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Cannon v. Aldana

United States District Court, E.D. Wisconsin

January 19, 2016

BILLY CANNON, Plaintiff,
JASON ALDANA, et al., Defendants.


PAMELA PEPPER, District Judge.

The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C. § 1983, alleging that the defendants violated a number of his civil rights in response to his filing requests for two John Doe investigations. Dkt. No. 1. The plaintiff paid the full filing fee of $400 on January 4, 2016. Below, the court screens the plaintiff's complaint.

Standard for Screening Complaints

The law requires the court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss part or all of a complaint if the plaintiff raises claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

To state a claim under the federal notice pleading system, the plaintiff must provide a "short and plain statement of the claim showing that [he] is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and her statement need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers "labels and conclusions" or "formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face." Id . (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted).

In considering whether a complaint states a claim, courts follow the principles set forth in Twombly. First, they must "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id . Second, if there are well-pleaded factual allegations, courts must "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that the defendants: 1) deprived of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded, " a liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Allegations in the Plaintiff's Complaint

The plaintiff alleges the defendants engaged in an "elaborate scheme" to, among other things, deny him access to the courts and to retaliate against him for exercising his First Amendment rights. Dkt. No. 1 at 18. Specifically, the plaintiff claims that in September 2012, pursuant to Wis.Stat. § 968.26, he filed with Chief Judge Jeffrey Kremers of the Milwaukee County Circuit Court[1] two John Doe petitions, asking Judge Kremers to investigate (1) Michael Guolee (Milwaukee County Circuit Court Judge), and (2) Dean Newport (Milwaukee Police Officer), Michael Kurowski (of the Milwaukee Police Department), Timothy Gray (Special Agent with the Wisconsin Department of Justice), John Chisholm (Milwaukee County District Attorney), Grant Hubener (Assistant District Attorney), and Jeremiah Van Hecke (Assistant District Attorney). Dkt. No. 1 at 13. The plaintiff states that Judge Kremers and his clerk are the only ones that maintain the John Doe files. Id. at 13.

The plaintiff alleges that Judge Kremers notified Chisholm of the petition against him, which was improper under the statute. Id . The plaintiff also alleges that Chisholm notified Hubener and Van Hecke, who notified Newport, Kurowski, and Gray. Id . The plaintiff maintains that Newport, Kurowski, and Gray then asked Jason Aldana, the Security Director at the Racine Correctional Institution ("RCI"), "to confiscate all of plaintiff's legal material[s] for their criminal investigation." Id . The plaintiff alleges the defendants sought to "destroy the evidence and exhibits of the John Doe Petition." Id. at 13.

The plaintiff alleges that on October 10, 2012, at Aldana's direction, RCI staff confiscated all of the plaintiff's "legal material[s], legal files, photos, incoming and outgoing mail, and any other paper documents." Id. at 19. Newport allegedly took "everything that he thought would be detrimental to the John Doe Defendants including himself" and returned the remaining materials to "Aldana with a thank you letter on government letterhead claiming to be an ATF agent." Id. at 14. Aldana returned the remaining materials to the plaintiff on October 15, 2012. Id. at 20. The plaintiff indicates that the materials Newport took were "the original two John Doe Petitions, the unopened certified mail to various judges, judicial commission, certified notary documents to the internal affairs with the MPD regarding the misconduct of said defendants, letters from Tammy Baldwin, among other legal documents." Id. at 14-15. The plaintiff does not indicate whether Newport ever returned these materials, but the plaintiff contends that he kept copies of everything that was taken.

The plaintiff maintains that he had not had any contact with Newport for nearly two years, "so the lie told to the institution about him conducting a criminal investigation was to manipulate the institution...." Id. at 15. The plaintiff claims that Newport and others used subterfuge to obtain his legal materials and transformed Aldana into a "stalking horse." Id. at 17.

On October 26, 2012, Judge Kremers declined to open a John Doe investigation against Judge Guolee, and on November 16, 2012, declined to open an investigation into the others. Id. at 15. The plaintiff argues that these dismissals were improper. Id. at 15-16.

Analysis of the Plaintiff's Allegations

As a threshold matter, the court notes that the plaintiff purports to sue the defendants in both their personal and official capacities. The distinction between personal capacity and official capacity is significant. "Personal-capacity suits seek to impose liability upon a government official for actions he takes under color of state law.... Official capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent." Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991) (quoting Kentucky v. Graham, 473 U.S.159, 166 (1985)). In other words, a personal-capacity suit is appropriate when an official, acting under the color of state law, personally deprives a plaintiff of a federal right. Id . On the other hand, an official-capacity suit is appropriate only when an individual is executing or implementing the official policy or custom of a government entity. Id . The plaintiff's allegations do not indicate or imply the existence of an official policy or custom. Instead, the plaintiff alleges that each defendant acted on his or her own to deprive the plaintiff of his constitutional rights. Accordingly, the plaintiff has not stated claims against any of the defendants in their official capacities.

Next, the court notes that on pages 6-7 of his complaint, the plaintiff has named as defendants Edward Wall (the Secretary of the Wisconsin Department of Corrections, Dkt. No. 1 at 12), John Paquin (warden of the Racine Correctional Institution, Dkt. No. 12), Audrain Brown (whom the plaintiff identifies as a "Unit Manager at the Racine Correctional Institution, " Dkt. No. 1 at 12), Nancy Padgett (whom the plaintiff identifies as an inmate complaint examiner at Racine Correctional, Dkt. No. 1 at 12), and Michael Tobin (whom the plaintiff identifies as a "Fire and Police Commissioner for the City of Milwaukee, Dkt. No. 1 at 11). Dkt. No. 1 at 6-7.

As explained by the Seventh Circuit Court of Appeals, "[a] plaintiff bringing a civil rights action must prove that the defendant personally participated in or caused the unconstitutional actions." Alejo v. Heller, 328 F.3d 930, 936 (7th Cir. 2003). Merely "ruling on a grievance does not make the actor personally responsible-it does not cause or contribute to the violation.'" George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). With regard to these defendants, the plaintiff alleges only that he complained to them-informally, via written complaint, or via the inmate complaint process-about the misconduct of officers and/or the removal of his legal materials and that he received either no response or responses he deemed unsatisfactory. He does not allege that any of these defendants were involved in the alleged misconduct or the removal of his legal materials. ...

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