United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
case concerns claims by Plaintiff, James A. Barker, III
(“Barker”), that a large group of police
officers, attorneys (both his and the government's),
state court clerical staff, and even a state judge, violated
his constitutional rights. His story begins with searches of
his parents' and girlfriend's homes and his store in
April 2015 and culminates in ongoing state court criminal
proceedings brought against him in Racine County Circuit
Court, State of Wisconsin v. James A. Barker III,
Case No. 2015CF0627. Put simply, Barker seeks to remove the
state criminal prosecution to federal court and redress what
he views as systemic misconduct occurring in connection with
the state case. Defendants have filed motions to dismiss the
complaint. (Docket #11, #16, #22, #25). The motions are fully
briefed and, for the reasons stated below, they will be
granted in large measure. Additionally, the Court will stay
the case as to the surviving claims in light of the ongoing,
parallel state criminal proceedings.
Rule of Civil Procedure 12(b) provides for dismissal of
complaints which, among other things, fail to state a viable
claim for relief. Fed.R.Civ.P. 12(b)(6). To state a claim, a
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In other words, the
complaint must give “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). The
allegations must “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
speculative level[.]” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation
omitted). In reviewing the complaint, the Court is required
to “accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Id. at 480-81. 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).
following facts are drawn from the amended complaint, (Docket
#10), which is presently the operative complaint in this
case. The complaint is prodigiously long,
comprising 185 paragraphs stated in twenty-three
single-spaced pages. The Court's disposition of most of
the issues does not turn on the finer details of Barker's
complaint, so the Court will confine itself to a general
overview of the facts.
in the morning on April 23, 2015, officers of the Racine
County Sheriff's Department executed an unsigned no-knock
search warrant at the residence of Barker and his parents.
Id. at 3. They were investigating Barker as a
potential participant in a theft conspiracy. Id. The
search warrant was premised on the affidavit of officer Brian
Vanscyoc (“Vanscyoc”), who averred in part that
Barker had been involved in an armed assault. Id.
Barker denies involvement in any theft or assault and says
that affidavit was fabricated to support a finding of
probable cause for the search. Id. at 7-8. The
officers seized surveillance equipment on the property
maintained by Barker's father, which Barker believes
captured the police officers' misconduct. Id. at
was not at home during the search; he was at his
girlfriend's house. Id. at 3. Barker's
father called him at the officers' request to tell him to
come into the police station for questioning. Id. He
agreed, but then was apprehended outside his girlfriend's
house anyway. Id. He says he was immediately taken
to the Racine County Jail on a probation hold Id.
That same day, officers searched Barker's
girlfriend's home and found a quantity of THC.
Id. at 4-5. At some unspecified time later, officers
also searched a store Barker owns and operates. See
Id. at 5-6. Although not clear from the allegations of
the complaint, it seems that Vanscyoc's averments may
have been used to support the issuance of all the warrants
implicated in Barker's case. See Id. at 7-8.
Another officer, Donald Vandervest
(“Vandervest”), may also have submitted an
affidavit in connection with the warrants. See Id.
at 12. Barker claims that all of the search warrants-he says
there were eight in total-were unsigned, uncertified, and
unsworn, bore the wrong dates, were full of typographical
errors, and had attached affidavits that referred to crimes
having nothing to do with him. Id. at 6.
April 27, 2015, a criminal complaint was filed against Barker
in Racine County Circuit Court, Case No. 2015CF0627, charging
him with (1) theft, (2) possession of THC, and (3) possession
of drug paraphernalia. On May 6, 2015, Barker waived his
right to a preliminary hearing, the state court found
probable cause supported the charged crimes, Barker was bound
over for trial, he was arraigned, and a not guilty plea was
entered. Barker was represented by attorney David Saldana
(“Saldana”) and the State was represented by
Racine County Deputy District Attorney Patricia Hanson
sets out a large body of allegations of misconduct by
investigators and state prosecutors in connection with his
prosecution. First, he catalogs the reasons he thinks that
the State's case is baseless. For instance, he believes
that the interviews with his co-defendants exonerate him, and
he challenges the search warrants as defective and therefore
void. See Id. at 4-6. Barker also complains that he
did not receive copies of some or all of these warrants until
well into his criminal prosecution. Id. Those copies
which he did receive slowly over time were still rife with
errors and deficiencies. Id. at 7-8.
addition, Barker contends that Vanscyoc and Hanson conspired
to plant the THC in Barker's girlfriend's home in
order to secure a conviction or probation revocation, since
they learned from his co-defendants that he was not, in fact,
part of the theft ring. Id. He points to what he
believes is suspicious back-dating of reports and a prolonged
delay between the seizure and inventory of the THC.
