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Lawsuits Challenge Treatment of Pregnant Prisoners at Milwaukee County Jail

by Matt Clarke

Five women who served time at Wisconsin’s Milwaukee County jail have filed lawsuits against the county and former Sheriff David Clarke, Jr., alleging mistreatment while they were pregnant – including shackling, the death of one child and the stillbirth of another.

Shadé Swayzer was eight months pregnant when she was booked into the Milwaukee County Justice Facility in 2016, after she refused to leave a motel room. The severely mentally ill woman was placed in a cell in the jail’s maximum-security section; eight days later, she went into labor at around midnight. When she informed a guard that her water had broken and she was in labor, the guard laughed and left her locked alone in a “cold, dark, unsanitary maximum security cell,” her suit claims. About four hours after that she gave birth to a baby girl, Laliah, who “cried profusely.”

Two hours later a guard discovered Laliah in apparent medical distress. The guard waited nine minutes to report a medical emergency, then another nine minutes passed before Milwaukee Fire Department Emergency Medical Technicians arrived.

Though a hospital with a neonatal care unit was just one-third of a mile away from the facility, EMTs and jail personnel spent 45 minutes attempting to resuscitate Laliah on a metal table in a common room area. She was pronounced dead at the hospital at 6:55 a.m. Ten minutes later, Swayzer was finally transported to the hospital.

With the assistance of Wauwatosa attorney Jason S. Jankowski, Swayzer filed a lawsuit against then-Sheriff Clarke, jail personnel and Armor Correctional Health Care – the contract medical provider at the jail – alleging wrongful death, failure to train staff, negligence and civil rights violations.

Jankowski had previously filed requests for public records related to Swayzer’s incarceration and medical treatment with both the jail and Armor. Armor provided the medical records but jail staff failed or refused to produce the documents, so a separate state mandamus action was filed to force disclosure of the requested records, including “booking, classification, officers’ names, housing logs, incident reports, internal affairs investigations, etc.”

The county moved to dismiss the lawsuit, arguing that Laliah had been stillborn. See: Swayzer v. Clarke, Milwaukee Co. Circuit Court (WI), Case No. 2016CV0008964 (Mandamus No. 30952).

Jankowski also represents former prisoner Jennifer Jawson in a separate lawsuit filed against the jail in April 2017, after the 35-year-old’s unborn child died in utero near the end of her pregnancy. The Milwaukee County Medical Examiner’s office was not asked to perform an autopsy following the 2016 stillbirth, and Jawson’s suit does not claim what caused it.

Rather, she alleges that jail medical staff made two medication errors, denying her methadone for her opioid addiction and giving her Tylenol 3 instead. There is general consensus among medical professionals that methadone is safe for pregnant women but much less agreement about the safety of Tylenol 3 for expecting mothers.

Jankowski claims that Jawson had seen a doctor – who found no health problems with her unborn child – just before her incarceration for violating probation related to a 2015 fraud conviction. Each of her first six days in jail, Armor staff checked and found a healthy fetal heartbeat. Failing to find one the next day, though, they sent Jawson to a hospital, where her child was stillborn.

“If you look at the facts and the records in totality,” said Jankowski, “the baby was a healthy, viable fetus when [Jawson] came in [to the jail].”

The case was complicated by a bureaucratic technicality: Jawson was apparently released from custody while in the ambulance transporting her to the hospital. As a result, jail officials were freed from their usual obligation to report her baby’s death to the state Department of Corrections and ask for an investigation.

A third lawsuit was filed against Milwaukee County in August 2017, claiming mistreatment of another pregnant prisoner.

Rebecca Terry, 35, gave birth to her son at the jail in 2014, after her pleas for help were ignored and she was left in a dirty cell without medical care for a week, her suit claims. Following a brutal three-hour delivery, Terry and her newborn son were transferred from the jail to a hospital, but because she was still in custody she was shackled to her bed for a week while receiving post-natal care.

Her complaint against the county and Armor, which is ongoing, asks for unspecified damages for “deliberate indifference, supervisory liability, failure to intervene and violation of due process.” See: Terry v. County of Milwaukee, U.S.D.C. (E.D. Wisc.), Case No. 2:17-cv-01112-DEJ.

The three lawsuits are in addition to another filed in March 2017 by former jail prisoner Melissa Hall. As previously reported in PLN, her complaint seeks class-action status to represent all pregnant prisoners at the jail in seeking compensation for being shackled during labor and delivery. [See: PLN, Sept. 2017, p.52].

And in yet another lawsuit, on June 7, 2017, a federal jury awarded $6.7 million in damages to a former jail prisoner, Shonda Martin, who had been shackled while she was in labor and also repeatedly raped by a guard. Martin’s attorneys have since moved for an additional $700,000 in fees and costs.

Martin was 19 years old and pregnant with her first child when she was booked into the Milwaukee County jail in 2013. During her stay she drew the attention of guard Xavier D. Thicklen, who began making unwanted sexual advances toward her. Martin was repeatedly summoned from her housing unit for sham attorney visits or medical appointments set up by Thicklen, which gave him an opportunity to try to coerce her into sexual activity. Martin alleged that he raped her five times, three while she was pregnant and twice after she gave birth.

When she went into labor at the jail, Martin was handcuffed and shackled with a belly chain connected to leg irons and cuffs. While delivering her baby she was handcuffed to the bed, but the leg restraints were replaced as soon as the baby arrived. Thereafter, while in the hospital, when she got up to use the bathroom she was shackled and handcuffed with a belly chain.

The jury found that, while acting within the scope of his employment for the County of Milwaukee, Thicklen had forcibly sexually assaulted Martin and awarded her $1.7 million in compensatory damages plus $5 million in punitive damages. The jury further found that the use of restraints during her labor, delivery and post-partum care at the hospital was not rationally related to any non-punitive governmental purpose or was excessive in relation to that purpose, but did not award additional damages on that claim.

The county filed a motion for another trial, citing new evidence obtained from Ivan Boyd, 37, now incarcerated at the Wisconsin Secure Program Facility, who claimed that while held at the jail he had helped Martin set Thicklen up by falsely accusing him of rape.

Boyd, reportedly the father of Martin’s child, initially asked to be paid for providing information to help the county, but eventually signed a sworn statement without receiving compensation. Boyd had also contacted Martin’s attorneys, seeking money from the jury award while threatening to provide evidence to the county.

In December 2017, the federal district court described Boyd’s claims as a “thinly veiled extortion scheme” and “utterly lacking in credibility,” and denied the county’s motion for a new trial. “The fact that Boyd ultimately provided his current testimony without payment does little to rehabilitate him,” the court wrote. “In light of the gaping holes in Boyd’s tale and the manner in which his testimony was obtained, no reasonable jury would ever believe him.”

The county has since filed an appeal with the Seventh Circuit, which remains pending. See: Doe v. County of Milwaukee, U.S.D.C. (E.D. Wisc.), Case No. 2:14-cv-00200-JPS. 

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Related legal cases

Terry v. County of Milwaukee

Swayzer v. Clarke

Doe v. County of Milwaukee