United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Bamba Mamadou, who is incarcerated at Stanley Correctional
Institution, proceeds in this matter pro se. He
filed a complaint alleging that Defendants violated his
constitutional rights. (Docket #1). This matter comes before
the court on Plaintiff's motion to proceed without
prepayment of the filing fee (in forma pauperis).
(Docket #2). Plaintiff has been assessed and has paid an
initial partial filing fee of $11.94. 28 U.S.C. §
court shall 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the 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 for the plaintiff to plead specific facts and his
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 mere
“labels and conclusions” or a “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. 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,
alleges that in April 2018, Defendants issued a warrant for
arrest of an alien, as well as an immigration detainer,
against him while he was incarcerated in the Wisconsin
Department of Corrections (“DOC”). (Docket #1 at
3). Plaintiff asserts that the warrant and detainer are not
valid for two reasons. First, they were not served on him by
an immigration officer as required by federal law.
Id. Second, even if service was completed
appropriately, Defendants lacked probable cause to issue the
warrant and detainer. Id. at 3-4. Plaintiff states
that he was granted asylum and therefore cannot be deported
or removed. Id. at 4. Plaintiff complains that the
immigration detainer is preventing him from entering a work
release program that would allow him to be more quickly
released from prison. Id. Plaintiff asks for
declaratory and injunctive relief, namely that the warrant
and detainer be declared unlawful and removed from him.
Id. at 5.
claim is an unusual one, but it appears to the Court that it
arises under the Fourth Amendment. Immigration warrants must
be based on probable cause, just like any other warrant.
Morales v. Chadbourne, 793 F.3d 208, 214-18 (1st
Cir. 2015). It is unclear whether DOC officials were
authorized to serve the warrant. See Tenorio-Serrano v.
Driscoll, 324 F.Supp.3d 1053, 1064 (D. Ariz. 2018)
(discussing agreements between state and federal officials
concerning the performance of the duties of an immigration
officer). In any event, if the warrant is for some reason
invalid, Plaintiff's Fourth Amendment rights may have
Court has many other concerns with the case. Does the state
retain complete discretion to allow Plaintiff into the work
release program, thereby undermining Plaintiff's
assertion that the detainer is the only thing standing in his
way? Is there an administrative complaint process that
Plaintiff should have first engaged with to address his
issues with the warrant and detainer before filing this
lawsuit? Does qualified immunity apply? The Court will leave
these and other matters to further development on a more
the Court will allow Plaintiff to proceed only against
Defendant Craig Groninger (“Groninger”). Because
Plaintiff sues federal officials for violation of his Fourth
Amendment rights, his claim arises under 28 U.S.C. §
1331 and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). Liability for
constitutional violations under Bivens requires the
personal involvement of the government official in question.
Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir.
1994). Plaintiff does not allege that Defendants Kirstjen
Nielsen (who is no longer the Secretary of the Department of
Homeland Security, in any event) and Thomas Homan were
involved in this case in anything more than a supervisory
role. This is insufficient to state a claim against either of
them. McCree v. Sherrod, 408 Fed.Appx. 990, 993 (7th
the Court notes that Plaintiff previously filed a motion for
a preliminary injunction and a temporary restraining order.
(Docket #9). The motion seeks the same injunctive relief that
animates this entire case- quashing the warrant and removing
the detainer. Motions for injunctive relief require
substantial evidentiary showings and are rarely granted.
Knox v. Shearing, 637 Fed.Appx. 226, 228 (7th Cir.
2016). The Court finds that the record is underdeveloped and
does not permit it to grant or deny the motion at this time.
Plaintiff's only evidence in favor of the motion is an
affidavit. (Docket #11). Without any corroborating
documentary evidence, the Court cannot say that Plaintiff is
entitled to the relief he seeks. It will, therefore, wait to
address the motion until Groninger has been served with the
complaint and has entered his appearance in the case. The
Court directs that Groninger should file a response to the
motion within fourteen days of his appearance in the case.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that Defendants Kirstjen Nielsen
and Thomas Homan be and the same are hereby
DISMISSED from this action;
IS FURTHER ORDERED that the United States Marshal
shall serve a copy of the complaint and this order upon
Defendant Craig Groninger pursuant to Federal Rule of Civil
Procedure 4. Plaintiff is advised that Congress requires the
U.S. Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The current fee for
waiver-of-service packages is $8.00 per item mailed. The full
fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). Although Congress requires the Court to
order service by the U.S. Marshals Service precisely ...