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Ward v. Kenosha Police Department

United States District Court, E.D. Wisconsin

March 13, 2019

LATHAN STEVEN WARD, Plaintiff,
v.
KENOSHA POLICE DEPARTMENT, DETECTIVE BUREAU, JENNIFER A. PHAN, OFFICER PETER FALK, TYLER SCHEND, TIMOTHY A. SCHAN, THOMAS A. HANSCHE, SGT. NICHOLS, JEREMY M. DEWITT, BRENNAN, SHESKEY, PARO, MORTON, KOSS, FISH, CURI, THORNE, and BAUER, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         Plaintiff 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.

         1. Motion to Proceed without Prepayment of the Filing Fee

         The 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.

         2. Screening of the Complaint

         The 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. § 1915A(b).

         To 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).

         To 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)).

         2.1 Allegations in the Complaint

         The 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. at 5.

         2.2 Analysis

         The 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).[1]

         Moreover, 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).

         The 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 ...


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