United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER United States District Judge
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.
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.
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.
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.
SCREENING OF THE PLAINTIFF’S AMENDED COMPLAINT
Standard for Screening Complaints
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).
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
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.
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)).
Key Facts Alleged in the Complaint
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
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.
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.
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. 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.
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 (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.
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.
plaintiff lists three counts in his complaint, but each of
these contains multiple causes of action. The court will