United States District Court, E.D. Wisconsin
MARVIN L. CARTER, Plaintiff,
JOHN KUSPA, WILLIAM J. ESQUEDA, LAURA A. CRIVELLO, and MILWAUKEE POLICE DEPARTMENT, Defendants.
Stadtmueller, U.S. District Judge.
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).
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).
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.
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.
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.
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)).
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.
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.
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.
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.
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
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.
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, ...