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Barker v. Vanscyoc

United States District Court, E.D. Wisconsin

May 21, 2018




         This 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.

         1. LEGAL STANDARD

         Federal 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).

         2. RELEVANT FACTS

         The following facts are drawn from the amended complaint, (Docket #10), which is presently the operative complaint in this case.[1] 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.

         Early 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 3, 16.

         Barker 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.

         On 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 (“Hanson”).

         Barker 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.

         In 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. Id.

         Another 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.

         Barker 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.[2] 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.

         On 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.

         Barker 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 12-16.

         He also 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.

         In two 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.

         On 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 Administration. Id.

         Through 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.

         In the 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).

         3. ANALYSIS

         Barker's 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.

         3.1 Bases for Federal Subject-Matter Jurisdiction

         “Federal 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.

         Against 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).

         The 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 1983.

         However, 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.

         Barker 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[.]”)

         Next, 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.

         Moreover, 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.

         Thus, 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.

         3.2 ...

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