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O'Boyle v. Carrasco

United States District Court, E.D. Wisconsin

March 12, 2019

RYAN P. O'BOYLE, Plaintiff,
v.
GILBERT CARASSCO, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTIONS TO LIFT STAY AND REOPEN CASE (DKT. NOS. 11, 12, 13, 17, 18), DENYING AS UNNECESSARY PLAINTIFF'S MOTION TO AMEND COMPLAINT (DKT. NO 14), SCREENING AMENDED COMPLAINT (DKT. NO. 15) AND DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 16)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The plaintiff, a state prisoner representing himself, filed this lawsuit in July 2016. Shortly after filing it, he asked the court to hold off on screening the complaint until the state court decided a post-conviction motion. Dkt. No. 9. The court granted that request, administratively closed the case and ordered the plaintiff to advise this court when the state court had issued a final decision on his post-conviction motion. Dkt. No. 10.

         On April 11, 2018, the court received a letter from the plaintiff (which he had written on April 1, 2018), notifying the court that some time in December 2017, he had received the final ruling on his state-court post-conviction motion. Dkt. No. 11. He explained that after he received that decision, he was involved in supervision revocation proceedings and federal habeas proceedings, and thus had been delayed in notifying the court that he wanted the court to lift the stay and reopen his case.[1] Id. Six days later, on April 17, 2018, the court received a second copy of the plaintiff's April 1, 2018 letter. Dkt. No. 12. On June 4, 2018, the clerk of court received another letter from the plaintiff (which he'd written on May 30, 2018), again asking the court to lift the stay and reopen the case. Dkt. No. 13. On December 30, 2018, the plaintiff wrote a letter to the clerk of court, asking the court to consider his letter a second motion to lift the stay. Dkt. No. 17. The court received another such letter motion from the plaintiff on February 27, 2019. Dkt. No. 18.

         On July 11, 2018, the court received a motion for leave to file an amended complaint and subpoena request; the plaintiff dated that motion July 6, 2018. Dkt. No. 14. Several months later, on September 20, 2018, the court received from the plaintiff his proposed amended complaint. Dkt. No. 15. That same day, the court received the plaintiff's motion asking the court to appoint counsel to represent him. Dkt. No. 16.

         This order resolves the plaintiff's motions, lifts the stay, reopens the case and screens his amended complaint.

         I. Motions to Lift the Stay and Reopen the Case (Dkt. Nos. 11, 12, 13, 17, 18)

         The plaintiff has asked five times for the court to lift the stay it imposed in November 2017 and reopen this case. Dkt. Nos. 11, 12, 13, 17, 18. The court regrets that it has taken this long to act on the plaintiff's requests; the court will grant them and will order the stay lifted and the case reopened.

         II. Motion for Leave to Amend Complaint (Dkt. No. 14)

         In his April 1, 2018 letter asking the court to lift the stay and reopen his case, the plaintiff mentioned that while he had not named Officer Joshua P. Martinson and Mr. Ricardo Moran as defendants in his original complaint, they “should be added to it if need be, ” because he wanted the court to issue subpoenas to these two individuals, as well as Lt. Derrick L. Harris (who was a defendant) for signature samples. Dkt. No. 11. He argued that he could easily prove that his constitutional rights were violated if he had these samples, and if the samples “would be examined by graphologists from OMNI Document Examiners . . . .” Id. In his May 30, 2018 letter, the plaintiff stated that he “requested the complaint be amended to include Officer Joshua P. Martinson and Mr. Ricardo Moran as defendants in order to obtain signature samples from them which will prove beyond a reasonable doubt the legality of [his] seizure.” Dkt. No. 13.

         In the motion he drafted on July 6, 2018, the plaintiff did what he had not actually done in his prior letters-he specifically asked the court to grant him leave under Fed.R.Civ.P. 15(a) and 19(a) to amend the complaint to add Martinson and Moran. Dkt. No. 14. He said he wanted to add these two defendants “in the interest of justice as it relates to the plaintiff's evidence tampering, Fourth Amendment, Sixth Amendment, and lack of probable cause claims.” Id. at 1. He also said he wanted to add them “for the purpose of signature sample acquisition.” Id. The motion alleged that “Ricardo Moran's signature on the supplementary report does not resemble his signature on the restitution worksheet.” Id. He stated that

Joshua Martinson testified stating that he had never seen [the plaintiff] in his entire life and that he never saw a photo array. Martinson's signature and writing characteristics closely resemble [defendant] Derrick L. Harris' on the CR-215, 04/07 form, but the only thing the forms have in common are the reporting officer, Gilbert Carrasco. The CR-215 form was obviously tampered with compared to the other attached CR-215 form . . . .

Id. at 1-2. At the end of the motion, the plaintiff asked the court to allow him to amend the complaint, and to grant his subpoena request. Id. at 2.

         The plaintiff did not file a proposed amended complaint until September 20, 2018. Dkt. No. 15. The proposed amended complaint adds Martinson and Moran as defendants. Id. at 1.

