United States District Court, E.D. Wisconsin
ANTHONY L. TROUPE, Plaintiff,
LAVONTAY FENDERSON et al., Defendants.
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE AND REPORT AND RECOMMENDATION TO DISMISS
JOSEPH United States Magistrate Judge.
October 11, 2019, Anthony L. Troupe filed an amended
complaint against twenty-six individuals under 42 U.S.C.
§ 1983. (Docket # 5.) Troupe also moves for leave
to proceed without prepayment of the filing fee (in forma
pauperis). (Docket # 3.) Because I find that Troupe is
indigent and his amended complaint states a claim as to some
of the defendants, his motion will be granted. However, I
will recommend that the case be dismissed as to those
defendants against whom the amended complaint does not state
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure indigent litigants meaningful
access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Nietzke v. Williams, 490 U.S.
319, 324 (1989). To authorize a litigant to proceed in
forma pauperis, the court must first determine whether
the litigant is able to pay the costs of commencing the
action. 28 U.S.C. § 1915(a). Second, the court must
determine whether the action is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
standards for reviewing dismissal for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are the same
as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). In evaluating whether a
plaintiff's complaint fails to state a claim, a court
must take the plaintiff's factual allegations as true and
draw all reasonable inferences in her favor. Id. at
612. Although a complaint need not contain
“‘detailed factual allegations, '” a
complaint that offers “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
to Troupe's motion, he is unemployed and has no income or
assets. (Docket # 3 at 1-4.) I therefore conclude that he is
unable to pay the filing fee and turn to the question of
whether his complaint is frivolous, malicious, or fails to
state a claim. To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must allege: (1) that he was
deprived of a right secured by the Constitution or laws of
the United States and (2) that the person who deprived him of
that right acted under color of state law. Gomez v.
Toledo, 446 U.S. 635, 640 (1980). Because Troupe is
representing himself, I construe his complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106
states that the defendants violated his rights under the
Fourth Amendment (Docket # 5 at 2), which protects against
unreasonable searches or seizures. Troupe alleges that on
March 29, 2018, he was followed by unmarked cars in Racine as
he returned to HALO, the shelter where he apparently lived.
(Id. at 3.) He was unable to find his belongings,
and asked security of S.C. Johnson Wax Headquarters to call
police to help find them. (Id. at 3-4.) Police
officers responded, including defendants Fenderson and
Amundsen. (Id. at 4.) Amundsen offered to drop
Troupe off at HALO, but Troupe insisted on riding with
Fenderson. (Id. at 4.) At HALO, Troupe was unable to
locate his belongings and went outside to look for HALO's
security staff. (Id. at 5.) Once outside, a
spotlight shone in his face and he was getting yelled at.
(Id.) He felt stings, someone forcing his head down
from his neck, another pulling his pants down, ringing in his
ears, and inability to close his jaw, before he blacked out
completely. (Id.) He believes he was handcuffed more
than once and was unable to defend himself from the blows to
the face while a hand was pressing on the side of his neck.
(Id.) Troupe states that he woke up feeling groggy
in a room with armed, uniformed men asking him questions.
(Id.) Troupe attaches to his amended complaint
police reports documenting the incident by defendants Thill
(Docket # 5-1 at 9-11), Neubauer (id. at 12- 13),
Dummer (id. at 14-19), Amundsen (id. at
22-29), Longrie (id. at 30-32), Wassil (id.
at 33-35), Fenderson (id. at 36-39), and Frieri
Gaines (id. at 40-42). Reports indicate that Officer
Webb was also present. (Id. at 15, 24, 30, 36.) I
conclude that, very liberally construed, Troupe's
complaint states a claim against these officers for use of
excessive force or unlawful arrest in violation of the Fourth
Amendment under 42 U.S.C. § 1983.
Troupe lists Brehm as a defendant, her report indicates that
she was not on the scene and her only involvement was to
arrive at the emergency room afterward to photograph
Troupe's injuries. (Docket # 5-1 at 20-21.) Several other
defendants affiliated with law enforcement were not at the
scene but merely reviewed other officers' reports,
including Richard W. Rivers (id. at 20), Michael E.
Smith (id. at 8), Joseph R. Spaulding (id.
at 12, 14, 19, 30, 33, 36), and Steven R. Herold
(id. at 22). As none of these individuals is alleged
to have been involved in the incident with Troupe and
therefore cannot have violated Troupe's Fourth Amendment
rights, I will recommend that they be dismissed from this
Troupe alleges that Officers Hamad and Leax prevented him
from going to court on April 2, 2018. (Docket # 5 at 6.)
There is no defendant named Leax, and even after an
opportunity to amend, Troupe has provided insufficient
information about this alleged incident for me to infer
deprivation of a constitutional right. Therefore, I will
recommend that Hamad be dismissed from this action.
the documents Troupe provided contain some references to the
remaining defendants, the amended complaint does not allege
any specific actions by them and therefore does not state any
claim against them on which relief could be granted.
Accordingly, I will recommend that the following defendants
be dismissed: Alice Rudebusch, Emily S. Mueller, Samuel A.
Christensen, Faye M. Flancher, Jamie M. McClendon, Charles
Constantine, Robert Goepel, Timothy D. Boyle, Kelly Larsen,
and Terrance Kallenbach.
THEREFORE, IT IS ORDERED that Troupe's motion to proceed
without prepayment of the filing fee (Docket # 3) is GRANTED.
THEREFORE RECOMMENDED that Defendants Hamad, Rudebusch,
Mueller, Christensen, Flancher, McClendon, Constantine,
Goepel, Boyle, Larsen, Kallenbach, Brehm, Herold, Rivers,
Spaulding, Smith, and Van Hecke be DISMISSED.
attention is directed to General L.R. 72(c), 28 U.S.C. §
636(b)(1)(B) and Federal Rules of Criminal Procedure 59(b),
or Federal Rules of Civil Procedure 72(b) if applicable,
whereby written objections to any recommendation or order
herein, or part thereof, may be filed within fourteen (14)
days of the date of service of this recommendation or order.
Objections are to be filed in accordance with the Eastern
District of Wisconsin's electronic case filing
procedures. Failure to file a timely objection with the