misconduct described in this Count, Plaintiff and the members of the Class have suffered damages, including but not limited to emotional distress and anguish, as
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well as physical pain and suffering, and exposure to unreasonable risks of harm.
Count II – Indemnification 36. Each of the foregoing paragraphs is incorporated as if fully stated herein. 37. Wisconsin law, Wisc. Stat. §895.46, requires public entities to pay any tort judgment for damages for which employees are liable within the scope of their employment activities. 38. Defendant Clark was an employee of the County of Milwaukee, who acted within the scope of his employment in committing the misconduct described herein. WHEREFORE, Plaintiff MELISSA HALL on behalf of herself and the members of the class, respectfully requests that this Court 1) appoint Loevy & Loevy as class counsel on behalf of the prospective class; and 2) enter judgment in her favor and against Defendants, COUNTY OF MILWAUKEE, and DAVID A. CLARKE, JR., awarding compensatory damages and attorneys’ fees, as well as any other relief this Court deems just and appropriate.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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JURY DEMAND Plaintiff, MELISSA HALL, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.
RESPECTFULLY SUBMITTED,
/s/ Theresa Kleinhaus Attorneys for Plaintiff
Arthur Loevy Michael Kanovitz Scott Rauscher Theresa Kleinhaus LOEVY & LOEVY 311 N. Aberdeen St., Third Floor Chicago, IL 60607 312) 243-5900
CERTIFICATE OF SERVICE I, Theresa Kleinhaus, an attorney, certify that on April 11, 2017, I caused the foregoing Plaintiff’s First Amended Complaint to be filed via the Court’s CM/ECF electronic filing system. I also mailed a copy to Defendant County of Milwaukee at 901 N. 9th Street, Milwaukee, WI 53233 and Defendant David Clarke at 821 W. State Street, Room 107, Milwaukee, WI 53233.
/s/ Theresa Kleinhaus
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

MELISSA HALL, individually and on behalf of all others similarly situated,
Plaintiff,

v.

Case No. 17-C-0379

COUNTY OF MILWAUKEE and
RICHARD R. SCHMIDT, in his Official Capacity as Sheriff of Milwaukee County,1
Defendant.
______________________________________________________________________

DECISION AND ORDER

The Sheriff of Milwaukee County runs the Milwaukee County Jail and maintains a

policy under which all detainees must be shackled to their beds while they are receiving

medical treatment at a hospital. Until recently, the sheriff applied this policy to pregnant

detainees who were hospitalized for childbirth. Melissa Hall was a detainee at the

Milwaukee County Jail during the time when this policy was in force. She was shackled

to her hospital bed during labor, delivery, and post-partum treatment. She filed this

action under 42 U.S.C. § 1983 against Milwaukee County and its sheriff, alleging that

the sheriff’s policy, as applied to pregnant women during childbirth, violated the Due

Process Clause of the Fourteenth Amendment. Hall proposes to represent a class of all

women who were confined in the jail while the policy was in force and who were

1 When the plaintiff filed this case, the Sheriff of Milwaukee County was David A. Clarke, Jr. The plaintiff named Clarke, in his official capacity, as a defendant. Richard R. Schmidt has since replaced Clarke as the sheriff. I have amended the caption to reflect that Schmidt was automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d).

