United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING THE PLAINTIFF'S
SECOND AMENDED COMPLAINT (DKT. NO. 23)
PAMELA PEPPER United States District Judge.
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the “Milwaukee Police Department”
violated his Fourth Amendment rights during his arrest. Dkt.
No. 1. On September 3, 2015, the court ordered the plaintiff
to file an amended complaint, to address several problems
that the court identified in the original complaint. Dkt. No.
13. The plaintiff filed an amended complaint on September 24,
2015, dkt. no. 15, but after the court reviewed it, the court
concluded that the amended complaint hadn't resolved the
issues it had identified, and it ordered the plaintiff to
file a second amended complaint. Dkt. No. 16. Specifically,
the court explained that the plaintiff might have a Fourth
Amendment claim against someone based on his
allegations that he was arrested without probable cause and
was not given a hearing within forty-eight hours, but that
the “Milwaukee Police Department” was not a
suable entity under §1983. See Dkt. Nos. 16,
19, 22. On October 17, 2016, the plaintiff filed a seconded
amended complaint, dkt. no. 23, which the court screens
SCREENING OF PLAINTIFF'S 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).
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)
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)).
Facts Alleged in the Second Amended Complaint
November 26, 2014, Milwaukee County Police Officers Allan
Tenhaken and Thomas Ozelie arrested the plaintiff without a
warrant on the 2400 block of West Wisconsin Avenue. Dkt. No.
23 at 1. “The Milwaukee Police had no probable
cause” to arrest the plaintiff, and “the
Milwaukee County Justice System” did not follow
“the proper steps and procedures . . . in prosecuting
the plaintiff.” Id. The plaintiff “was
charged with two offenses, processed to the Milwaukee County
Jail, [b]ooked and t[a]k[en] through the procedures in
prosecuting [him.]” The plaintiff's defense
attorney, Richard Hurt, asked that the District
Attorney's office send him a copy of the probable cause
determination. Id. “[T]hey indicated that they
did not have one.” Id. Attorney Hurt also went
to the District Attorney's office to “personally
review the court file in trying to obtain the probable cause
and judicial determination form” and he
“determined that there was ‘no such file' in
the court file.” Id.
plaintiff goes on to allege that “[a]ccording to the
original CR-215 document it was not properly endorsed by a
judge or a commissioner and is a direct violation of the
‘Riverside Rule.'” Id. 2-3. “A
‘new' probable cause and judicial determination
form was ‘mysteriously' found months
later…and could not have been the authentic original
copy of the probable cause statement and judicial
determination form which was not endorsed by a judge or
commissioner.” Id. at 3. The “new”
probable cause determination was endorsed by Commissioner
J.C. Moore. Id.
Fourth Amendment protects an individual's right to be
“secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, ” and
provides that “no [w]arrants shall issue, but upon
probable cause.” U.S. Const. Amend. IV. Following a
warrantless arrest, the Fourth Amendment requires timely
judicial determination of probable cause. Gerstein v.
Pugh, 420 U.S. 103, 114 (1975). A probable cause
determination made within forty-eight hours of arrest is
presumptively “prompt.” County of Riverside
v. McLaughlin, 500 U.S. 44, 56 (1991). After forty-eight
hours, the burden shifts to the government to demonstrate the
existence of a bona fide emergency or other
extraordinary circumstance to justify the delay. Id.