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Jackson v. Devalkenaere

United States District Court, E.D. Wisconsin

May 14, 2018



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

         Plaintiff, 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. § 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); 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; 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.

         In 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.

         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); 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)).

         Plaintiff's 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.

         After 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.

         On May 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.

         Plaintiff 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 lineups”).[1]

         Plaintiff 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 Amendment claim.

         But 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).

         Heck 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 ...

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