United States District Court, E.D. Wisconsin
ETHAN W. MOORE, Plaintiff,
STATE OF WISCONSIN, DEPARTMENT OF CORRECTIONS, LISA YESTES, CHRISTOPHER LINDLOFF, PRISICILLA LAMBERT, JON SCHUBERT, and ELIZABETH LEMEKE, Defendants.
Stadtmueller U.S. District Judge
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.
MOTION TO PROCEED IN FORMA PAUPERIS
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).
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.
SUFFICIENCY OF THE COMPLAINT
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
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
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)).
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”).
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.
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.
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 ...