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Liederbach v. City of Milwaukee Police Department

United States District Court, E.D. Wisconsin

August 17, 2016

DAVID LIEDERBACH, Plaintiff,
v.
CITY OF MILWAUKEE POLICE DEPARTMENT, Defendant.

          ORDER

          LYNN ADELMAN United States District Judge

         The plaintiff, David Liederbach, who is confined at the Milwaukee County Jail, is representing himself. He filed a complaint alleging that officers of the City of Milwaukee Police Department used excessive force against him. This matter comes before the court on plaintiff’s petition to proceed without prepayment of the filing fee (in forma pauperis). He has been assessed and paid an initial partial filing fee of $344.15. See 28 U.S.C. § 1915(b)(1).

         The court shall 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 a complaint or portion thereof if the prisoner has raised 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).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers mere “labels and conclusions” or a “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 should follow the principles set forth in by Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “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: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village 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. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Complaint Allegations

         Plaintiff alleges that on July 24, 2014, Milwaukee Police Officers Aaron V. Frantal and Matthew L. Davis approached him and “immediately confronted me aggressively uncoerced [sic].” (ECF No. 1 at 2.) Officer Frantal attempted to grab plaintiff and Officer Davis attempted to spray him with O.C. spray. Plaintiff blocked the spray. A physical altercation arose among the three of them. The officers began hitting plaintiff and he continued to defend himself. The officers used a taser gun on plaintiff several times. Eventually a third officer, Officer Vargas-Ramos, arrived and tasered plaintiff. Soon other officers arrived and continued the assault on plaintiff, grabbing and hitting him relentlessly. When plaintiff could no longer sustain himself he succumbed to their weight. Plaintiff was arrested and incarcerated for several days until his release.

         Plaintiff alleges that he continues to suffer physically and has been diagnosed with PTSD from the incident. He does not know why the officers assaulted him.

         For relief, plaintiff seeks monetary damages from defendant City of Milwaukee Police Department for the unnecessary use of excessive force, false imprisonment, injury, and misconduct in public office.

         Discussion

         Plaintiff’s allegations implicate his rights under the Fourth Amendment to the United States Constitution for the following claims: excessive force, false arrest, and false imprisonment.

         However, the only defendant in this case is the City of Milwaukee Police Department. Because plaintiff seeks damages based on the police officers’ actions against him, he should name the individual officers ...


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