         Contrary to what the plaintiff appears to believe, he did not ask the court for leave to amend the complaint in his April 1, 2018 letter. In the April 1 letter, the plaintiff said that his claims could easily be resolved with writing samples, that he wanted samples from Martinson, Moran and Harris, and that Martinson and Moran “should be added to [the complaint] if need be.” Dkt. No. 11. The court does not decide whether it is necessary to add people as defendants; a plaintiff makes that decision, and if a plaintiff decides that it is necessary to add defendants, he cannot just stick extra names in the heading- he must explain what each person did to violate his rights.

         There are two ways for a plaintiff to add defendants to a complaint-he can just file an amended complaint, or he can file a motion asking the court for permission to amend the complaint. Which of those methods the plaintiff should use depends on the status of the case. Fed.R.Civ.P. 15(a)(1) allows a party to amend his complaint one time without asking the court for permission, if he does so “21 days after serving it” or 21 days after the other side serves its responsive pleading. Otherwise, the party needs to ask the court's permission to amend the complaint.

         Here, the plaintiff has not yet served his complaint, because the court has not yet screened it. Under Rule 15(a), he had the ability to amend his complaint without asking the court's permission. All he needed to do was what he eventually did in September of 2018-file the amended complaint.

         The court will deny as unnecessary the plaintiff's motion for leave to file an amended complaint, because he didn't need the court's permission. He has filed the amended complaint, and the court screens it below.

         III. Screening the Plaintiff's Amended Complaint (Dkt. No. 15)

         A. Federal 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 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 state a claim 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) the person who 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. The Plaintiff's Allegations

         Screening the plaintiff's amended complaint has proved difficult; it is rambling and repetitive, jumping back and forth in time over eight single-spaced pages. While it names twelve defendants, the plaintiff does not tell the court who any of them are-what their roles were in this case, who they work for. He attached several documents to the complaint, forcing the court to have to review the documents (as well as the on-line docket for his criminal case) to try to piece together what happened, and what he is complaining about. The court considered simply instructing the plaintiff to file an amended complaint, but given the amount of time that has passed, has opted instead to do its best with what is on file.

         The plaintiff provided the court with a state criminal complaint dated July 15, 2011. Dtk. No. 15-3 at 1-2. Detective Mary Schmitz of the Milwaukee Police prepared the complaint based on her review of reports made by other Milwaukee Police officers. Id. The complaint alleges that on July 9, 2011, officers went to Froedert Hospital to respond to a report of a stabbing. They interviewed Ricardo Moran, who told them that on July 8, 2011, he was stabbed three times (twice in the chest and once in the abdomen) while attending Summerfest with his wife. Id. at 1. The complaint indicates that Moran had identified the plaintiff as the person who stabbed him, “from photos.” Id. Assistant District Attorney James C. Griffin signed the complaint. Id. at 2. The complaint bears a stamp reading “FILED CRIMINAL DIVISION 11 JUL 15 PM 12:24 CLERK OF CIRCUIT COURT.” Id.

         Also attached to the amended complaint is a Form PC-24, Supplementary Report on Photo Array Identification Form, dated July 10, 2011-the day after officers visited Moran at the hospital. Dkt. No. 15-3 at 6. The report identified the victim as Ricardo Moran, and the location of the crime as 200 N. Harbor Drive (known to Milwaukee residents as the Summerfest grounds). Id. It indicates that a photo array was shown to Moran at 10:55 p.m. at his home in Waukesha, Wisconsin. Id. Moran signed the form, attesting that he had selected the person whose photo was in folder #3 as the person who committed the crime. Det. Barbara O'Leary signed the form as the reporting officer. Id. It appears that Moran signed the form in two places. Id.

         In the amended complaint, the plaintiff alleges that on July 11, 2015, defendants Gilbert R. Carrasco, Jr., Kristopher M. Maduscha and Michael A. Antoniak entered his home at night without a warrant, demanded to ask the plaintiff questions “by threat of force, ” put him in handcuffs and arrested him. Dkt. No. 15 at 2, 5. The plaintiff attached a Probable Cause Statement and Judicial Determination, Form CR-215, dated July 11, 2011 at 3:42 a.m. and signed by “Det. Gilbert Carrasco, ” notarized on that same date. Id. at 9. That document describes what happened at Summerfest on July 8, describes Moran's identification of the plaintiff from the photo array and describes the plaintiff's arrest on July 11, 2011 at 1:30 a.m. Id. The signature of the notary is difficult to make out, but the seal bears the name of defendant Derrick L. Harris; the plaintiff attached a print-out from the Wisconsin Department of Financial Institutions web site identifying a Derrick L. Harris as a registered notary public, with an address of 749 W. State Street, 7th Floor, Milwaukee, WI 53233 (a handwritten note on the printout reads, “District 1 Milw. PD 414-935-7213”). Id. at 13.

         The plaintiff attached to the amended complaint a property control sheet, showing that on July 11, 2011-the day of his arrest-Det. Barbara O'Leary checked into evidence a photo array supplemental report, a photo array and data sheet for file #15383, and booking photos for the array at file #15383 “shown to victim.” Dkt. No. 15-3 at 3. The victim was identified as Ricardo Moran. The “prisoner” was identified as the plaintiff.

