Ty’shawn Kaviontae Gilmore v. Brian Anderson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 15, 2023*
Decided June 22, 2023
Before
DIANE S. SYKES, Chief Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2989
TY’SHAWN KAVIONTAE GILMORE,
Plaintiff-Appellant,
v.
BRIAN ANDERSON, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 22-C-30
William C. Griesbach,
Judge.
O R D E R
Ty’Shawn Gilmore appeals the denial of multiple motions for leave to amend his
complaint about the conditions of confinement at the Milwaukee County Jail. The
district judge concluded that Gilmore’s complaint under 42 U.S.C. § 1983, which alleged
that jail officials violated his constitutional rights by keeping him in his cell for more
than 40 hours at a time on several occasions, did not state a claim. The judge then
determined that Gilmore’s proposed amendments would be futile. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2989 Page 2
Because the district judge dismissed the case at the pleading stage, we accept
Gilmore’s factual allegations as true, drawing reasonable inferences in his favor.
See Peterson v. Wexford Health Sources, Inc., 986 F.3d 746, 749 n.1, 751 (7th Cir. 2021). Four
times in 2021, Gilmore was locked in his jail cell for over 40 hours without recreation
time: 42.5 hours starting September 29; 40 hours starting October 9; 42.5 hours starting
October 13; and 43.5 hours starting October 15. These extended periods of lockup—
which were not imposed for disciplinary reasons or because of extraordinary
circumstances—caused him physical discomfort, anxiety, and mental trauma.
In January 2022, Gilmore sued the jail, asserting that it was unconstitutional to
keep him in his cell without releasing him for at least 1 hour of recreational time every
24 hours. The magistrate judge dismissed the complaint without prejudice at screening,
see 28 U.S.C. § 1915A, because the jail was not a proper defendant; it is neither a
“person” under § 1983 nor an entity that can be sued separately from Milwaukee
County. See Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).
A few days later, Gilmore amended his complaint, identifying four correctional
officers (two by name and two John Does) as defendants. This time, the magistrate
judge determined that Gilmore stated a conditions-of-confinement claim sufficient to
survive screening, and the case went to the district judge. The defendants moved to
dismiss the amended complaint, partly on the ground that Gilmore did not allege that
they were personally involved in keeping him from recreation time outside his cell.
Before the judge ruled on the defendants’ motion, Gilmore moved for leave to
amend his complaint in three ways. First, he sought to “drop[]” the individual
defendants and sue just Milwaukee County because, according to Gilmore, the officers
did not control when he could leave his cell, but Milwaukee County caused his rights to
be violated through its policies, customs, and failure to train its employees. Second,
Gilmore alleged that, two more times since his original filing, he had been kept in his
cell for over 24 hours: 46 hours starting June 5, 2022, and 48 hours starting July 14, 2022.
Third, Gilmore asserted that facility-wide lockdowns had caused each of the six
extended lockups. His proposed second amended complaint reflected these changes.
The judge then granted the motion to dismiss the first amended complaint. He
explained that the request to drop the defendants named in that pleading “moots the
defendants’ motion to dismiss and ends the case unless the Court grants his motion for
leave to file a second amended complaint.” The judge then concluded that further
amendment would be futile because the proposed second amended complaint did not

