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Griffin v. Zientek

United States District Court, E.D. Wisconsin

October 29, 2019

GABRIEL GRIFFIN, Plaintiff,
v.
JEFFREY ZIENTEK, Defendant.

          ORDER

          J.P. STADTMUELLER, U.S. DISTRICT JUDGE

         Plaintiff 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.

         The 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).

         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); 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).

         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; 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.

         In 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.

         To 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)).

         Plaintiff 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).[1]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.

         “[A] 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).

         Plaintiff 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.

         If the 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.

         The 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.

         Accordingly, 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;

         IT IS FURTHER ORDERED that on or before November 19, 2019, the plaintiff shall file an amended pleading curing the defects in ...


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