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Hewing v. Ozelie

United States District Court, E.D. Wisconsin

December 28, 2016



          HON. PAMELA PEPPER United States District Judge.

         The 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 below.


         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).

         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 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. Facts Alleged in the Second Amended Complaint

         On 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.

         The 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.

         C. Analysis

         The 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. ...

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