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Ross v. Jacks

United States District Court, E.D. Wisconsin

September 23, 2019



          J. P. Stadtmueller, U.S. District Judge

         Plaintiff Christopher E. Ross, who is incarcerated at Waupun 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 $4.17. 28 U.S.C. § 1915(b).

         The 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. § 1915A(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); 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) (citations omitted).

         To 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).

         In 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.

         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)).

         Plaintiff alleges that he was arrested by Defendants, Milwaukee police officers, in February 2015. (Docket #1 at 2). He was not brought before a judge for a determination as to the existence of probable cause to detain him. Id. at 3. Instead, the determination was made ex parte by a court commissioner using a standard form, called a CR-215, employed by city police officers for that purpose, as well as affidavits from the officers themselves. Id. Plaintiff contends that his right to counsel attached at the time the probable cause determination was made using the CR-215 form. Id. He was not, however, provided counsel at that time or allowed to retain an attorney. Id. at 2-3.

         Plaintiff was forced to participate in a lineup related to his alleged crime without counsel present. Id. at 3. He complains that the lineup was suggestive, stating that the witness had separately told the officers that the suspect was white, but she identified Plaintiff in the lineup, though he is black. Id. at 3-4. Plaintiff sole constitutional claim is that Defendants violated his Sixth Amendment right to counsel by forcing him to participate in the suggestive lineup without counsel present, and after his right to counsel had already attached. Id. at 5.

         This Court recently dealt with an identical case. There, Jamey Jackson (“Jackson”) made precisely the same claims regarding use of a CR-215 form and a subsequent lineup against Milwaukee police officers.[1]Jackson v. Devalkenaere, No. 18-CV-446-JPS, 2018 WL 2208360, at *2 (E.D. Wis. May 14, 2018) (“Jackson I”). The Court allowed Jackson to proceed on a Sixth Amendment claim because it appeared that the completion of the CR-215 form did indeed constitute an initial appearance, and thus Jackson's right to counsel attached. Id. This analysis comes from Rothgery v. Gillespie County, 554 U.S. 191 (2008), which held that the right attaches at the suspect's initial appearance, or a state's equivalent of an initial appearance. The Court did have some misgivings about a potential bar to the suit stemming from the doctrine of Heck v. Humphrey, 512 U.S. 477, 487 (1994) (“[A] claim for damages under Section 1983 may not be pursued if its success would necessarily imply the invalidity of a criminal conviction or sentence.”).

         More important for present purposes, however, the Court also discussed the application of qualified immunity. Id. at *3-4. Qualified immunity protects government officials from liability for damages under Section 1983 to the extent their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Court explained:

Rothgery involved the defendant's appearance at a probable cause and bail hearing before a magistrate wherein the magistrate reviewed an affidavit from a police officer regarding the defendant's arrest. Rothgery, 554 U.S. at 196. As the district court in [United States v. West, No. 08-CR-157, 2009 WL 5217976, at *8 (E.D. Wis. Mar. 3, 2009)] observed, Milwaukee County's procedure is functionally identical to that challenged in Rothgery, save that arrestees in Milwaukee County, including [Jackson], do not appear before the judicial officer while that person makes the probable cause and bond determinations. Because of this factual distinction, can it be said that every reasonable officer would have known that [Jackson's] Sixth Amendment right had already attached by the time of the lineup? Or, is it instead more likely that the officers reasonably believed that physical appearance before a judicial officer marked the start of the prosecution for Sixth Amendment purposes? Whatever the answer, this question is best left for appropriate adversarial development.

Jackson I, 2018 WL 2208360, at *4 (citations and quotations omitted).

         The defendants in Jackson's case, taking the Court's suggestion, filed a motion for judgment on the pleadings on the basis of qualified immunity. The defendants did not dispute whether Jackson's Sixth Amendment rights were violated. Jackson v. Devalkenaere, No. 18-CV-446-JPS, 2019 WL 4415719, at *2 (E.D. Wis. Sept. 16, 2019) (“Jackson II”). Instead, they argued that Jackson's right to counsel was not clearly ...

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