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, Milwaukee
Police Department and Marcus Corporation, violated her civil
rights by illegally arresting her on three occasions. (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 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 in a
different case, case number 19-CV-29, which was filed on the
same date as the above-captioned case, and which also
received a recommendation of dismissal from Magistrate Judge
Joseph. In Plaintiff’s objection to 19-CV-29’s
recommendation, she referenced the above-captioned case, and
objected that her complaints were not properly evaluated
under the liberal pleading standard applied to pro
se litigants. (No. 19-CV-29, Docket #6 at 1–2). In
light of the Plaintiff’s status as a pro se
litigant, the Court will assume that she intended the
objection to apply to this case as well. However, 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
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke, 490 U.S. at 325; Hutchinson
ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir.
1997). The Court may, therefore, dismiss a claim as frivolous
where it is based on an indisputably meritless legal theory
or where the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for
“frivolous,” “is more usefully construed as
intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109 (7th Cir. 2003) (citations omitted).
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
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).
Joseph’s recommendation of dismissal is appropriate
because neither defendant is a viable party to the suit.
Marcus Corporation is a private entity, and is not subject to
liability under 42 U.S.C. § 1983, which requires
individuals to be operating under the color of law. The
Milwaukee Police Department is not subject to suit because a
police department is not a “legal entity separable from
the [local] government which it serves.” Whiting v.
Marathon Cty. Sheriff’s Dep’t., 382 F.3d
700, 704 (7th Cir. 2014). Governments are not liable for the
civil rights violations of their employees, and may only be
liable under Section 1983 if there is an underlying policy
that caused the harm. Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 690 (1978).
Plaintiff does not allege that the harm she suffered was the
result of a widespread policy that would give rise to
Monell liability, therefore the Milwaukee Police
Department must be dismissed from the action.
Joseph also properly determined that there is no cognizable
federal claim on the facts alleged. (Docket #5 at 3).
Plaintiff states that she was illegally arrested and defamed,
but does not allege a single fact that would enable the Court
to infer that each arrest was illegal. All three arrests
occurred after a private enterprise (Miller Time, the Hilton
Hotel, and the Pfister Hotel) called the police to remove the
Plaintiff from the premises. Plaintiff does not allege that
the arrests lacked probable cause, that any aspect of the
arrest consisted of excessive force, or that she was held for
an inappropriately long amount of time. Indeed, on each
occasion, she was released from custody after being removed
from the premises. Plaintiff also makes claims of race and
gender discrimination, but does not allege a single fact that
would allow the Court to draw an inference that her arrests
were motivated by her race or her gender. Therefore,
Plaintiff has failed to allege facts that would give rise to
a cause of action under federal law.
IT IS ORDERED that Plaintiff Brandy
Bond’s objections to Magistrate Judge Nancy
Joseph’s report and recommendation (No. 19-CV-29,
Docket #6) be and the same are hereby
OVERRULED to the extent that they pertain to
this action; IT IS FURTHER ORDERED that
Magistrate Judge Nancy Joseph’s report and
recommendation (Docket #5) be and the same ...