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O'Boyle v. Wettengel

United States District Court, E.D. Wisconsin

October 16, 2017

RYAN P. O'BOYLE, Plaintiff,


          HON. PAMELA PEPPER United States District Judge

         The plaintiff, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights during his arrest and criminal prosecution in Milwaukee County. Dkt. No. 1. He also has filed a motion for leave to proceed without prepayment of the filing fee (Dkt. No. 2). The court will grant the motion to proceed without prepaying the filing fee and screen the complaint. I. Motion for Leave to Proceed without Prepayment of the Filing Fee The Prison Litigation Reform Act applies to this case, because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil case filing fee, as long as he meets certain conditions.

         On July 22, 2016, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. On August 2, 2016, the court ordered the plaintiff to pay an initial partial filing fee of $25.29. Dkt. No. 6. On August 15, 2016, the court received a $350.00 payment from the plaintiff-the full amount of the filing fee. The fact that he paid the filing fee, however, does not moot the plaintiff's motion. Prisoners who are not granted leave to proceed without prepaying the filing fee also must pay a $50 administrative fee, and must serve their complaints themselves. The plaintiff has disclosed that he has an account containing $950; if the court did not grant his request to proceed without prepaying the filing fee, he would have to use some of that small amount of money to pay the $50 administrative fee and to hire someone to serve his complaint. The court does not expect the plaintiff to deplete all of his assets to file a lawsuit, especially when the court finds that he has met the qualifications for proceeding without paying the filing fee under 28 U.S.C. §1915. The court will grant the plaintiff's motion, and note that he has paid the entire applicable filing fee.

         II. Screening the Plaintiff's Complaint

         A. Standard for Screening Complaints

         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 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).

         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 him 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 a pro se plaintiff's 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 Complaint

         In October 2010, the plaintiff was attempting to change a flat tire. Dkt. No. 1 at 2-3. Defendant Georgina R. Wattengel approached the plaintiff, and the plaintiff told Wattengel that her assistance was unnecessary. Id. at 3. The plaintiff consistently indicated that he did not want to speak to Wattengel or obtain assistance from her. Id. She did not observe any “unusual conduct, ” but claims the plaintiff became uncooperative. Id.

         The plaintiff alleges that Wattengel and defendant Sergeant Piojda unlawfully seized him for Operating After Revocation (OAR) and Obstructing an Officer/Fleeing; they transported the plaintiff to the Oak Creek Police Department. Id. at 2. The plaintiff says officers then “coerced” him into submitting to a chemical test of his breath that showed his blood alcohol content was above the legal limit. Id. The plaintiff was arrested for Operating While Intoxicated (OWI), and the other charges against him soon were dismissed. Id.

         The plaintiff alleges that defendants Daniel Slettmann and Francesco Mineo violated his rights by failing to provide a fair and reliable determination of probable cause, and by filing charges via a criminal complaint without an objectively reasonable basis to determine probable cause. Id. at 3-4. The plaintiff's theory is that the District Attorney's office should have dismissed the OWI charges once the OAR and obstruction/fleeing charges were dismissed, because “the blood alcohol concentration was the fruit of the unlawful seizure.” Id. at 4. The plaintiff believes that all charges stemming from the allegedly unlawful seizure should be dismissed. Id.

         Next, the plaintiff alleges that Milwaukee County Circuit Court Judges Bonnie Gordon, Dennis Flynn and Cynthia Davis “perpetuated the Fourth Amendment violation by allowing this case to proceed to trial and a plea and sentencing hearing when ...

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