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Buchanan-Moore v. County of Milwaukee

June 29, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:07-cv-00730-CNC-Charles N. Clevert, Jr., Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.


Before BAUER, KANNE and SYKES, Circuit Judges.

In the summer of 2006, Sidney K. Gray, Jr., a mentally ill man, committed a string of crimes in Milwaukee which landed him into, then back out of, the Milwaukee County jail. The short stays and quick releases from confinement were allegedly the result of bureaucratic errors made by municipal agents. Furthermore, although Gray's history of mental illness was known to Milwaukee County authorities, he was not administered his medications while confined. Returned to the Milwaukee streets for a final time on July 22, Gray broke into a home on the city's north side. Frank Moore, a neighbor, unwittingly crossed Gray's path. When he did, Gray shot and killed him.

Moore's survivors (Appellants) sued several entities including the County of Milwaukee, alleging, in part, a deprivation of due process. The district court granted Defendants' motion to dismiss on the pleadings, which we affirm on appeal.


According to the facts alleged in the Appellants' original complaint, Gray was well known to the County of Milwaukee (County) and to the City of Milwaukee (City). He was arrested by City police officers at least 35 times on 77 charges between July 1996 and July 2006. Many of those arrests stemmed from assaultive and violent attacks by Gray; one was for criminal trespass to a dwelling. Gray was committed to the County Mental Health Complex numerous timesand placed on prescription medications. Over the course of his stays there, it became apparent to County doctors that the medications were successful in reducing Gray's assaultive behavior; however, Gray did not take the medications when left unsupervised. Consequently, the County frequently contacted Gray's family members following Gray's release.

On June 13, 2006, Gray was detained by City police after swinging a golf club at bystanders. At a civil commitment hearing, City police and County doctors testified that Gray posed an immediate threat to others because of his assaultive behavior. The judge agreed, and ordered Gray committed. Less than a week later, the County released Gray with his necessary medications but without contacting his family. The next day, City police ar-rested Gray for invading an occupied home and took him to the County jail. Although the County knew that Gray's assaultive behavior could continue if he remained unmedicated, Gray was not administered his prescribed medications.

On June 24, 2006, while Gray remained in custody, City Police Officer Terrence Bender signed a criminal trespass complaint, drafted by the District Attorney's Office. According to protocol, the task of physically delivering the complaint to be numbered and filed with the state court resided with the City police. Unfortunately, this was not done; the court never received the complaint, and Gray was released by the County on July 9, 2006.

Approximately one week later, essentially the same episode was repeated. Gray again was arrested by City police for invading an occupied home, placed in the County jail, not administered his medication, and released four days later. It is unclear why charges were not filed against Gray.

On July 22, 2006, Frank Moore crossed paths with Gray and lost his life. Gray had broken into the home next door to Moore's by kicking in the front door. Moore walked up to the lot line in the small area separating the homes; Gray emerged from the side door and shot Moore in the head.

The missing criminal complaint from June 24, 2006, resurfaced in August 2006.

Appellants brought a civil rights action under 42 U.S.C. § 1983 against the City, the County, Officer Bender and other anonymous employees, alleging that these actors violated Moore's substantive due process rights by placing Moore in a position of danger that he would not have otherwise faced.

On January 18, 2008, Defendants moved for judgment on the pleadings, arguing that there was no constitutional right to be protected from violence by a private individual. On September 15, 2008, the district court granted the motion. Appellants now challenge only the dismissal of the charge alleging a violation of civil rights by the County as set forth in the complaint. Appellants contend that the County violated Moore's civil rights by releasing Gray after a 72-hour confinement during which the County failed to provide psychiatric medications to Gray. According to Appellants, those medications would have quelled Gray's assaultive ...

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