United States District Court, E.D. Wisconsin
RYAN P. O'BOYLE, Plaintiff,
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.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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.
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. 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.
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.
order resolves the plaintiff's motions, lifts the stay,
reopens the case and screens his amended complaint.
Motions to Lift the Stay and Reopen the Case (Dkt. Nos. 11,
12, 13, 17, 18)
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
Motion for Leave to Amend Complaint (Dkt. No. 14)
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.
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.
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.
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.
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.
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.
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.
Screening the Plaintiff's Amended Complaint (Dkt. No.
Federal Screening Standard
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).
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).
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)).
The Plaintiff's Allegations
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
in the documents attached to the amended complaint is a
restitution worksheet, dated October 5, 2011 and bearing the