United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
January 4, 2019, Plaintiff Brandy Bond filed a pro
se complaint alleging that the defendants, Maggie Sutton
(“Sutton”), Waukesha Child Protective Services
(“WCPS”) and Waukesha School District
(“WSD”) violated her civil rights by removing her
child from her custody. (Docket #1). Plaintiff also filed a
motion for leave to proceed in forma pauperis.
(Docket #2). The case was randomly assigned to Magistrate
Judge Nancy Joseph. The magistrate denied Plaintiff’s
motion to proceed in forma pauperis and recommended
a dismissal of the action for failure to state a claim.
(Docket #4 and #5).
to General Local Rule 72(c), 28 U.S.C. § 636(b)(1)(B),
and Federal Rule of Civil Procedure 72(b), the parties were
advised that written objections to the magistrate’s
recommendation, or any part thereof, could be filed within
fourteen days of the date of service of the recommendation.
Id. The Court must review de novo any
portion of the magistrate’s recommendation to which the
Plaintiff properly objects, and may accept, reject, or modify
any part of the recommendation. Fed. R. Civ. P. 72(b)(3). On
January 17, 2019, Plaintiff timely filed an objection,
asserting that her complaint was not properly evaluated under
the liberal pleading standard applied to pro se
litigants. (Docket #6 at 1). The Court has considered
Magistrate Joseph’s recommendation and will adopt it
for the reasons stated below.
Court is authorized to screen lawsuits filed by indigent
litigants in order to fulfill the dual objective of ensuring
access to the federal courts and preventing litigants from
filing frivolous, malicious, or repetitive lawsuits.
See 28 U.S.C. § 1915; Nietzke v.
Williams, 490 U.S. 319, 324 (1989). First, the Court
must evaluate the litigant’s ability to pay the initial
filing fee. 28 U.S.C. § 1915(a)(1). 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.” Id. at
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [she] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is
not necessary for the plaintiff to plead specific facts and
her statement need only “give the defendant 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)). However, a complaint that offers mere
“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). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “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, courts should
follow the principles set forth 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. If there are well-pleaded factual allegations,
the court must, second, “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. Section 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 visited upon her by a person or
persons 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 is obliged to give the
plaintiff’s pro se 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)).
magistrate dismissed Plaintiff’s motion to proceed
in forma pauperis because her complaint failed to
state a claim upon which relief could be granted.
See (Docket #4). For the same reason, the magistrate
recommended the action be dismissed. (Docket #5).
alleges that Sutton (who seems to be a social worker) and
WCPS wrongfully initiated a Child In need of Protection or
Services (“CHIPS”) petition under Wis. Stat.
§ 48 et seq. against her. (Docket #1). Shortly
thereafter, Sutton, WCPS, and the Waukesha County School
District removed her child from her custody and placed the
child with a drunk, abusive foster parent with a criminal
history. Id. These are essentially the same
allegations that Plaintiff made when, on October 15, 2018,
she filed a claim in the Eastern District of Wisconsin naming
Sutton, WCPS, and the City of Waukesha Police Department as
defendants. See (No. 18-CV-1624, Docket #1). That
claim was also dismissed because Plaintiff failed to allege a
federal cause of action. (No. 18-CV-1624, Docket #5 and #6).
judgment dismissing a complaint for failure to state a claim
has res judicata effect as to that claim unless the
dismissal order states otherwise. Coleman v. Labor &
Indus. Rev. Comm’n of Wis., 860 F.3d 461,
468–70 (7th Cir. 2017); Rinehart v. Locke, 454
F.2d 313, 315 (7thCir. 1971); Fed. R. Civ. P. 41(b). The
dismissal order in 18-CV-1624 does not say that it is without
prejudice, therefore prejudice is presumed. See Fed.
R. Civ. P. 41(b); (No. 18-CV-1624, Docket #6). Therefore,
that previously dismissed complaint has res judicata
effect as to the claims that Plaintiff now attempts to assert
against Sutton and WCPS.
Magistrate Joseph rightly recommended dismissal of the action
as to the Waukesha School District for several reasons.
First, federal courts do not have jurisdiction over child
custody matters which result in a custody order.
Akenbrandt v. Richards, 504 U.S. 689, 703 (1992);
In re Burrus, 136 U.S. 586, 593–94 (1890). To
be fair, Plaintiff does not request a custody order as a form
of relief-she requests monetary damages and “access to
the publicly traded and government subsidized Hilton
Hotel.” (Docket #1 at 4, 6). However, the bulk of her
complaint pertains to custody determinations that the Court
would be powerless to adjudicate.
Plaintiff alleges that her Equal Protection Rights were
violated, but fails to allege a single fact that would allow
the Court to infer that the Waukesha School District took any
action on the basis of Plaintiff’s race or any other
a school district cannot be liable under Section 1983 for the
individual violations of its employees; “liability must
be founded on an official policy or custom.” Partee
v. Met. Sch. Dist. of Wash. Twp., 954 F.2d 454, 455-56
(7th Cir. 1992) (citing Monell v. Dep’t. of Soc.
Servs. of the City of New York, 436 U.S. 658 (1978)).
Plaintiff has not alleged any facts supporting the inference
that her injuries were the product of the school
district’s widespread policy or custom. Therefore, the
action as to the Waukesha School District must also be
IT IS ORDERED that Plaintiff Brandy
Bond’s objections to Magistrate Judge Nancy
Joseph’s report and recommendation ...