United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Lathan S. Ward, an inmate at Kenosha County Detention Center,
filed a complaint pro se under 42 U.S.C. § 1983
alleging that the defendants violated his constitutional
rights. (Docket #1). This matter is before the court on the
plaintiff's motion to proceed without prepayment of the
civil case filing fee and for screening of his complaint
(Docket #2). This case was assigned to U.S. Magistrate Judge
David E. Jones; however, because not all parties have had the
opportunity to consent to magistrate judge jurisdiction, the
case was randomly referred to a U.S. District Court judge for
the limited purpose of screening the complaint.
Motion to Proceed without Prepayment of the Filing
Prison Litigation Reform Act 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 February 6, 2019, the court ordered the
plaintiff to pay an initial partial filing fee of $2.48.
(Docket #6). The plaintiff paid the fee on February 26, 2019.
As such, the court will grant the plaintiff's motion. He
will be required to pay the remainder of the $350 filing fee
over time in the manner described at the end of this Order.
Screening of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised 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. §
state a cognizable claim under the federal notice pleading
system, a plaintiff is required to provide a “short and
plain statement of the claim showing that [he] is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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).
state a claim for relief 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 deprivation was visited upon him 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 a 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)).
Allegations in the Complaint
plaintiff alleges that on August 21, 2018, “Peter Falk
#384 and multiple other parties” improperly executed an
“unlawful no knock search warrant” at his
mother's home-a place he says he resides but mostly uses
for mailing purposes. (Docket #1 at 3). He was, assumedly,
subsequently arrested because he states he was still being
held on a $50, 000 bond despite the victim picking someone
else out of the photo lineup. Id. He also says that
the search was executed using intimidation and that it caused
him pain, suffering, and shame and damage to the front door
of his mother's home and his property in his bedroom.
Id. at 3-4. He also claims that the officers robbed
him of his property. Id. at 4. The plaintiff seeks
expungement of his juvenile and adult criminal records, his
child support paid for life, to be immediately released from
prison, and compensatory and punitive damages. Id.
plaintiff asserts that the defendants violated his Fourth
Amendment rights when they executed a no-knock search warrant
of his residence and subsequently arrested him. The
plaintiff, however, does not disclose whether the charges
that were brought against him were dropped, if they are still
pending, or if he was convicted of the crime. Thus, his
constitutional claims may be Heck barred because
such a claim for damages may not be pursued if its success
would necessarily imply the invalidity of the criminal
conviction or sentence. Heck v. Humphrey, 512 U.S.
477, 487 (1994).
while the court is aware that Heck is not an
automatic bar to Fourth Amendment claims related to conduct
underlying a conviction, Wallace v. Kato, 549 U.S.
384, 394 (2007), the plaintiff's allegations seem to be
insufficient to state such claims. He acknowledges that the
officers entered and searched his home pursuant to a search
warrant. He does not challenge the adequacy of the warrant or
assert that the officers exceeded the scope of the warrant.
See Groh v. Ramirez, 540 U.S. 551, 557 (2004)
(noting that executing a warrant that is obviously deficient
in its particularity, or interpreting a valid warrant as
giving license to rummage wherever police would like, likely
violates the Fourth Amendment); see Franks v.
Delaware, 438 U.S. 154, 155-56 (1978); see also Knox
v. Smith, 342 F.3d 651, 658 (7th Cir. 2003) (noting that
knowingly lying in a warrant application violates the Fourth
Amendment's protection against unreasonable searches and
seizures, if the officer's false statements were
necessary to the determination that a warrant should issue).
plaintiff does assert that the officers executed the search
in an unreasonable manner. Indeed, “searches must be
conducted in a reasonable manner” and not in an
“abusive fashion.” Bell v. Wolfish, 441
U.S. 520, 560 (1979); see Del Raine v. Williford, 32
F.3d 1024, 1040 (7th Cir. 1994) (quoting Bell, 441 U.S. at
560). However, the plaintiff alleges only that the officers
used intimidation as they were armed when they entered his
residence and that they damaged his door and some of his
personal property. It is not unexpected for officers to be
armed when executing a search warrant, or when on duty for
that matter. Also, the harm to the ...