United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING AND DISMISSING THE
AMENDED COMPLAINT (DKT. NO. 11)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
January 23, 2017, the plaintiff, Nicholas Gullikson, filed a
complaint seeking return of $1, 612 that was confiscated from
his residence during a drug traffic raid. Dkt No. 1.
Magistrate Judge William Duffin screened the plaintiff's
complaint, and explained that a district attorney is not
required to institute forfeiture proceedings in Wisconsin for
property derived from the commission of any crime. Dkt. No.
10 at 8. Instead, a person claiming the right to such
property can initiate return of that property through
procedures set forth in Wis.Stat. §968.20. Id.
Duffin then instructed the plaintiff to file an amended
complaint: (1) outlining the steps he took to initiate return
of his property under Wis.Stat. §968.20, and (2)
describing how the state's procedure under §968.20
was constitutionally inadequate. Id. at 10. This
matter comes before the court for screening of the amended
complaint. Dkt. No. 11.
SCREENING OF THE PLAINTIFF'S AMENDED COMPLAINT
Standard for Screening Complaints
Prison Litigation Reform Act requires federal courts 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 may
dismiss a case, or part of it, if the claims alleged are
“frivolous or malicious, ” fail to state a claim
upon which relief may be granted, or seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
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). The complaint need not plead specific
facts, and need only provide “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)).
“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).
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Id. at 679. First, the court determines
whether the plaintiff's legal conclusions are supported
by factual allegations. Id. Legal conclusions not
supported by facts “are not entitled to the assumption
of truth.” Id. Second, the court determines
whether the well-pleaded factual allegations “plausibly
give rise to an entitlement to relief.” Id.
The court gives 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)).
Facts Alleged in the Amended Complaint
September 23, 2014, the Wisconsin High Intensity Drug
Trafficking Area (HIDTA) raided the plaintiff's home.
Dkt. No. 11, ¶ 3. During the raid, HIDTA seized $1, 612
from the plaintiff's residence. Id. According to
the plaintiff, the confiscated money was not related to drug
trafficking and “did not bare any of the same serial
numbers as the money used in the control buy that justified
the raid.” Id., ¶¶ 6- 7.
December 23, 2017, the plaintiff filed a motion in the
Milwaukee County Circuit Court, seeking return of the money.
Id., ¶ 8. A Milwaukee County staff attorney
replied that the motion could not be filed because the
plaintiff had not served all of the interested parties.
Id. It is unclear what actions, if any, the
plaintiff took after receiving this letter.
Legal Analysis of Alleged Facts
state a claim under 42 U.S.C. §1983, the 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. ...