Id. Additionally, Barker alleges that Thomas Knaus
(“Knaus”), another investigator, claimed in his
report that it was he, not Vanscyoc, that seized the THC.
major theme in Barker's complaint is that the State has
improperly withheld evidence, such as records interviews with
co-defendants, the search warrants, documents purportedly
linking him to his girlfriend's residence where the THC
was found, reports by investigators such as Vanscyoc and
Knaus, and records from eBay that were cited in
Vanscyoc's search warrant affidavit. Id. at 4-5,
9, 19. Indeed, according to Barker, the state prosecutor and
the judge at one point falsely claimed that a co-defendant
interview never occurred. Id. at 19.
reports that Saldana engaged in malpractice and was as not
cooperative in helping him obtain originals of the search
warrants. See Id. at 6-9. On October 5, 2015,
attorney Mark Nielsen (“Nielsen”) was substituted
for Saldana, but, on February 16, 2016, Nielsen withdrew as
well. Barker claims that Nielsen did not
properly discharge his duties either, alleging that Nielsen
failed to file several motions, failed to diligently pursue
original, certified copies of the search warrants, and failed
to help Barker's father reclaim the surveillance
equipment which the officers had seized during their search.
Id. at 9-11. Nielsen produced search warrants to
Barker, but according to Barker, they are inconsistent with
prior copies of the same warrants. Id. at 11. He
accuses Nielsen of “corruption.” See id.
August 1, 2016, the case was transferred to Judge Faye
Flancher (“Judge Flancher”). Barker says that
this reassignment was improper because Judge Flancher signed
one of the warrants he sought to challenge. Id. at
8. He filed several motions asking the judge to recuse
herself, but all were denied. See id.
was eventually released on bond after his probation
revocation proceedings were dismissed. Id. at 12. He
and his new lawyer, Toni Young (“Young”), went to
the Racine County courthouse on three occasions in 2016 to
track down the long-sought original, certified search warrant
records. Id. Barker asserts that the Racine County
Circuit Court clerical staff were unhelpful. Id. at
alleges that three of the clerks-Amy Vanderhoef
(“Vanderhoef”), Victoria Worden
(“Worden”), and Catlyn Presser
(“Presser”)-were caught on audio and video
recordings fabricating or doctoring search warrant records.
Id. at 14-16. Young and Barker inspected the records
these clerks provided and suspected they had been manipulated
because they contained many errors and inconsistencies.
Id. at 15. Further, he says that the deputy clerk,
Tracey Kutch (“Kutch”), left an
“incriminating” comment on Facebook in connection
with a documentary trailer Barker later released.
Id. at 15.
separate encounters with Racine County clerical staff, Barker
accuses Brian Graziano (“Graziano”) of refusing
to certify certain records because he said they were not part
of a Racine County case. Id. at 19-20. Barker, of
course, did not understand this, as his prosecution is
proceeding in Racine County Circuit Court. See Id.
He also alleges that Samuel Christensen
(“Christensen”) did not reply to an email he once
sent inquiring about whether certain documents had been filed
with the state court. Id. at 19.
August 19, 2016, Judge Flancher allowed Hanson to withdraw
and appointed Walworth County Assistant District Attorney
Haley Jo Johnson (“Johnson”) as a special
prosecutor. Id. at 17-18. Barker says that this was
done without following the procedures for such an appointment
under Wisconsin statute, including approval of the
appointment through the Wisconsin Department of
the proceedings, Judge Flancher denied numerous motions filed
by Barker and his counsel. These included motions to modify
his bond conditions, motions to suppress, motions for
sanctions, motions to dismiss, and motions to recuse. See
Id. at 18-22. In December 2017, she also ruled that
Barker was competent to proceed pro se. In that same
month, Barker reports that he had additional significant
difficulties reviewing search warrant records and other
records being held at the Racine County Sheriff's Office.
Id. at 20-21. From the Court's review of
publicly available state court records, it appears that
Barker's jury trial is scheduled to begin June 6, 2018.
end, Barker's complaint can be best summarized as an
effort to uncover alleged ongoing misconduct by court
officials, government and private lawyers, and law
enforcement officers to cover up their forging of search
warrants, lying in supporting affidavits, and fabricating
evidence that set off Barker's prosecution. See
Id. at 23. Barker suspects that these persons are
denying him his constitutional rights out of fear of
punishment if their misdeeds come to light. Id.;
(Docket #29 at 16).
catalog of alleged misconduct by every person associated with
his criminal case gives rise to very few colorable federal
claims, and none that can proceed prior to the conclusion of
the state criminal proceedings. The Court will first address
deficiencies with respect to the bases for federal
jurisdiction in this case, then the problems with the types
of relief Plaintiff seeks, then the difficulties as to the
naming of certain defendants. Finally, the Court will explain
why this case must be stayed until the conclusion of the
state criminal proceedings.
