United States District Court, E.D. Wisconsin
GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 3),
GRANTING PLAINTIFF'S MOTION TO WAIVE PARTIAL FILING FEE
(DKT. NO. 11), AND SCREENING PLAINTIFF'S COMPLAINT (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
24, 2018, the plaintiff filed a complaint under 42 U.S.C.
§1983, alleging that the defendants violated his
constitutional rights by conducting an unlawful search and
seizure of him and his home and subjecting him to a false
arrest. Dkt. No. 1. He also has filed a motion for leave to
proceed without prepaying the filing fee, dkt. no. 2, a
motion to appoint counsel, dkt. no. 3, and a motion to waive
his initial partial filing fee, dkt. no. 11. This decision
resolves the plaintiff's motions and screens the
Motion to Proceed without Prepayment of the Filing
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law gives courts discretion to allow
prisoners to proceed with their lawsuits without prepaying
the $350 filing fee, if they comply with certain
requirements. 28 U.S.C. §1915. One of those requirements
is that the prisoner pay an initial partial filing fee.
6, 2018, the court ordered the plaintiff to pay an initial
partial filing fee of $5.43. Dkt. No. 7. The plaintiff
subsequently filed a motion asking the court to allow him to
use the funds in his release account to pay the initial
partial filing fee, dkt. no. 8, which the court denied on
July 20, 2018 because by that time plaintiff had been
released from prison, dkt. no. 10.
plaintiff since has filed a motion asking the court to waive
the initial partial filing fee. Dkt. No. 11. He states that
he is unemployed, has no assets and is otherwise indigent.
Id. at 1-2. Based on this information, the court
concludes that the plaintiff doesn't have the money to
pay the initial partial filing fee. The court will grant the
plaintiff's motion to waive the initial partial filing
fee, dkt. no. 11, and grant his motion to proceed without
prepaying the filing fee, dkt. no. 2. Although the plaintiff
is no longer incarcerated, he must still pay the filing fee
over time, as he is able.
Motion to Appoint Counsel
motion to appoint counsel, the plaintiff states that the case
is too factually and legally difficult for him as a layperson
to coherently present because it involves the officers'
alleged manipulation of their body cameras and because of his
“impending” release from prison. Dkt. No. 3 at 1.
He says that counsel will be able to assist him with
recording depositions, securing a location for those
deposition, serving subpoenas, obtaining documents from the
defendants, hiring an investigator and doing research.
Id. at 2. He further indicates that he has been
unsuccessful in getting pro bono counsel on his own
and that he can't afford to hire a lawyer. Id.
has discretion in a civil case to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v.
Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C
§ 1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). After a
plaintiff demonstrates he has made a reasonable attempt to
hire counsel on his own, the court will decide “whether
the difficulty of the case-factually and legally-exceeds the
particular plaintiff's capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at
696 (citing Pruitt v. Mote, 503 F.3d 647, 655 (7th
Cir. 2007)). To decide that, the court looks not only at a
plaintiff's ability to try his case but also at his
ability to perform other “tasks that normally attend
litigation, ” such as “evidence gathering”
and “preparing and responding to motions.”
plaintiff did not attach to his motion any documents showing
that he has attempted to hire counsel on his own, but the
court will take him at his word and find that he has made a
reasonable attempt to secure counsel. The court will not,
however, appoint a lawyer for the plaintiff at this point.
The plaintiff's complaint and other communications with
the court show that he has a good grasp of his claims and
that he can clearly communicate why he believes he is
entitled to the relief he seeks. The plaintiff's claim
itself is not factually complex-he has explained that the
defendants stopped him for no reason and searched him without
probable cause, and that they arrested him without giving him
his Miranda warnings. The concerns the plaintiff
expresses in his motion have to do with collecting the
evidence he needs to support his claims, but he'll be
able to ask the defendants for that evidence once the case
gets to the discovery stage.
next step in the process is for the court to serve the
complaint on the defendants. Once the defendants receive the
complaint, they will need to answer or respond to it in some
way. After they do that, the court will issue a scheduling
order with deadlines for completing the exchange of discovery
and filing dispositive motions. At that time, the plaintiff
will be able to ask for the evidence he needs. For example,
he may send the defendants written questions
(interrogatories) and ask them to produce documents that he
believes support his version of the events. See
Fed.R.Civ.P. 33, 34. The court includes with this order a
pamphlet entitled “Answers to Prisoner Litigants'
Common Questions” and copies of Federal Rules of Civil
Procedure Rule 26 (Duty to Disclose; General Provisions
Governing Discovery), Federal Rules of Civil Procedure Rule
33 (Interrogatories to Parties), and Federal Rules of Civil
Procedure Rule 34 (Producing Documents, Electronically Stored
Information, and Tangible Things). These will be helpful to
the plaintiff once the case reaches the discovery phase. But
right now, there is nothing he needs to do.
