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Moore v. State, Department of Corrections

United States District Court, E.D. Wisconsin

August 16, 2019

ETHAN W. MOORE, Plaintiff,
v.
STATE OF WISCONSIN, DEPARTMENT OF CORRECTIONS, LISA YESTES, CHRISTOPHER LINDLOFF, PRISICILLA LAMBERT, JON SCHUBERT, and ELIZABETH LEMEKE, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Plaintiff Ethan W. Moore filed a pro se complaint seeking to overturn his Operating While Intoxicated (“OWI”) conviction and reinstate his driver's license. (Docket #1). He also alleges that his Fourth Amendment rights were violated during an unlawful search and seeks damages pursuant to 42 U.S.C. § 1983. Id. Alongside his complaint, Plaintiff filed a motion to proceed in forma pauperis. (Docket #2). In order to allow a plaintiff to proceed without paying the $400 filing fee, the Court must first decide whether the plaintiff has the ability to pay the filing fee and, if not, whether the lawsuit states a claim for relief. 28 U.S.C. § 1915(a), (e)(2)(B). The Court will address each of these questions below.

         1. MOTION TO PROCEED IN FORMA PAUPERIS

         Although Plaintiff need not show that he is totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), the privilege of proceeding in forma pauperis “is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them, ” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).

         Plaintiff avers that he earns $382.00 per month. (Docket #2 at 2). His wife earns $1, 400.00 per month. Id. They have a minor daughter, a mortgage, car payments, and other household expenses that exceed $2, 000.00 per month. Id. at 2-3. Plaintiff does not have any savings. Id. The Court finds that Plaintiff is indigent for the purposes of prepaying the filing fee. He will be granted leave to proceed in forma pauperis.

         2. SUFFICIENCY OF THE COMPLAINT

         When a plaintiff asks for leave to proceed in forma pauperis, the Court must also screen the complaint and dismiss it or any portion thereof if it 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. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989).

         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). It is not necessary to plead specific facts; rather, the plaintiff's 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 “labels and conclusions” or “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 allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         To state a claim for relief under 42 U.S.C. Section 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 the 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 Relevant Allegations

         Plaintiff alleges that around 1:41 a.m. on August 3, 2013, he was stopped by police officers in Pleasant Prairie, Wisconsin on suspicion of driving while intoxicated. The exhibits to Plaintiff's complaint suggest that a preliminary breathalyzer test indicated a .189 blood-alcohol content. (Docket #1-1 at 4). Plaintiff was subsequently arrested but declined to submit to a blood test. Nevertheless, Plaintiff was taken to a hospital where his blood was drawn without his consent at 3:33 a.m., then again at 4:38 a.m. Id. at 2. A valid search warrant was eventually signed at 3:40 a.m. Id. at 1. Therefore, the police did not secure a search warrant before obtaining the first blood sample. Plaintiff was subsequently charged with an OWI in Kenosha County Case Number 13CT660 (“13CT660”).

         Plaintiff retained attorney Joseph Easton to defend him in that case. Mr. Easton filed a motion to suppress the results of the blood test as the tainted fruit from an unreasonable search and seizure, in violation of the Fourth Amendment. The motion was denied. Plaintiff wanted to file an interlocutory appeal, but Mr. Easton moved to withdraw from the case because he was closing his legal practice in Wisconsin. The judge granted Mr. Easton's motion to withdraw. Plaintiff claims that he wrote a letter to the Wisconsin Court of Appeals requesting an extension of time to file an interlocutory appeal, but the request was denied. Plaintiff subsequently submitted a no contest plea to the OWI charge.

         In January 2017, he was appointed attorney Kyle Lawrence to pursue post-conviction relief. Shortly thereafter, Plaintiff learned that Mr. Lawrence had withdrawn from the case without his knowledge. Attorney Don Bielski was appointed in Mr. Lawrence's place, but Plaintiff had difficulty contacting him. When Mr. Bielski and Plaintiff finally met, Mr. Bielski indicated that he would file the appropriate appeals motions; however, Plaintiff alleges that Mr. Bielski never filed any motions. It is unclear whether Mr. Bielski is still pursuing post-conviction relief on Plaintiff's behalf.

         In his complaint, Plaintiff argues that the blood test results should be suppressed and that his conviction should be overturned due to ineffective assistance of counsel. He requests the following items of relief: a jury trial in 13CT660, the immediate ...


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