Bases for Federal Subject-Matter Jurisdiction
courts are courts of limited jurisdiction. They possess only
the power authorized by the Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). The party asserting the court's
jurisdiction bears the burden of establishing its existence.
Id. A federal court's subject-matter
jurisdiction is generally limited to two types of suits: (1)
those between citizens of different States, called
“diversity” jurisdiction, pursuant to 28 U.S.C.
§ 1332; and (2) those involving causes of action arising
under federal law, known as “federal question”
jurisdiction, pursuant to 28 U.S.C. § 1331.
these principles, the Court evaluates its jurisdiction.
Although Barker does not attempt to rest subject-matter
jurisdiction on Section 1332, it is worth noting at the
outset that diversity is lacking in this case. Barker and all
of the Defendants (or at least most of them) are citizens of
Wisconsin. Because parties on both sides of the case are
citizens of the same State, there can be no diversity
jurisdiction. Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806); McCready v. eBay, Inc., 453 F.3d
882, 891 (7th Cir. 2006).
Court now considers Barker's cited bases for federal
question jurisdiction over his claims. (Docket #10 at 1).
First, Barker asserts violations of his civil rights under
the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution, arising from
“unreasonable search and seizure, ”
“tampering with public records and notices, ”
“simulating legal process, ” “malicious
prosecution, ” “judicial misconduct, ”
“police misconduct, ” and “attorney
malpractice.” Id. Such claims are raised in
federal court under 42 U.S.C. § 1983. To state a claim
for relief under Section 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. Cnty. of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The viability of Barker's
constitutional claims will be addressed in greater depth
below with respect to each category of defendants. For now,
it is enough to observe that a federal action could be based
on alleged constitutional violations pursuant to Section
every other basis for federal question jurisdiction cited in
the amended complaint falls short. The first is 28 U.S.C.
§ 1455, which governs the procedure for removal of state
criminal proceedings to federal court. It is not itself a
grant of federal jurisdiction, and the request to remove the
Racine County prosecution to this Court is without merit, as
will be explained below. See infra Part 3.2.
also alleges that this Court has jurisdiction pursuant to the
following federal criminal statutes: 8 U.S.C. § 1342(c),
which imposes criminal penalties for “bringing in and
harboring certain aliens, ” and 18 U.S.C. § 242,
which criminalizes the “deprivation of rights under
color of law.” As a private citizen, Barker does not
have authority to enforce either of the above-cited federal
criminal laws in a civil action. Ash v. Bias, No.
12-CV-11, 2014 WL 3353251, *4 (E.D. Wis. July 9, 2014)
(citing Lovelace v. Whitney, 684 F.Supp. 1438, 1441
(N.D. Ill. 1988)) (holding that “18 U.S.C. § 242.
. .is a criminal statute which provides no private cause of
action”); see also Ragsdale v. Turnock, 941
F.2d 501, 509 (7th Cir. 1991) (Posner J., concurring in part
and concurring in the judgment) (“[P]rivate persons
have no right. . .to enforce criminal or other regulatory
statutes, unless of course the statutes also create private
rights of action[.]”)
Barker purports to sue for violations of several Wisconsin
constitutional provisions and criminal statutes. See
(Docket #10 at 1); Wis. Stats. §§ 946.68(1r)(c)
(simulating legal process), 946.72 (tampering with public
records and notices), 946.12(1)-(3) (misconduct in public
office), 943.39(2)-(3) (fraudulent writings). He also
references Wis.Stat. § 968.02, which sets forth the
authority for a district attorney to issue criminal charges,
and Wis.Stat. § 757.19(2)(d), which relates to the
disqualification of a judge. As with federal criminal
statutes, Barker, as a private person, has no automatic right
to enforce Wisconsin statutes unless authorized by the
Wisconsin legislature. See Wis. Stat. §
968.02(1); Grube v. Daun, 563 N.W.2d 523, 526 (Wis.
1997). None of the cited statutes authorize a private right
of action, and Barker makes no effort to argue otherwise.
violations of state law or the state constitution do not
themselves give rise to federal jurisdiction. Instead, there
must be some established basis for the district court to
exercise subject-matter jurisdiction over the case, such an
alleged violation of federal law or diversity of citizenship.
No such jurisdictional hook attaches to these state-law
claims, and the Court would also decline to exercise
supplemental jurisdiction over them under 28 U.S.C. §
1367(a) even if they were viable.
the Court finds that there is no proper ground for federal
subject-matter jurisdiction in this case except for claims
based on violations of Barker's constitutional rights
made pursuant to Section 1983.