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Holifield v. Kulwich

United States District Court, E.D. Wisconsin

January 22, 2019

AL HOLIFIELD, Plaintiff,



         On May 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 complaint.

         I. Motion to Proceed without Prepayment of the Filing Fee

         The 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.

         On June 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.

         The 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.

         II. Motion to Appoint Counsel

          In his 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.[1] 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. at 1.

         A court 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.” Id.

         The 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.

         The 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.

         Finally, 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.

         The 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 lawyer.

         III. Screening the Complaint

         A. Screening Standard

         The law 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. §1915A(b).

         To 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).

         In 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.

         To 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)).

         B. Factual Allegations

         The 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.

         The 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.

         The 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.

         The 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. at ¶15.

         The 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 ...

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