United States District Court, E.D. Wisconsin
Stadtmueller. U.S. District Judge
a prisoner proceeding pro se, filed a 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 #6). Plaintiff has been assessed and
paid an initial partial filing fee of $1.43. 28 U.S.C. §
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); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; 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)); 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. (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. 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
first “identif[y] 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 “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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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)).
complaint is simple: he alleges that he was not afforded
counsel during a police lineup after a probable cause
determination had been made in his case, in violation of his
right to counsel under the Sixth Amendment. Defendants are
all officers of the Milwaukee Police Department
(“MPD”). On May 28, 2014, Plaintiff was arrested
on a warrant for attempted homicide. (Docket #1-2 at 2). The
warrant issued because Plaintiff had allegedly engaged in a
gun battle with another person, Sylvester Lewis
(“Lewis”), and a nearby child was struck by a
stray bullet. See (Docket #1-1 at 2). The child
eventually died from her wounds.
his arrest and booking at the Milwaukee County Jail, two MPD
officers attempted to interview Plaintiff. Id. They
read him his Miranda rights, he declined to speak
without counsel present, and the interview ended there.
Id. The next day, on May 29, 2014, one of the
officers filed an affidavit concerning Plaintiff and the
shooting incident with Milwaukee County Circuit Court
commissioner Rosa Barillas (“Barillas”).
Id. The detective sought a probable cause
determination so as to justify Plaintiff's continued
detention. Barillas found probable cause to support the
charged crimes-homicide and a probation violation-and set
Plaintiff's bail at $250, 000. Id. at 2-3.
30, 2014, Defendants forced Plaintiff to participate in a
lineup. Id. at 3. Plaintiff was not offered or
afforded counsel during this process. Id. As will be
explained further below, three witnesses to the shooting
participated in the lineup and positively identified
Plaintiff as Lewis' opponent in the shootout.
alleges that upon the probable cause determination by
Barillas, his Sixth Amendment right to counsel attached,
citing Rothgery v. Gillespie County, 554 U.S. 191
(2008). If this is true, says Plaintiff, it was unlawful for
the police to force him to participate in a lineup without
the assistance of counsel. United States v. Wade,
388 U.S. 218, 226 (1967); Missouri v. Frye, 566 U.S.
134, 140 (2012) (the Sixth Amendment right to counsel
guarantees the presence of counsel at “critical
stages” such as “postindictment
is correct that the right to counsel attaches once a criminal
defendant undergoes the state's equivalent of an initial
appearance-that is, whatever protocol or proceeding the state
uses to apprise the defendant of the charges against him, to
afford a neutral judicial officer a chance to make a probable
cause determination, and, assuming probable cause is found,
to afford the judicial officer an opportunity to make a bond
determination. Rothgery, 554 U.S. at 199. Other
branches of this Court have found that, under
Rothgery, a Milwaukee County commissioner's
signing a probable cause determination constitutes the
initiation of a prosecution for purposes of the Sixth
Amendment right to counsel, despite the fact that the
defendant never actually appears before the commissioner.
United States v. West, No. 08-CR-157, 2009 WL
5217976, at *9 (E.D. Wis. Mar. 3, 2009). The Court has no
reason to quarrel with the sound reasoning of West,
which has been followed by other branches of this Court.
United States v. Mitchell, No. 15-CR-47, 2015 WL
5513075, at *4 (E.D. Wis. Sept. 17, 2015). Thus, it appears
that Plaintiff should be permitted to proceed on his Sixth
there remains the matter of his state conviction to consider.
Based on publicly available state court records, the Court
has determined that the original two charges brought before
Barillas on May 29, 2014- homicide and a probation
violation-were amended on June 2, 2014 to a single charge of
being a felon in possession of a firearm, apparently because
it was determined that Lewis, not Plaintiff, fired the shot
that killed the child. Plaintiff was ultimately convicted at
trial of the felon-in-possession charge in Milwaukee County
Circuit Court Case No. 2014CF2307. Plaintiff appealed, and
the Wisconsin Court of Appeals affirmed the conviction and
sentence in a recent order dated March 6, 2018. State of
Wisconsin v. Jamey Lamont Jackson, Appeal No.
2017AP968-CR, 2018 WL 1175136 (Wis. Ct. App. Mar. 6, 2018).
v. Humphrey, 512 U.S. 477, 487 (1994), holds that a
claim for damages under Section 1983 may not be pursued if
its success would necessarily imply the invalidity of a
criminal conviction or sentence. However, not every damages
action is Heck-barred. As long as the
plaintiff's claims do not necessarily impugn the validity
of his conviction or sentence, courts can entertain Section
1983 suits based on conduct that occurred during an
investigation or prosecution. Wallace v. Kato, 549
U.S. 384, 394 (2007); Nelson v. Campbell, 541 U.S.
637, 647 ...