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Boyd v. City of Milwaukee

United States District Court, E.D. Wisconsin

January 30, 2019

IVAN BOYD, Plaintiff,


          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff Ivan Boyd, who is representing himself, filed a civil rights complaint under 42 U.S.C. § 1983 and a motion for leave to proceed without prepayment of the filing fee under 28 U.S.C. § 1915. The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was incarcerated when he filed his complaint. This case was originally assigned to U.S. Magistrate Judge William Duffin; however, because not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was randomly reassigned to a U.S. District Court judge for screening of the complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         The PLRA gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as 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 November 16, 2018, Judge Duffin ordered plaintiff to pay an initial partial filing fee of $2.43. Plaintiff paid the initial partial filing fee on November 26, 2018. The court will grant plaintiff's motion to proceed without prepayment of the filing fee. ECF No. 2. He must pay the remainder of the fee over time in the manner explained at the end of this decision.

         Screening of the Complaint

         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 if the plaintiff raises 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 a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed under 42 U.S.C. § 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 defendant 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 North 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)).

         Allegations in the Complaint

         Plaintiff's complaint alleges that at around 9:00 p.m. on January 31, 2013, he and a female passenger arrived at the Diamond Inn in Milwaukee. Plaintiff alleges that as he and his passenger prepared to get out of the car to go inside, a squad car suddenly pulled directly behind the vehicle. According to the plaintiff, there were then three white faces (the police) peering into his vehicle while pulling on the door handles trying to get inside. Plaintiff alleges that he was terrified and feared for his safety. He further alleges he did not understand why the officers were trying to get into his car-he was licensed and not breaking any laws or ordinances.

         Plaintiff alleges that the officers ordered him to unlock the doors and step out of the vehicle, otherwise the officers would break the windows. He says he complied immediately, at which time officers shoved him against the vehicle and searched his inner and outer coat pockets. Plaintiff alleges that officers attempted to handcuff him, at which point he fled on foot. He alleges that as he fled, he heard the sounds of the squad car's engine and the officers pursuing him on foot shout, “Stop or I'll shoot you in the back!” According to plaintiff, he had made it about a half a block and decided to surrender, at which point the squad car hit him from behind, causing him to hit the pavement head first.

         Plaintiff alleges that officers Maciejewski and Dresen were on top of him, stating “Stop resisting, ” though plaintiff says that the constant kicking and punching made it nearly impossible for him to surrender his hands. According to plaintiff, Vidmar then jumped out of the car and yelled, “He's reaching for a gun!” The last thing plaintiff says he remembers is Vidmar's boot coming towards his face. Plaintiff alleges that he regained consciousness at the police station and was in severe pain, especially in his midsection. He asked to be taken to the hospital, where he was treated for his injuries. He alleges that he was returned to the Milwaukee County Jail on misdemeanor resisting/obstructing charges that were later dismissed or not prosecuted. According to plaintiff, Vidmar's incident report contains several inaccuracies, including the color of the car he was in, the reasons why Vidmar decided to conduct a field interview, and a fabricated bottle of vodka in the center console.

         The Court's Analysis

         Plaintiff's complaint states two claims against the three defendant officers, both arising under the Fourth Amendment: one for false arrest and the other for the use of excessive force. An arrest is unlawful if there is no probable cause to support it, so the predicate of any unlawful arrest claim is the absence of probable cause. Jones v. Webb, 45 F.3d 178, 181 (7th Cir. 1995). Whether a detention constitutes an arrest is a fact-intensive inquiry, Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008) (citing United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995)), and so is whether probable cause existed, Jones, 45 F.3d at 181-82. According to plaintiff's complaint, he and his passenger were just about to get out of his car when the officers approached, demanded he get out of the car, and then threw him ...

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