Suquet v. Green Bay Police Department

Filing 3

ORDER signed by Chief Judge William C Griesbach on 4/2/15 granting 2 Motion for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that on or before May 15, 2015, the plaintiff shall file an amended pleading curing the defects in the original complaint. (cc: all counsel and via US Mail to Miguel Suquet) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MIGUEL SUQUET,
Plaintiff,
v.

Case No. 15-CV-325

GREEN BAY POLICE DEPARTMENT,
Defendant.

ORDER

Plaintiff Miguel Suquet has brought an action under 42 U.S.C. § 1983 against the Green Bay
Policy Department. He has also filed a motion for leave to proceed in forma pauperis. Ordinarily,
a plaintiff must pay a statutory filing fee of $350 to bring suit in federal court. 28 U.S.C. § 1914.
The federal in forma pauperis statute, 28 U.S.C. § 1915, however, insures indigent litigants
meaningful access to the federal courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section
1915 authorizes an indigent party to commence a federal court action, without costs and fees, upon
submission of an affidavit asserting an inability “to pay such fees or give security therefor” and
stating “the nature of the action, defense or appeal and the affiant’s belief that the person is entitled
to redress.” 28 U.S.C. § 1915(a).
Plaintiff has filed the required affidavit of indigence. Review of that affidavit and the
complaint reveals that Plaintiff is presently homeless with no income other than disability
compensation. Based on Plaintiff’s affidavit of indigence, the Court is satisfied that he meets the
poverty requirements of 28 U.S.C. § 1915.

Recognizing that some nonpaying litigants may attempt to abuse this privilege, however,
Congress also authorized the courts to dismiss such a case if the allegation of poverty is untrue, or
if satisfied that the action (1) is frivolous or malicious, (2) fails to state a claim on which relief may
be granted, or (3) seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2).
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). “[T]he purpose of Rule 8 is to provide a defendant with fair notice of the claims
against him.” Hahn v. Walsh, 762 F.3d 617, 632 (7th Cir. 2014). “It is enough to name the plaintiff
and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will
let the defendant investigate. A full narrative is unnecessary.” Kolupa v. Roselle Park Dist., 438
F.3d 713, 714 (7th Cir.2006). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). 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.
(citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

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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.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North 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)).
Here, Plaintiff has provided very little information as to what happened to him. He alleges
“pure police brutality” when police failed to “stud[y] the crime seen [sic] and tak[e] action[,]”
without further explanation, and that police “literally beat[] [Plaintiff] and dislocat[ed] [his] arm.”
(ECF No. 1 at 3.) Ordinarily, even a pro se litigant must provide basic factual information such as
when the incident occurred and where, and to the best of the pleader’s knowledge, who injured him.
On the other hand, the allegation that police beat the plaintiff and dislocated his arm might be
sufficient to satisfy notice pleading in certain circumstances.
Plaintiff has also enclosed a CD-R with the complaint. The complaint states, without more,
that the video shows the alleged police brutality. The Seventh Circuit has held that it is proper for
the district court to review a video attached to a complaint in deciding whether a complaint states
a claim for relief, reasoning that the video should be treated for pleading purposes like a contract
attached to a complaint. See Bogie v. Rosenbery, 705 F.3d 603, 608–09 (7th Cir. 2013) (“[I]t makes
‘eminently good sense’ to apply [principles applicable to appended documents] to video recordings
attached to or referenced in a complaint[.]”).

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The court has thus reviewed the video and it does not appear to show any police brutality.
It shows security footage from a convenience store. A time just before midnight and the date
November 24, 2012 is shown on the video, presumably when the incident occurred. It shows a man,
presumably the plaintiff, who is brought to the ground by the store clerk and another individual after
the man had entered the area behind the counter of the store. The video has no sound, but it appears
the man was attempting to rob the convenience store because he is withdrawing money from the cash
register just before the clerk hits him with a baseball bat and the man is taken down. The police
arrive on the scene a few minutes later and relieve the citizens in restraining the man. A few minutes
after police arrive, the man is brought to his feet and taken out of the view of the security camera.
In light of the video, Plaintiff’s conclusory allegation of police brutality and a dislocated
shoulder, without any indication of where the incident occurred or how he was injured, is insufficient
to state a claim. Given what appears to be officers responding to an attempted robbery and a
physical altercation, the responding officers’ actions appear entirely reasonable. It should be noted,
however, that the video does not conclusively rule out the possibility that police used excessive force
in restraining and apprehending the man. It is a low quality video that essentially shows frame-byframe still shots at a rate of about one image per second. There is a brief stretch of a few minutes
in which several officers are huddled over the man on the floor and the nature and extent of the
officers’ contact with the man is not clear.
Accordingly, the complaint will be dismissed for failure to state a claim but the Plaintiff will
be granted leave to amend the complaint. If the plaintiff wants to proceed, he must file an amended
complaint curing the deficiencies in the original complaint as described herein. To do so, Plaintiff
must state the basic facts setting forth the name of the defendant or defendants, what each defendant

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actually did to him that he thinks amounts to excessive force, when it occurred, and where. If
Plaintiff does not know the names of the officers and is unable to find out their names, he may use
a fictitious name, like John Doe # 1 and John Doe #2, for now, with the understanding that once the
identity is known, the complaint can be amended. Plaintiff must file such an amended complaint on
or before May 15, 2015. Failure to file an amended complaint within this time period will result in
dismissal of this action.
The plaintiff is advised that 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, it will be screened pursuant to 28 U.S.C. § 1915.
ORDER
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis is hereby GRANTED.
IT IS FURTHER ORDERED that the complaint is SUMMARILY DISMISSED.
IT IS FURTHER ORDERED that on or before May 15, 2015, the plaintiff shall file an
amended pleading curing the defects in the original complaint as described herein.
Dated this 2nd day of April, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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