         The plaintiff attached a photo array to the amended complaint. It indicates that it was prepared on October 10, 2011 at 8:36 p.m., with “saved file name 15383.” Dkt. No. 15-3 at 4. The next document in the packet of materials the plaintiff provided is a list of names and identifying information for six people (the same number of people shown in the October 10, 2011 photo array); the plaintiff's information appears in the fifth position on that sheet. Id. at 5. This sheet indicates that it was prepared on October 10, 2011 at 8:14 p.m. for saved file name 15383. Id. These documents do not state who prepared them.

         The plaintiff alleges that Edwin L. Johnson violated his right to counsel on July 12, 2011; the plaintiff says that he repeatedly demanded that an attorney be present, but that Johnson coerced him into answering questions by promising and delivering cigarettes after telling him the Public Defender's office was closed. Dkt. No. 15 at 6. None of the documents attached to the complaint mention Johnson.

         The plaintiff provided a second Form PC-24, Supplementary Report on Photo Array Identification Form, dated July 13, 2011. Id. at 8. Again, the form identified the victim as Ricardo Moran and the location of the crime as the Summerfest grounds; it indicates that someone named Joshua P. Martinson was shown a photo array at 9:30 p.m. on July 13, 2011 at 640 S. 84th Street in Milwaukee (State Fair Park). Id. This person was not able to identify anyone in the array. Id. The reporting officer was Det. Gilbert Carrasco. Id. The plaintiff included in the attachments a printout of an email from a paralegal named Bob Branam at Elite Paralegal Services, to “Chief Bruno” at the email address of James.Bruno@wistatefair.com, dated January 11, 2016. Id. at 14. The email asks “Chief Bruno” for “a signature sample from officer Joshua P. Martinson, ” who Branam understood was “in [Chief Bruno's] department.” Id. A Google search reveals that James Bruno is the chief of the Wisconsin State Fair Park Police Department. Wistatefair.com/wsfp/wsfp-police. The court infers from the email, and from the fact that Bruno is chief of the WSFPD, that defendant Joshua Martinson was an officer of the WSFPD working at Summerfest on July 8, 2011, the date Moran was stabbed.

         The Wisconsin Circuit Court Access program shows that the plaintiff made his initial appearance in State v. O'Boyle, 2011CF003261 (Milwaukee County Circuit Court) on July 15, 2011-four days after he was arrested. https://wcca.wicourts.gov. The case was assigned to Judge Yamahiro, and the court set cash bond, which the plaintiff posted on July 21, 2011. Id.

         The plaintiff alleges that following his arrest, “the State” did not provide him with a “fair and reliable” probable cause determination “at any time.” Id. at 3. He alleges that Det. Carrasco, Derrick L. Harris, Mary Schmitz and ADA Griffin violated “the Federal requirement as per Gerstein v. Pugh, 420 U.S. at 125 . . . .” Id. He alleges that the criminal complaint was not filed until “over one hundred and twelve (112) hours post-warrantless arrest, ” and that Mary Schmitz swore the facts in the complaint without personal knowledge. Id. The plaintiff says that that the photo array used to determine probable cause was not included with “the Probable Cause Statement and Judicial Determination form CR-215;” he asserts that this means that the form was not “an objectively reasonable basis to determine probable cause.” Id. He also alleges that no judge or magistrate ever reviewed or signed the form, and that the form “was tampered with and/or modified.” Id. The plaintiff asserts that the photo array used to establish probable cause did not exist at the time of his arrest; he alleges the State created it three months “post bind over” so it could claim it had probable cause to arrest him. Id. at 3, 4, 5. The plaintiff summarizes that he did not have a probable cause hearing within forty-eight hours of his arrest. Id. at 3.

         The Circuit Court Access program shows that Judge Laura Gramling Perez conducted a preliminary hearing on July 25, 2011-two weeks after the plaintiff's arrest. https://wcca.wicourts.gov. The plaintiff alleges that ADA Griffin violated his rights by “forc[ing]” him to attend the preliminary hearing “following all of the aforementioned illegal police and government conduct, because the State lacked probable cause to arrest in the first place.” Dkt. No. 15 at 3. He says the preliminary hearing violated his right to confront the witnesses against him, when “the District Attorney objected to the relevance of the photo array and [the plaintiff's] alleged identity from it.” Id.

         The case docket shows that on August 1, 2011, the case was transferred to Milwaukee County Circuit Court judge Dennis R. Cimpl. https://wcca.wicourts.gov. The charges were amended on March 8, 2012, and Judge Cimpl arraigned the plaintiff on the amended charges that same day; the plaintiff entered a plea of not guilty. Id. On May 29, 2012, Judge Cimpl heard testimony on a defense motion that there was no probable cause to arrest the plaintiff; Judge Cimpl denied the motion. Id. The plaintiff had a jury trial from May 29 through June 1, 2012; Judge Cimpl presided over the trial, and at the end, the jury convicted the plaintiff of attempted second degree intentional homicide while using a dangerous weapon. Id. Judge Cimpl imposed sentence on September 28, 2012. Id.

         Included in the documents attached to the amended complaint is a restitution worksheet, dated October 5, 2011 and bearing the ...


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