Appeals Court reinstates two lawsuits over jail deaths in Milwaukee County

A federal appeals court on Monday reinstated two civil rights lawsuits over deaths in Milwaukee County jails, those of Alexander Orlowski and James Franklin Perry.

Perry died in 2010 at the Milwaukee County Jail from an epileptic seizure. When he was arrested at 2:30 a.m., he told police he hadn't had his nightly dose of anti-seizure medication. About 12 hours later, he was taken to Aurora Sinai Hospital after he fell from a bench at the Milwaukee police lockup and hit his head during a seizure. He was given anti-seizure medication and discharged back to police at 6:45 p.m.

Officers had to wheel Perry from the hospital, but the nurses there assured them lethargy was normal after the drugs are administered. 

Back at the lockup, Perry began defecating and urinating on himself, drooling and saying he couldn't breathe. Officers put a spit hood on him and one told Perry if he was going to act like an animal, he'd be treated like one.

When he was finally transferred to the County Jail, in shackles, about 8 p.m. no one told jail staff about what Perry had been through in the previous hours. Still, a nurse determined he was too sick to be booked and called an ambulance but Perry died in the prebooking area.

The late U.S. District Judge Rudolph Randa granted summary judgment to the county, finding Perry had never actually been in its custody and that even if he was, the officials had qualified immunity. Furthermore, he found plaintiff attorneys should have known their claims would fail and fined them $288,000.

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Judge Anne Williams concluded that in Perry's case, "we find that factual disputes abound that require the case to be submitted to a jury."

The decision also vacated the sanctions Randa had imposed on the plaintiff's lawyers.

The ruling was not surprising, given the tone of judges' questions during oral arguments in the case last winter. Judge Richard Posner, who voiced harsh criticisms of officials in the case, recently retired. Williams decided the case with Judge Daniel Manion, a quorum of the original three-judge panel of the Chicago-based 7th Circuit Court of Appeals. 

Alexander Orlowski, 20, died of a methadone overdose at the House of Correction in 2007. His family sued in 2013, blaming his death on the chaotic administration of facility at the time, when workers failed to stop drug trafficking going on inside.

Though a guard and supervisor saw Orlowski was having trouble breathing while asleep, they did not seek medical help and he died three hours later. That amounted to "deliberate indifference" to his medical needs, and a violation of rights against cruel and unusual punishment, the lawsuit claimed.

Williams, who also wrote the Orolowski decision, again found summary judgment — granted by U.S. District Court Judge Pamela Pepper — improper.

"The record demonstrates that there is a material dispute of fact as to whether (jail staff) were deliberately indifferent to Orlowski's severe medical condition" and that a jury should decide that dispute, she wrote.

Joining Williams opinion was Judge Frank Easterbrook and U.S. District Judge Gary Feinerman, sitting by designation as a circuit judge in the case.

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