United States District Court, E.D. Wisconsin
CHRISTOPHER E. ROSS, Plaintiff,
JEREMIAH JACKS, RANDELL SMITH, JAMES HUTCHINSON, PATRICK PAJOT, MICHAEL WASHINGTON, and HAROLD THOMAS, Defendants.
Stadtmueller, U.S. District Judge
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.
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.
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 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.
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.
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.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.”).
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
Jackson I, 2018 WL 2208360, at *4 (citations and
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