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Kyles v. Brann

United States District Court, E.D. Wisconsin

July 25, 2017

ELLIOTT G. KYLES, Plaintiff,
v.
JEFF BRANN, BEAU G. LIEGEOIS, TIMOTHY A. HINKFUSS, and WILLIAM R. F. ACKELL, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING THE COMPLAINT (DKT. NO. 1), AND DENYING THE PLAINTIFF'S MOTION TO ADD A PARTY (DKT. NO. 8)

          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, a state prisoner who is representing himself, filed a complaint alleging that the defendants violated his constitutional rights. Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and a motion to add a party, dkt. no. 8. This decision screens the complaint and resolves the plaintiff's motions.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On June 5, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $8.30. Dkt. No. 5. The plaintiff paid the initial partial filing fee on June 16, 2017. Accordingly, the court will grant the plaintiff's motion to proceed without prepayment of the filing fee. The court will order the plaintiff to pay the remainder of the filing fee over time in the manner explained at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The law requires the court 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 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).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed 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 defendant was 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 gives a pro se plaintiff's 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)).

         A. The Plaintiff's Allegations

         The plaintiff alleges that defendant Beau G. Liegeois, a district attorney, failed to protect the plaintiff's Fourth, Fifth and Fourteenth Amendment rights. Dkt. No. 1 at 3-4. Specifically, the plaintiff explains that, despite Liegeois knowing that a police officer is not permitted to stop or pat down a person on the street without reasonable suspicion, Liegeois “went forward with this unlawful prosecution.” Id. at 4. The plaintiff also states that Liegeois failed to produce highly exculpatory evidence that would have created reasonable doubt, including the warrant and the “CAD report” leading up to and after his arrest. Id.

         The plaintiff alleges that defendant Jeff Brann, of the drug task force, illegally seized the plaintiff in a drug investigation, without any evidence that the plaintiff had committed a crime. Id. at 5. He states that Brann has indicated that he was looking for the plaintiff based on an arrest warrant, but, according to the plaintiff, Brann had no written warrant describing the person to be seized. Id. The plaintiff argues that without a warrant, there was no basis for the stop and subsequent pat-down search. Id.

         Next, the plaintiff states that defendant William R. F. Ackell, the plaintiff's public defender, “sabotaged [his] motion hearing on 4/12/16 and refused to ask the witness questions, [he] wanted him to ask.” Id. The plaintiff also states that Ackwell refused to file an interlocutory appeal and failed to defend the plaintiff to the best of his ability. Id.

         Finally, the plaintiff alleges that defendant Judge Timothy A. Hinkfuss overlooked the violation of the plaintiff's constitutional rights and denied the plaintiff's motion to suppress evidence even though the State never proved probable cause existed. Id. at 6. The plaintiff argues that Judge Hinkfuss “exceed[ed] the proper bounds of judicial discretion and triggered the Fourteenth Amendment guarantees of substantive and ...


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