United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
plaintiff, who is incarcerated at Dodge County Detention
Facility, filed a pro se complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
(Docket #1). This matter comes before the Court on the
plaintiff's motion to proceed in forma pauperis.
(Docket #2). The plaintiff has been assessed and paid an
initial partial filing fee of $20.00. 28 U.S.C. §
Court is required 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 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. §
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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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); Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in 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.
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)).
Jeffery Zientek (“Zientek”) is a police officer
with the West Allis Police Department. (Docket #1 at 2).
Defendant Scott J. Marlow (“Marlow”) is an agent
with the Drug Enforcement Administration in Milwaukee.
Id. On November 17, 2015, law enforcement executed a
search warrant on a residence, and the plaintiff was arrested
there. Id. He was informed he that he was being
charged with a state and a federal crimes. Id. at
2-3. He was then taken to the West Allis jail. Id.
The plaintiff claims that both defendants attempted to
question him, but he invoked his right to silence.
Id. The plaintiff was held in custody from November
17 to December 18, 2015. Id. at 3. He alleges that
during this month-long period, he was never brought before a
judicial officer for a probable cause determination.
Id. at 3. He further claims that the delay was
devised by law enforcement to give them time to gather
additional evidence against him. Id. The plaintiff
alleges that he was either told, or knows for a fact, that
the purported state charge was for a state parole violation.
Id. at 34. The federal charges were related to drug
and gun possession. See Id. at 3. The plaintiff
complains that his period of detention prior to a probable
cause determination exceeded the time permitted by the Fourth
and Fourteenth Amendments. Id. at 4.
Court has been unable to locate any state court records
relating to an alleged violation of the terms of the
plaintiff's parole. The exhibits submitted with his
complaint reveal that the defendants, after learning that the
plaintiff was on parole, contacted the state probation and
parole commission, which entered a detainer order against
him. In reviewing the docket for the plaintiff's federal
criminal case, the Court has determined that an indictment
was returned on December 8, 2015, charging the plaintiff with
being a felon in possession of a firearm and cocaine
distribution. U.S. v. Gabriel Griffin, 15-CR-238-2
(Docket #9). An arrest warrant was issued the next day. On
December 11, 2015, Magistrate Judge Nancy Joseph issued a
writ of habeas corpus ad prosequendum for the
plaintiff, who was being held at the Milwaukee Secure
Detention Facility, to secure his appearance for his
arraignment. Id. at (Docket #13). The plaintiff was
arraigned on December 18, 2015. Id. at (Docket #25).
The matter remains pending before Magistrate Joseph and Judge
plaintiff's two claims, one for violation of the Fourth
Amendment and one for violation of the Fourteenth Amendment,
are very different although they rest on the same facts. The
Fourth Amendment claim is based on the alleged failure of the
defendants to bring the plaintiff promptly before a neutral
magistrate for a probable cause determination after his
warrantless arrest on November 17, 2015 for federal offenses.
Typically, a person arrested without a warrant from a
magistrate is entitled to (1) a hearing (2) before a judicial
officer where a wrong identification could be addressed (3)
“promptly after arrest.” See Gerstein v.
Pugh, 420 U.S. 103, 125 (1975). Under this promptness
standard, “judicial determinations of probable cause
within 48 hours of arrest will, as a general matter, ”
suffice unless the prisoner can prove unreasonable delay.
County of Riverside v. McLaughlin, 500 U.S. 44,
56-57 (1991). If the delay exceeds 48 hours, the government
bears the burden to prove that the delay was justified.
Id. Of course, detention based on a grand jury's
indictment-itself a finding of probable cause-supplants the
need for a prompt preliminary hearing before a judicial
officer. Gerstein, 420 U.S. at 117 n.19.
second claim, for violation of the Fourteenth Amendment, is
based on the defendants' failure to ensure that the
plaintiff was provided a prompt preliminary hearing under
Morrissey on his alleged state parole violations.
The constitutional protections afforded to parolees under the
Fourteenth Amendment are far less than those given to
arrestees under the Fourth Amendment. In cases involving
parolees arrested for alleged parole violations, a
preliminary hearing “to determine whether there is
probable cause” to detain the parolee need be held only
“as promptly as convenient after arrest while
information is fresh and sources are available.”
Morrissey v. Brewer, 408 U.S. 471, 485 (1972).
Indeed, in contrast to the requirements of Gerstein
and McLaughlin, for parolees “[d]elays as long
as 24 days between the arrest and even the preliminary
hearing are constitutionally permissible, even without any
showing of emergency or extraordinary circumstance.”
Atkins v. City of Chicago, 631 F.3d 823, 834 (7th
Cir. 2011) (Hamilton, J., concurring) (citing Faheem-El
v. Klincar, 841 F.2d 712, 714-15, 723 (7th Cir. banc
1988)). “The reason we tolerate the slower and
different procedures for parolees is precisely because they
are parolees. They have already been convicted of a crime
through the full processes of the criminal law. Their
interest in liberty is much more limited than for the vast
majority of citizens who are not on parole.”
Atkins, 631 F.3d at 834 (Hamilton, J., concurring).
the probable cause determination “should be made by
someone not directly involved in the case, ” the
hearing officer “need not be a [neutral and detached]
judicial officer” and may be an administrative official
such as a parole officer. Morrissey, 408 U.S. at
485-86. However, Morrissey demands that, at a
minimum, the plaintiff be afforded notice of the preliminary
hearing and be permitted to speak and present evidence on his
behalf. See Id. at 487.
the plaintiff's allegations establish that he was
detained from the day of his arrest on November 17, 2015
until at least December 18, 2015. There is no allegation that
he received a preliminary hearing compliant with the
requirements of Morrissey or Gerstein
during this time. However, as of December 8, 2015, a federal
grand jury returned an indictment against him, thereby
rendering his detention between December 8 and December 18
constitutionally permissible. Gerstein, 420 U.S. at
117 n.19. Furthermore, the plaintiff's 21-day detention
from November 17 until December 8 was permissible based on
the alleged state parole violations. Although the plaintiff
was not afforded a Morrissey hearing, the Seventh
Circuit has held that periods longer than 21 days are allowed
between a parolee's arrest and his preliminary hearing on
alleged parole violations. Faheem-El, 841 F.2d at
714-15. Thus, the plaintiff was lawfully held in state
custody on the alleged parole violations during the period
from November 17 to December 8, 2015. As a result, all of the
time which plaintiff alleges comprised his unlawful detention
is in fact justified. His constitutional claims must
therefore be dismissed.
IT IS ORDERED that the plaintiff's motion for leave to
proceed in forma pauperis (Docket #2) be ...