shackled during childbirth. Before me now is her motion to certify the class under Federal Rule of Civil Procedure 23.
I. FACTS The plaintiff was incarcerated at the Milwaukee County Jail from February 2013 to August 2013. During this time, the official policy of the Milwaukee County Sheriff was that “[i]nmates in the hospital will be restrained by a handcuff and leg iron attached to the side rail of the bed.” (Pl.’s Exs. 2 & 3; ECF Nos. 31-2 & 31-3.) The policy made no exception for pregnant inmates who were hospitalized for childbirth. Moreover, the sheriff’s department made no individualized assessment of an inmate before deciding to shackle her during childbirth. While she was in the jail, the plaintiff spent two days in the hospital for labor, delivery, and post-partum care. At the hospital, she was restrained with leg irons, wrist restraints, and a belly chain. At least one armed sheriff’s deputy was in the room with her at all times. The plaintiff asked to have the restraints removed, but the deputies refused. A nurse asked to have the restraints removed while the plaintiff was undergoing a stress test, but again the deputies refused. During delivery, the doctor asked to have some of the restraints removed. The deputies agreed to remove the belly chain, but the plaintiff remained shackled to the bed with a handcuff and a leg iron. The shackles made it difficult to administer an epidural, left marks on the plaintiff’s wrists, cut her ankles, and made it difficult for her to hold her newborn son. According to the plaintiff, at least 45 inmates were shackled during childbirth while the sheriff’s policy was in force. Seven of these women have filed declarations in
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this case. In their declarations, they describe being restrained under circumstances similar to the plaintiff’s.
II. DISCUSSION The plaintiff proposes to have the claims of the 45 women who were shackled during childbirth adjudicated as a class action. When a case is certified as a class action, a class representative litigates a common claim on behalf of a large group of similarly situated persons. Because the claim of the class representative is largely the same as the claims of the absent class members, using the class device enables the court to resolve most of the issues that affect all class members by adjudicating only the class representative’s claim. To determine whether a class may be certified, I must conduct a two-step analysis. Under the first step, I must determine whether the plaintiff has satisfied the four express requirements of Federal Rule of Civil Procedure 23(a) and a fifth, implied requirement not mentioned in the rule but enforced by the courts. The four express requirements are: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claim of the named plaintiff is typical of the claims of the class members; and (4) the plaintiff will fairly and adequately protect the interests of the class. These four requirements are known as “numerosity,” “commonality,” “typicality,” and “adequacy of representation.” The fifth, implied requirement is known as “ascertainability.” It requires that the class “be defined clearly” and that its membership be determined “by objective criteria rather than by, for example, a class member's state of mind.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015).
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Under the second step of the analysis, I must determine whether the case meets
one of the three criteria identified in Federal Rule of Civil Procedure 23(b). In the
present case, Hall seeks to have the class certified under Rule 23(b)(3). This is allowed
only if (a) questions of law or fact common to the class members predominate over
questions affecting only individual members and (b) a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.
In order to analyze whether the plaintiff’s claim satisfies the above requirements,
I must first describe the nature of her claim. The plaintiff alleges that, by restraining her
during childbirth, the sheriff deprived her of her right to be free from the use of
unnecessary bodily restraints. See May v. Sheahan, 226 F.3d 876, 884 (7th Cir. 2000).2 The use of bodily restraints is unnecessary “if their use is not rationally related
to a legitimate non-punitive government purpose or they appear excessive in relation to
the purpose they allegedly serve.” Id. To apply this standard, a court balances the
detainee’s interest in being free from unnecessary restraints against the jail’s reason for
using the restraints, i.e., preventing escapes and protecting the safety of inmates,
guards, and medical providers. See Hart v. Sheahan, 396 F.3d 887, 893 (7th Cir.
2005). If, under the circumstances, the risk of the inmate’s escaping or harming another
2 The due-process right at issue in this case applies only to “pretrial detainees,” who are persons who have been charged with crimes but have not been convicted. See Bell v. Wolfish, 441 U.S. 520, 523 (1979). The defendants contend that at least some of the potential class members—including the plaintiff herself—were serving criminal sentences while they were in the jail and therefore do not qualify as pretrial detainees. However, the difference between a pretrial detainee and a convicted prisoner turns out to be irrelevant to the outcome of this motion, and thus I will not discuss it further. Instead, I assume without deciding that the plaintiff and the potential class members were all pretrial detainees.
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person does not outweigh the inmate’s interest in being free from the restraints, then applying the restraints will violate the inmate’s constitutional rights.
For the plaintiff to prevail on her claim, then, she must show that the jail did not have sufficient reason to believe that she would attempt to escape or to harm herself or others if she was not shackled during childbirth. But here we immediately encounter a problem that prevents me from certifying the plaintiff’s claim as a class action: each inmate is different, and thus, at least in theory, the sheriff could have had sufficient reason for shackling some inmates but not others. Some inmates may be more dangerous or likely to attempt an escape than others. Perhaps the vast majority of inmates will not try to escape or to harm themselves or others while they are in the hospital for childbirth. For these women, the sheriff’s interest in preventing escapes and harm to other persons would likely not justify the use of shackles during childbirth. But it is at least conceivable that an inmate could be so dangerous or likely to attempt an escape that the sheriff would be justified in restraining her during childbirth. Thus, the claims of the potential class members are not amenable to resolution on a representative basis. That is, resolving the plaintiff’s claim will not go very far towards resolving the claim of any other potential class member. If the plaintiff wins her claim, all that she will have established is that the sheriff did not have reason to believe that she was so dangerous or likely to escape that she needed to be restrained during childbirth. It would not follow from the resolution of her claim that the sheriff did not have reason to believe that any other woman in the class was so dangerous or likely to escape that she needed to be restrained during childbirth. Rather, to resolve the claims