the court notes that the plaintiff isn't in custody any
longer. Unlike plaintiffs who are in custody, he can go to a
law library (or a regular library) and spend as much time as
he wants preparing papers and doing research. He does not
need to worry about prison officials taking his legal papers,
or being transferred to another facility, or losing law
library time because of segregation.
court understands that it would be very helpful to the
plaintiff to have a lawyer to help him, but “deciding
whether to recruit counsel ‘is a difficult decision:
Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.'”
Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711
(7th Cir. 2014)). That is why the court must analyze each
case when determining whether a plaintiff is able to proceed
on his own. The court concludes that the plaintiff is capable
of representing himself right now, so it will deny his motion
without prejudice. If, later in the case, circumstances
change, the plaintiff can renew his motion for an appointed
Screening the Complaint
requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a).
The court must dismiss a complaint, or part of it, 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. 28 U.S.C.
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “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.
(citing Twombly, 550 U.S. at 556). The
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
considering whether a complaint states a claim, district
courts follow the principles in Twombly, by first
“identifying 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. Second, 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) someone deprived him of a right
secured by the Constitution or laws of the United States; and
2) whoever deprived him of that right was acting under color
of state law. Buchanan-Moore v. Cty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill.
of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004));
see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The court gives a pro se plaintiff's
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 alleges that on June 22, 2016, while he and his
friend Brian Avery were in Avery's car parked outside of
the plaintiff's home, he was gathering his groceries to
get out of the car. Dkt. No. 1 at ¶¶1-2. The
plaintiff states that officers Gerald Kulwich, Joseph
Zawikowski, and Sarah Beland surrounded the
vehicle-Zawikowski at the driver side door and Kulwich and
Beland at the passenger side door. Id. at ¶3.
The plaintiff says he tried to open the passenger door to get
out of the car, but that he couldn't because Kulwich was
standing right in front of the door, demanding the
plaintiff's ID card. Id. at ¶4. The
plaintiff says he turned over the card. Id.
plaintiff asserts that Kulwich never told the plaintiff why
he'd stopped the car. Id. at ¶5. He told
Beland and Kulwich that he lived in the house where the car
was parked, and he told them that he was getting out of the
car to go into his house, but they wouldn't let him out.
Id. The plaintiff says that Kulwich
“immediately” pulled him out of the car and put
him in handcuffs, with no probable cause. Id. at
¶6. Kulwich put his hands in the plaintiff's pants
pockets, searching them-again, without probable cause.
Id. Kulwich “alleged” that he recovered
cocaine out of the plaintiff's front, right pants pocket.
Id. The plaintiff was then “thrown” into
the back seat of the police squad and arrested. Id.
plaintiff says that at some point before he was removed from
Avery's car, Zawikowski “was interviewing Brian
Avery regarding the police (Zawikowski) smelling the odor of
marijuana coming from the inside of Brian Avery's
vehicle.” Id. at ¶9. He also says that
Zawikowski “saw a marijuana blunt sitting in
Avery's ashtray.” Id. The plaintiff claims
that he overheard Avery telling Zawikowski that Avery had
smoked marijuana earlier that day. Id. at ¶10.
The plaintiff states that even though he was still in the
passenger seat when Avery made this admission, all the
officers ignored the admission and “targeted”
him. Id. at ¶11.
plaintiff also says that while he was sitting inside the
squad car, Beland asked permission to search his home.
Id. at ¶12. When the plaintiff refused, Beland
provided him with a consent form for the search. Id.
When the plaintiff refused to sign the form, “Kulwich
then removed the plaintiff's house keys from inside the
plaintiff's pants pocket.” Id. at
¶¶12-13. The plaintiff says Kulwich, along with
Beland, Zawikowski, police officers Bradly Johnson, Ruben
Corodva, Sgt. Charles Grimm and John Doe police officers
searched his home. Id. at ¶14. The plaintiff
alleges that the search “was unreasonable and
unnecessary with excessive force, ” and that the
officers “damaged his property and left his residence
unlocked causing [it] to be burglarized.” Id.
plaintiff says that he asked for his house keys to be
returned to him and placed in his property at the jail.
Id. Kulwich and Beland “lied” and said
that the keys were placed in his property, but the plaintiff
says the keys never were returned to him. Id. The
plaintiff says his landlord evicted him “due to the
police raid and property damage caused” by the
defendants, and that he lost ...