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Cannon v. Gray

United States District Court, E.D. Wisconsin

July 7, 2016

BILLY CANNON, Plaintiff,
v.
TIMOTHY GRAY, et al., Defendants.

         DECISION AND ORDER VACATING FEBRUARY 5, 2016 SCREENING ORDER (DKT. NO. 4), SCREENING AMENDED COMPLAINT (DKT. NO. 7), DISMISSING AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, DENYING AS MOOT THE PLAINTIFF’S MOTION FOR A DECISION AND ORDER (DKT. NO. 9), AND DENYING AS MOOT THE PLAINTIFF’S MOTION FOR PHONE CONFERENCE (DKT. NO. 10)

          HON. PAMELA PEPPER United States District Judge

         On November 16, 2015, the plaintiff, who is a prisoner at Stanley Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. The plaintiff paid the full filing fee the same day that he filed his complaint. The court screened the complaint on February 5, 2016, pursuant to 28 U.S.C. §1915A(a), and dismissed it based on the plaintiff’s failure to state a claim. Dkt. No. 4. On February 9, 2016, the deputy clerk entered judgment, noted that the plaintiff had incurred a strike under 28 U.S.C. §1915(g), and closed the case. Dkt. No. 5.

         On February 18, 2016, the plaintiff filed a “Notice of and Motion for Judicial Question.” Dkt. No. 6. The plaintiff explained that he received the court’s February 9 decision dismissing the original complaint; however, he was uncertain whether the decision also applied to the amended complaint that he had filed on January 6, 2016. Id. At the time the plaintiff filed his motion, the court had no record of the plaintiff ever having filed an amended complaint. After a little digging, however, the court determined that the clerk of court’s office had accidentally docketed plaintiff’s amended complaint, which he intended to file in this case, as an exhibit to a motion that the plaintiff filed in another case.

         This docketing error occurred, in part, because the plaintiff mailed multiple filings for different cases in a single envelope-in fact, not only were the filings in a single envelope, they were also all stapled together. In an attempt to avoid future problems such as the one that occurred here, the court advises the plaintiff to mail materials he intends to file in different cases in separate envelopes.

         In this case, the court believes that the cleanest procedure is to vacate its previous decision dismissing the original complaint and to screen the plaintiff’s amended complaint, which it would have done if the clerk’s office had realized that the amended complaint was meant to be filed in this case.

         I. SCREENING OF THE PLAINTIFF’S AMENDED COMPLAINT

         A. Standard for Screening Complaints

         The law requires the court to screen complaints, including amended 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 his 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 North 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)).

         B. Key Facts Alleged in the Complaint

         In the amended complaint, the plaintiff alleges that State Trooper David Schmidt arrested him without a warrant on February 24, 2011. Dkt. No. 7 at 8. The plaintiff alleges that Schmidt claimed to have stopped the plaintiff for running a yellow/red light, but states that he believes that the true reason Schmidt stopped the plaintiff was because Schmidt had been briefed earlier in his shift about an active arrest warrant. Id.

         The plaintiff identifies alleged inconsistencies in Schmidt’s arrest report, including whether Schmidt had a physical copy of the warrant when he arrested the plaintiff and the timing of when Schmidt read the warrant to the plaintiff. Id. The plaintiff also details his many efforts to obtain a copy of the warrant. Id. at 9-11; 13-14. The plaintiff indicates that at the end of his report, Trooper Schmidt stated that a copy of the report had been faxed to defendant Timothy Gray, an agent with the Wisconsin Department of Justice’s Criminal Investigation Division. Id. at 9. From this fact, the plaintiff deduced that it was defendant Gray who briefed Schmidt about the active warrant. Id. at 13.

         After arresting the plaintiff, Schmidt transported the plaintiff to the Waukesha County Jail, where the plaintiff stayed from February 24, 2011, until February 28, 2011. Id. at 11. The plaintiff states that no “neutral and detached magistrate” made “a judicial determination of probable cause.” Id. On February 28, 2011, defendant John Doe Gunn of the Milwaukee County Sheriff’s Office transported the plaintiff from the Waukesha County Jail to the Milwaukee County Jail, where he stayed until March 8, 2011. Id.

         The plaintiff alleges that he was held illegally at the Milwaukee County Jail on a “captain’s hold” until he was taken before a judicial officer.[1] Id. The plaintiff claims that defendants Grant Hubener, Karen Lobel, and John Chisholm of the Milwaukee County District Attorney’s Office produced for the hearing a criminal complaint alleging probable cause (which the plaintiff argues did not exist). Id. at 12.

         The plaintiff claims that Schmidt arrested him illegally, without probable cause; that defendant Gray gave Schmidt the basis for stopping the plaintiff; that defendant Gunn participated in the illegal detention by transporting the defendant; that a John Doe captain falsely placed a hold on him; and that the members of the Milwaukee County District Attorney’s Office falsely produced a complaint that alleged that there was probable cause when there was not. He also alleges that these defendants, along with Eric Severson (the Waukesha County Sheriff), Daniel Layber (defendant Gray’s supervisor), and David Clark[2] (the Milwaukee County Sheriff) conspired to “maliciously detain the plaintiff without probable cause or a Judicia[l] Determination of probable cause.” Id. He alleges that these defendants violated his First, Fourth, Eighth and Fourteenth Amendment rights. Id. at 4.

         The plaintiff also alleges that on March 17, 2009, Gray entered the plaintiff’s home “without a warrant equipped with a surreptitious recording device to secretly record the plaintiff for information without the approval of the District Attorney John Chisholm and without the approval of the Attorney General JB Van Holland [sic], in violation of the Title III Omnibus Crime Control and Safe Street Act of 1968, and Title 18 U.S.C. §2510-2520.” Id. at 16. The plaintiff “asserts that on January 14, 2008, Special Agent Timothy Gray swore out a petition in affidavit to District Attorney John Chisholm . . .” and that “on January 16, 2008, Chief Judge Kitty Brennen, signed the requested wiretap order made by Special Gray and signed by District Attorney John Chisholm . . . .” Id. at 16-17. The plaintiff nonetheless argues that Gray’s actions violated the cited statute because “Attorney General JB Van Holland [sic] the Attorney General for the State of Wisconsin at the time of the constitutional violation” did not approve the wiretap order. Id.

         The plaintiff lists three counts in his complaint, but each of these contains multiple causes of action. The court will ...


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