United States District Court, E.D. Wisconsin
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE AND REPORT AND
RECOMMENDATION TO DISMISS CASE
JOSEPH United States Magistrate Judge
January 4, 2019, Brandy Bond filed a complaint against the
Milwaukee Police Department and Marcus Corporation alleging
that they violated her civil rights. (Docket # 1 at 3-4.)
Bond also filed a motion for leave to proceed without
prepayment of the filing fee (in forma pauperis).
(Docket # 2.) Bond has previously filed three cases in this
District that were dismissed, including two last year.
Bond v. Milwaukee Police Dep't et al., No.
18-CV-1624 (E.D. Wis. Oct. 30, 2018); Bond v. Milwaukee
Police Dep't et al., No. 18-CV-402 (E.D. Wis. Aug.
21, 2018); Bond v. Wis. Hosp. Grp. et al., No.
17-CV-114 (E.D. Wis. Jan. 31, 2017). Like those earlier
complaints, even construed extremely liberally, I cannot
extract a cognizable federal claim from this complaint.
Therefore, I will deny her motion to proceed in forma
pauperis and recommend that this action be
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure indigent litigants meaningful
access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Nietzke v. Williams, 490 U.S.
319, 324 (1989). To authorize a litigant to proceed in
forma pauperis, the court must first determine whether
the litigant is able to pay the costs of commencing the
action. 28 U.S.C. § 1915(a). Second, the court must
determine whether the action is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
standards for reviewing dismissal for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are the same
as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). To state a claim, a
complaint must provide a “short and plain statement of
the claim showing that [she] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). In evaluating whether a plaintiff's
complaint fails to state a claim, a court must take the
plaintiff's factual allegations as true and draw all
reasonable inferences in his favor. DeWalt, 224 F.3d
at 612. The complaint need not plead specific facts, and need
only provide “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)).
“Labels and conclusions” or a “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). The court is
obliged to construe a pro se plaintiff's
allegations liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
alleges that on three occasions, employees of hotels and/or
restaurants called police after incidents involving Bond.
Bond alleges that on October 15, 2018, a Miller Time pub
employee called police to have Bond removed from the
premises. (Docket # 1 at 3.) The police issued Bond a
citation that was later dismissed by the circuit court.
(Id.) Bond also claims that on May 18, 2018, she was
attacked at the Hilton City Center. (Id.) She
alleges that the police arrested her and took no action to
investigate the alleged attack. (Id.) Finally, Bond
alleges that she was arrested following an altercation at a
fundraiser at the Pfister Hotel. (Id.) Bond alleges
that police dragged her from the hotel, drove her to a
dangerous corner, and left her there. (Id.)
Apparently, no charges were filed in the latter two
incidents. (Id.) Based on these facts, Bond alleges
that the Milwaukee Police Department and Marcus Corporation
violated her civil rights under the 42 U.S.C. § 1983 by
falsely arresting her, defaming her character, causing mental
and physical injury, and acting in a racially and sexually
discriminatory fashion. She also alleges that her equal
protection and free speech rights were violated.
struggle to identify any cognizable federal claim in these
facts. To state a claim for relief under 42 U.S.C. §
1983, a plaintiff must allege that: 1) she was deprived of a
right secured by the Constitution or laws of the United
States; and 2) the deprivation was committed by a person
acting under color of state law. Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Village of North Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)). I will assume that Marcus
Corporation is the owner of the Pfister Hotel. Marcus
Corporation is not a state actor and thus cannot be liable
under § 1983.
Milwaukee Police Department is a state actor, but it is an
arm of the City of Milwaukee and cannot be sued separately
from the city. Whiting v. Marathon County
Sheriff's Dept., 382 F.3d 700, 704 (7th
Cir. 2004). As I explained in Bond v. Milwaukee Police
Dep't et al., No. 18-CV-1624 (E.D. Wis. October 30,
2018), even if I assume Bond intended to sue the City of
Milwaukee, there is still no basis for the city's
liability. Local government entities, such as municipalities
and counties, cannot be held vicariously liable for
constitutional violations committed by their employees.
Monell v. Dept't of Soc. Servs. of City of New
York, 436 U.S. 658, 690 (1978). A municipality or county
can only be liable under § 1983 if “the action
that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision
officially adopted or promulgated by that body's
officers.” Id. To establish liability under
Monell, a plaintiff must “show the existence
of a policy or custom and a sufficient causal link between
the policy or custom and the constitutional
deprivation.” Jones v. City of Chicago, 787
F.2d 200, 203 (7th Cir. 1986) (citing Monell, 436
U.S. at 690-694). Because Bond does not make any allegations
of an official custom, policy, or practice that is
unconstitutional, there is no basis to hold the city liable
for the actions of the police officers. Thus, Bond's
action against the Milwaukee Police Department must be
construed extremely liberally, Bond's complaint does not
state a claim upon which relief may be granted. Therefore, I
will deny her motion to proceed in forma pauperis
and recommend that Bond's complaint be dismissed for
failure to state a claim.
THEREFORE, IT IS ORDERED that plaintiff's motion to
proceed in forma pauperis (Docket # 2) be DENIED.
RECOMMENDED that this case be dismissed for failure to state
attention is directed to General L.R. 72(c), 28 U.S.C. §
636(b)(1)(B) and Federal Rules of Criminal Procedure 59(b),
or Federal Rules of Civil Procedure 72(b) if applicable,
whereby written objections to any recommendation or order
herein, or part thereof, may be filed within fourteen days of
the date of service of this recommendation or order.
Objections are to be filed in accordance with the Eastern
District of Wisconsin's electronic case filing
procedures. Courtesy paper copies of any objections shall be
sent directly to the chambers of the district judge assigned
to the case. Failure to file a timely ...