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No. 22-2989 Page 3
state a claim. First, the lockups that Gilmore described were not serious enough
deprivations to state a plausible conditions-of-confinement claim under the Eighth or
Fourteenth Amendment (it was not then clear whether Gilmore had been convicted of a
crime). Second, his allegations did not allow the inference that Milwaukee County was
responsible for the alleged deprivation through its policies, practices, or failure to train
its employees. See generally Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Third,
Gilmore had failed to fix the complaint “even after receiving two screening orders and a
motion to dismiss specifically identifying the deficiencies in his prior complaints.” The
judge therefore dismissed the first amended complaint for failure to state a claim,
denied the motion for leave to file a second amended complaint, and entered final
judgment for the defendants on October 5, 2022.
Within 28 days of the judgment, see F ED. R. C IV. P. 59(e), Gilmore moved for leave
to file an amended complaint, which was effectively a motion to reconsider. Gilmore
repeated the allegations from his previous request to amend, adding only that he was a
pretrial detainee and that there was a “direct causal link” between a “Milwaukee
County Policy Statement” and a violation of his Fourteenth Amendment rights. The
judge denied the motion on October 31, explaining that Gilmore’s allegations still failed
to state a claim because facility-wide lockdowns were an administrative concern and
Gilmore “still does not include any allegation suggesting that the denial of his
recreation time was intended or acted as a punishment for something he had done.” On
November 2—still within 28 days of the judgment—Gilmore simultaneously filed a
notice of appeal and another motion for leave to amend his complaint, which the
district judge denied a month later, on December 2, “for the same reasons it denied his
first and second motions.” Because both post-judgment motions were filed within the
time prescribed by Rules 4(a)(4)(A)(iv) and 4(a)(4)(A)(vi) of the Federal Rules of
Appellate Procedure, the notice of appeal became effective on December 2. See F ED. R.
A PP . P. 4(a)(4)(B)(i); Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013). But
the notice of appeal covered just the dismissal (including the first denial of leave to
amend) and the denial of the first post-judgment motion because the notice of appeal
preceded, and thus did not designate, the denial of the second post-judgment motion as
an order on appeal. See F ED. R. A PP . P. 3(c)(1)(B). A second or amended notice of appeal
was required for that order. See F ED. R. A PP . P. 4(a)(4)(B)(ii).
On appeal, Gilmore does not challenge the dismissal of his first amended
complaint but contends that he should have been allowed to file the proposed second
amended complaint. He argues that his allegations would state a plausible conditions-
of-confinement claim against Milwaukee County. We review the denial of his motions
for leave to amend for abuse of discretion. See Kap Holdings, LLC v. Mar-Cone Appliance

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No. 22-2989 Page 4
Parts Co., 55 F.4th 517, 528 (7th Cir. 2022). But because the district judge determined that
amendment would be futile, our review includes a de novo assessment of whether the
proposed second amended complaint could survive under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See id. at 529 (citing Runnion ex rel. Runnion v. Girl Scouts of
Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015)); see also Ashcroft v. Iqbal,
556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Gilmore clarified that he was a pretrial detainee, and so his claim arises under
the Due Process Clause of the Fourteenth Amendment. See Hardeman v. Curran, 933 F.3d
816, 823 (7th Cir. 2019). We therefore ask whether he alleged conditions that were
“objectively unreasonable and ‘excessive in relation to’ any legitimate non-punitive
purpose.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)).
He did not, despite multiple opportunities. The Due Process Clause protects
pretrial detainees from the state’s exercise of power that “so restrains an individual's
liberty that it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs—e.g., food, clothing, shelter, medical care, and
reasonable safety.” Hardeman, 933 F.3d at 825. Leaving aside whether Gilmore
sufficiently alleged a basis for municipal liability under Monell, he does not say what
basic human needs were curtailed by spending 40 to 48 hours in his cell six times over
an 11-month period. Regardless, his core allegation that he periodically spent two days
in his cell, without more, does not approach the kind of objectively severe condition
that supports a constitutional claim. See, e.g., Budd v. Motley, 711 F.3d 840, 842–843
(7th Cir. 2013); Murphy v. Walker, 51 F.3d 714, 720–21 (7th Cir. 1995); see also Hardeman,
933 F.3d at 819–21 (affirming denial of qualified immunity for defendants who shut off
jail’s water for three days, causing plaintiffs to be surrounded by excrement and
inducing illness). In particular, “short-term denials of exercise may be inevitable in the
prison context and are not so detrimental as to constitute a constitutional deprivation.”
Delaney v. DeTella, 256 F.3d 679, 683–84 (7th Cir. 2001) (applying objective component of
Eighth Amendment analysis). Accordingly, Gilmore’s proposed complaint did not state
a claim, and the district judge did not abuse his discretion by denying leave to amend
on futility grounds. See Bernacchi v. First Chi. Ins. Co., 52 F.4th 324, 330–31 (7th Cir. 2022).
Finally, Gilmore’s post-judgment request to amend and proposed amended
complaint simply repeated the factual allegations and legal theories that the judge had
ruled insufficient in Gilmore’s previous attempts. Therefore, denying the motion was
not an abuse of discretion. See Cincinnati Life Ins. Co., 722 F.3d at 953.
AFFIRMED

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