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Carter v. Kuspa

United States District Court, E.D. Wisconsin

August 31, 2017

MARVIN L. CARTER, Plaintiff,
v.
JOHN KUSPA, WILLIAM J. ESQUEDA, LAURA A. CRIVELLO, and MILWAUKEE POLICE DEPARTMENT, Defendants.

          ORDER

          J.P. Stadtmueller, U.S. District Judge.

         Plaintiff, who is incarcerated at Dodge Correctional Institution, 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 Plaintiff's motion to proceed in forma pauperis. (Docket #2). Plaintiff has been assessed and has paid an initial partial filing fee of $15.33. 28 U.S.C. § 1915(b)(4).

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. Id. § 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. Id. § 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); 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. 2011).

         To 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 Atl. 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. “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. The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.

         In 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 then “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: (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); 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)).

         Plaintiff alleges that during the afternoon of February 16, 2016, masked police officers dressed in Army fatigues entered his home in Milwaukee. (Docket #1 at 2). When they entered the house, he, a woman, and her children were all sleeping inside. Id. The woman awoke at the sound of the officers moving around the house, and she alerted Plaintiff. Id. at 2-3. A man then came to their bedroom door and yelled for them to come out. Id. at 3. Plaintiff and the woman exited the bedroom and found two or three masked police officers pointing guns at them. Id. The officers took them to the living room along with the children. Id. at 4.

         Plaintiff was then handcuffed. Id. Plaintiff inquired why the officers were there and why he was being handcuffed, and he was told that someone else would come to speak with him. Id. About five minutes later, Detectives John Kuspa (“Kuspa”) and William Esqueda (“Esqueda”) entered the living room, and Plaintiff repeated his questions. Id. He also asked whether the officers had a search warrant. Id. Kuspa responded that they did have a warrant, and they retrieved it. Id. at 4-5. However, Kuspa only read the warrant to Plaintiff and did not provide him a copy nor show him the copy in his hands. Id. at 5. After he read it, Kuspa placed the warrant face-down on a table in the living room. Id.

         Kuspa then stated to Plaintiff, “You know why we are here, ” to which Plaintiff responded in the negative. Id. Kuspa went on, accusing Plaintiff of making six controlled drug buys, at least one of which occurred at the home. Id. Plaintiff denied any wrongdoing. Id. Plaintiff was thereafter taken to the Milwaukee County Jail and charged by criminal complaint with four counts: (1) possession with intent to distribute cocaine; (2) possession with intent to distribute heroin; (3) possession of a firearm by a felon; (4) possession with intent to deliver narcotics. Id. Those charges were brought in Milwaukee County Circuit Court in case number 2016-CF-762.

         Publicly available records show that Plaintiff went to trial on these charges from February 6 to 8, 2017. On February 8, Plaintiff pleaded guilty to counts two and three of the criminal complaint-the heroin and firearm charges. As a result, the Milwaukee County Circuit Court adjudged him guilty of those offenses and ordered the entry of a judgment of conviction as to those counts. Counts one and four were dismissed on the state's motion. Sentencing was held on July 20, 2017, and Plaintiff was sentenced to a total of sixteen years of incarceration, followed by a term of supervised release. Plaintiff filed a notice of intent to pursue post-conviction relief on July 25, 2017.

         In the present case, Plaintiff requests the following items of relief. First, he asks that the Court order the Assistant District Attorney assigned to his case, Laura Crivello (“Crivello”), as well as Kuspa and Esqueda, to produce certain information relevant to the criminal proceedings, including the dates of the alleged drug buys, information about the confidential informer who participated in investigating Plaintiff's offenses, and copies of DNA testing results. Id. at 6. Plaintiff also requests an order from the Court directing the police officers involved in the February 16, 2016 search to draft written reports about the search. Id. He states that he needs this material so that he and his criminal defense attorney (who has not entered on his behalf in this case) can prepare his defense. Id. Plaintiff further requests that the Court order Crivello to drop the charges in case number 2016-CF-762 “because she knows that [Kuspa] and [Esqueda] acted in bad faith by falsifying the affidavit to attain a search warrant, ” which she herself then signed as part of the warrant application. Id. at 8. Finally, Plaintiff prays for compensatory and punitive damages to recompense the time he has spent incarcerated in connection with these criminal proceedings. Id. at 7.

         Plaintiff's allegations leave much to be desired. He does not connect his factual allegations to any legal claim, other than to say that Defendants' actions were wrongful. From the Court's review of the complaint, it appears that Plaintiff may be attempting to raise a claim under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. The conduct relevant to such a claim might be: (1) the unreasonable manner of the February 16, 2016 search, including the officers' failure to knock and announce their presence before entering the home, as well as brandishing their firearms without need; (2) Kuspa and Esqueda's decision to falsify statements in the affidavit underlying the search warrant; and (3) Crivello's decision to submit the search warrant application knowing that the supporting affidavit contained fabrications. The Court will address each claim in turn.

         As to each, the Court will need to consider an additional threshold issue in light of the parallel criminal proceedings. These claims may be barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), which holds that a claim for damages may not be pursued if its success would necessarily imply the invalidity of the criminal conviction or sentence. However, Heck does not automatically preclude Fourth Amendment claims related to conduct underlying a conviction. Wallace v. Kato, 549 U.S. 384, 394 (2007); Nelson v. Campbell, 541 U.S. 637, 647 (2004). As long as the plaintiff's claims do not impugn the validity of his conviction or sentence, courts can entertain Section 1983 suits based on police investigative conduct that violates the Fourth Amendment. Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008); Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998); Simpson v. Rowan, 73 F.3d 134, ...


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