Bland v. Milwaukee Police Department et al

Filing 11

ORDER signed by Chief Judge William C Griesbach on 11/7/2014 denying 9 MOTION to Amend/Correct Complaint.. (cc: Allen Bland via U.S. Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ALLEN BLAND,
Plaintiff,
v.

Case No. 14-C-824

MILWAUKEE POLICE DEPT., et al.
Defendants.

ORDER

The pro se plaintiff filed an amendment complaint that failed to comply with this Court’s
original screening order. Nevertheless, I allowed portions of the complaint to proceed and directed
service on the Defendants. Plaintiff has now filed a motion to amend, which in actuality is a motion
for reconsideration since he asks to reinstate claims against several parties that the Court had already
dismissed.
Plaintiff insists that he states a claim against Milwaukee Police Chief Edward Flynn, who
turned the proverbial “blind eye” to Fourth Amendment violations committed by his officers and
had an official custom or policy of allowing constitutional violations in his department. A claim
like this is subsumed in Plaintiff’s Monell claim against the City of Milwaukee, however, because
it alleges that the chief, in his official capacity, maintained such a policy. Monell v. Department
of Social Services of City of New York, 436 U.S. 658 (1978). Under Monell, municipalities are
subject to damages under § 1983 in three situations: when the plaintiff was injured pursuant to an
expressly adopted official policy, a long-standing practice or custom, or the decision of a “final

policymaker.” Here, Plaintiff’s “custom and practice” claim against the chief is the same as the
claim against the City. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits
... generally represent only another way of pleading an action against an entity of which an officer
is an agent ....”) There is no need to maintain a claim against both the City and Chief Flynn in his
official capacity.
To the extent Plaintiff tries to sue Chief Flynn in his individual capacity, he has to plead
some kind of action or inaction on Flynn’s part that is specific to his arrest. It is not enough to
allege that the chief “turned a blind eye” when all we are talking about is a single allegedly unlawful
arrest. If the chief specifically approved of that arrest, it would be one thing. Morfin v. City of East
Chicago, 349 F.3d 989, 1001 (7th Cir. 2003) (“If the record suggested that Chief Alcala had
knowledge of facts that would cause him to believe that Officer Kovats was about to make an
unconstitutional arrest but failed to use his authority to stop the violation, his failure would result
in liability under § 1983.”) But here the claim is simply that the chief had some kind of general
policy of condoning illegal arrests, and that is the essence of the Monell claim against the City
discussed above. It does not state a claim against the chief individually.
To the extent Plaintiff seeks to revive his claim of a vast conspiracy involving multiple
named and unnamed officers, that effort will be denied for the reasons already given. Cooney v.
Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) (before subjecting defendants to “paranoid pro se
litigation ... alleging ... a vast, encompassing conspiracy,” the plaintiff must meet a “high standard
of plausibility”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). At its core, Plaintiff’s
allegation is that he was unlawfully arrested. He has been allowed to proceed against four officers

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and the City itself, and there is no reason apparent from the complaint to turn the case into an allencompassing probe of the entire criminal justice system in Milwaukee County.
Plaintiff also asks that any claims calling into question the validity of his conviction be
stayed pending his exhaustion of the habeas process in state courts. That request will be denied.
The statute of limitations does not begin running until the such claims are exhausted, so there is no
need to stay them.

Dated at Green Bay, Wisconsin, this 7th day of November, 2014.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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