United States District Court, E.D. Wisconsin
ADAM R. MERKEL, Plaintiff,
WAUKESHA COUNTY, WAUKESHA COUNTY SHERIFF DEPARTMENT, and OFFICER SHAWN RIEGE, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
Adam R. Merkel (“Merkel”), who is incarcerated at
the Kettle Moraine Correctional Institution, proceeds in this
matter pro se. He filed a complaint alleging that
the defendants violated his constitutional rights. (Docket
#1). This matter comes before the Court on Plaintiff's
motion to proceed in forma pauperis. (Docket #2).
Plaintiff has been assessed and paid an initial partial
filing fee of $64.84. 28 U.S.C. § 1915(b)(4).
court is required to 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 on December 22, 2017, he was at home in Lannon,
Wisconsin when his wife called 911 because he had been
drinking around their children. Officers from the Waukesha
County Sheriff's Department and the Town of Lisbon Police
Department were dispatched to his home. Merkel initially
allowed the officers to enter his home, but then asked them
to leave, which they refused to do. Three of Merkel's
children had gone over to a neighbor's house before the
officers arrived. The officers went to the neighbor's
house to check on the children, and they were uninjured.
Merkel's fourth child was with him in the home, also
officers asked Merkel to submit to a breathalyzer test and
Merkel refused. Merkel was then placed under arrest for
disorderly conduct for having banged on the neighbor's
door before the police arrived. During the arrest, officers
tackled Merkel to the ground, and his hands were under his
body while the officers tried to handcuff him. An unnamed
female officer threatened to tase Merkel so that other
officers could get handcuffs on him, but the taser was not
ultimately used. After both cuffs were on, defendant Shawn
Riege (“Riege”), an officer in the Waukesha
County Sheriff's Department, assaulted Merkel by kneeing
him in the face multiple times for roughly two minutes.
Merkel was totally defenseless. He sustained injuries to his
mouth and right eye. Merkel believes Riege assaulted him
because he felt a personal need to punish Merkel for drinking
apparently later accused Merkel of biting him during the
arrest. Merkel alleges this did not happen; instead, Riege
“hurt himself in the process [of assaulting Merkel] and
covered it up by saying he was ‘bit.'”
(Docket #1 at 3). Merkel has since been charged with, and
convicted of, battery or threat to a law enforcement officer
in Waukesha County Circuit Court, Case No. 17CF1828.
these allegations, Merkel seeks to bring a claim for damages
based on the physical assault and his wrongful arrest and
conviction. He asks for money damages and for an injunction
requiring police officers within Waukesha County to wear body
cameras that are always turned on.
claims cannot proceed. As to the Waukesha County defendants,
Merkel can proceed against them on a constitutional claim
only if he sufficiently alleges that the municipality itself,
as opposed to one of its officers, caused his constitutional
violation. See Monell v. Dep't of Soc. Servs. of City
of N.Y., 436 U.S. 658 (1978). Monell provides
an avenue for relief against a governmental entity for
constitutional violations that are caused directly by a
policy or custom of the governmental entity. Id. at
694. To maintain a Section 1983 claim against a governmental
entity, the plaintiff must first identify a “policy or
custom” attributable to governmental policymakers.
Gable v. City of Chicago, 296 F.3d 531, 537 (7th
Cir. 2002) (citing Monell, 436 U.S. at 691-94). A
“policy or custom” may take one of three forms:
“(1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express
[governmental] policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; or (3) an
allegation that the constitutional injury was caused by a
person with final policymaking authority.” Id.
(quotation omitted). The plaintiff must also demonstrate
“the requisite causation, ” which means that
“the policy or custom was the ‘moving force'
behind [his] constitutional deprivation.” Id.
has not alleged that Waukesha County or its sheriff's
department has an express policy that compels the assault of
arrestees; indeed, he does not allege that Riege acted in
accordance with, or contravention of, any policy at all. He
also has not alleged that Waukesha County or its
sheriff's department has a widespread practice of
assaulting arrestees; he only makes allegations about his
individual experience. Finally, he does not allege that any
person with final policymaking authority actually caused his
injury. Instead, he alleges that Waukesha County and its
sheriff's department do not use body cameras, which makes
it easier for rogue officers to get away with improper
conduct. This is not an allegation that a policy or practice
of the county actually caused his injury. He cannot proceed
against the county defendants on this theory.
broader problem with Merkel's claims, though, is that
they are barred by the Heck rule. The Court in
Heck v. Humphrey held that a plaintiff who has been
convicted of a crime cannot maintain a Section 1983 claim
where “a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence[, ] . . . unless the plaintiff can demonstrate that
the conviction or sentence has already been
invalidated.” 512 U.S. 477, 487 (1994). The
Heck rule “is intended to prevent ...