United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
Gabriel Griffin proceeds in this matter pro se. He
filed a complaint alleging that Defendant violated his
constitutional rights. (Docket #1). This matter comes before
the court on Plaintiff's petition to proceed without
prepayment of the filing fee (in forma pauperis).
(Docket #2). Plaintiff has timely paid his initial partial
filing fee of $22.52. The Court will therefore proceed with
screening the action.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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).
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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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. § 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);
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court
is obliged to give 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)).
claims that on April 11, 2018, Defendant Jeffrey Zientek
(“Zientek”) knowingly, or with reckless disregard
for the truth, made false statements in an affidavit in
support of a search warrant. (Docket #1 at 2).Jeffrey
Zientek's statements were made with “malicious
intent” and were done “to mislead the warrant
issuing judge as well as the defendant's evil motive
against the plaintiff for filing a previous civil 42 U.S.C.
§ 1983 action.” Id. at 1-2.
warrant request violates the Fourth Amendment if the
requesting officer knowingly, intentionally, or with reckless
disregard for the truth, makes false statements in requesting
the warrant and the false statements were necessary to the
determination that a warrant should issue.” Knox v.
Smith, 342 F.3d 651, 658 (7th Cir. 2003). In order to
state a claim for an unlawful acquisition of a warrant,
Plaintiff must allege facts that allow the Court to infer
that (1) the officer made false statements; and (2) without
those false statements, the warrant would have been invalid.
Olson v. Champaign Cty., Ill., 784 F.3d 1093,
1100-01 (7th Cir. 2015).
has not adequately pled facts that state a claim for a
violation of his Fourth Amendment rights. First, his
allegations are conclusory and utterly devoid of factual
content-he does not state what the warrant was for, or what
the false statements were. He merely states that Zientek made
false statements knowingly, or with reckless disregard for
the truth. This does not provide the Court with any factual
content, even liberally construed, from which the Court can
infer that a constitutional violation occurred. Second,
Plaintiff does not allege that the false statements, whatever
they may have been, were necessary to the issuance of the
warrant, nor does he allege facts that would allow the Court
to infer that this is the case. In light of these two
shortcomings, Plaintiff has not stated a claim for a
violation of his Fourth Amendment rights.
plaintiff wishes to proceed, he must file an amended
complaint curing the deficiencies in the original complaint
as described herein. Such amended complaint must be filed on
or before November 19, 2019. Failure to file
an amended complaint within this time period may result in
dismissal of this action.
amended complaint must bear the docket number assigned to
this case and must be labeled “Amended
Complaint.” The amended complaint supersedes the prior
complaint and must be complete in itself without reference to
the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056-57 (7th Cir. 1998). In Duda, the appellate
court emphasized that in such instances, the “prior
pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at
1057 (citation omitted). If an amended complaint is received,
the Court will screen it pursuant to 28 U.S.C. § 1915A.
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IS FURTHER ORDERED that on or before
November 19, 2019, the plaintiff shall file
an amended pleading curing the defects in ...