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of the other women, the facts and circumstances applicable to each of them would have to be examined. This would require 45 separate trials.
The plaintiff attempts to get around this problem by noting that her theory of the case is that there could never be an adequate justification for shackling any woman during labor, delivery, or post-partum care, no matter how dangerous she may be. (Reply Br. at 7, ECF No. 39.) But this tactic fails for two reasons. First, in order to win her own claim, the plaintiff does not have to prove that there could never be an adequate justification for shackling a woman during childbirth. Instead, all the plaintiff has to prove is that the jail did not have an adequate justification for shackling her. The same goes for the other class members: each of them only has to prove that the sheriff did not have sufficient reason for shackling her. None of them has to also prove that the sheriff could never constitutionally shackle a woman during childbirth.
The second problem with the plaintiff’s tactic is that answering the plaintiff’s proposed common question will not necessarily go a long way towards resolving the claims of the proposed class. To be sure, if the court agreed with the plaintiff and found that there could never be an adequate justification for shackling an inmate during childbirth, then the plaintiff will have established that every class member was unlawfully shackled, and this would go a long way towards resolving the claims of the entire class. But if the court disagreed with the plaintiff and determined that the sheriff could shackle an inmate during childbirth under some circumstances, then the answer would not resolve any class member’s claim. Instead, the court would have to separately examine the facts and circumstances surrounding each class member to determine whether the sheriff violated her constitutional rights.
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The above problems show that there are no “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). A common question is a “common contention” that is “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). As the analysis above shows, in the present case there is no question that can be answered in a way that will resolve an issue that is central to the validity of all 45 potential class members’ claims in one stroke. Instead, the court must look at the facts and circumstances surrounding each individual class member to determine whether the sheriff had an adequate justification for shackling her during childbirth.
In another attempt to demonstrate that the claims of the proposed class raise common questions, the plaintiff notes that the sheriff applied his shackling policy to every inmate who was hospitalized for childbirth and did not individually assess an inmate to determine whether she was dangerous enough to warrant shackling. The plaintiff argues that, for this reason, the fact that the sheriff “theoretically could have justified using shackles on some of the women . . . does not undercut the fact that common issues will dominate this case.” (Reply Br. at 6.) However, no potential class member’s rights were violated by the mere existence of the policy or by the mere fact that the sheriff did not perform an individualized assessment before deciding to restrain her. Rather, to the extent that any constitutional violations occurred, they occurred when the sheriff applied shackles to inmates who were insufficiently likely to try to escape or to harm others while they were in the hospital for childbirth. Even though the sheriff, in effect, assumed that all inmates were likely to try to escape or to harm others
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if they were not shackled during childbirth, it does not follow that the sheriff violated the rights of every shackled inmate. The sheriff may be able to show that at least some of the inmates were dangerous enough to warrant shackling under the applicable constitutional standard. For those inmates, the sheriff’s blanket policy would not have resulted in a violation of their rights. Thus, separate trials will be needed to determine which, if any, inmates suffered constitutional violations when the policy was applied to them.
Of course, whether the sheriff maintained a policy under which all inmates were shackled during childbirth is a common question of fact that applies to every class member’s claim. But this question of fact is undisputed and will require no litigation— the sheriff concedes that the policy existed and that it was uniformly applied to all women during childbirth. Thus, even if this question of fact qualified as a common question for purposes of Rule 23(a)(2), it would constitute only a very small part of this case. The individual issues—including whether any given class member was unconstitutionally shackled—would predominate. As is relevant to this case, a class may be certified only if the common questions rather than the individual issues predominate. See Fed. R. Civ. P. 23(b)(3). So the question of whether the sheriff maintained the shackling policy is not a question that can, by itself, serve as a basis for class certification.
Although I must deny the plaintiff’s motion for class certification, I note that this does not mean that the plaintiff and the other inmates who were shackled during childbirth cannot litigate their claims simultaneously as part of a single legal proceeding. Under Federal Rule of Civil Procedure 20, persons having similar claims against a
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defendant may join in one action as plaintiffs. See Fed. R. Civ. P. 20(a)(1). Moreover, the court may consolidate separate actions that raise similar issues. See Fed. R. Civ. P. 42. Unlike with a class action, neither of these options would allow the plaintiff to represent the other women. Rather, each woman would have to be named as a plaintiff, and each woman’s claim would have to be individually adjudicated. But it may be more efficient to conduct joint proceedings on the separate claims. For example, because many of the same documents and witnesses will be involved in each claim, it may make sense to consolidate the claims for purposes of discovery. Thus, the plaintiff and the other women who were injured by the sheriff’s policy may wish to consider pursuing joinder under Rule 20 or consolidation under Rule 42.
III. CONCLUSION For the reasons stated, IT IS ORDERED that the plaintiff’s motion for class certification (ECF No. 31) is DENIED. Dated at Milwaukee, Wisconsin, this 23rd day of May, 2018.
s/Lynn Adelman____________ LYNN ADELMAN United States District Judge
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