Lawrence v. Grbich et al

Filing 14

ORDER signed by Judge J P Stadtmueller on 9/9/09 as follows: granting 11 plaintiff's motion to amend complaint; the clerk of court shall docket plaintiff's 11/17/08 motion to amend complaint as the Amended Complaint in this case; John Cas tor, George M. Grbich, Jr., and Officer Roger W. Mortens are dismissed as defendants in this action; the following parties are added as defendants in this action: Officer Joseph Lewandowski, Officer Katie Gierack, Officer Nelson, Officer Randolph G. Scott, Officer Mark S. Tebo, Officer Dennis M. Davidson, Det. Tech. Lisa Hudson, Det. Michael A. Deisinger, Det. Ralph R. Torrez, and the Wauwatosa Police Department; the City of Wauwatosa shall be substituted for the Wauwatosa Police Department as a defendant; the U.S. Marshal shall serve a copy of the complaint, summons and this order upon the defendants as specified; ordering defendants to file a responsive pleading to the complaint; directing the Secretary of the Wisconsin Dept of Correction s or his designee to collect from the plaintiffs prison trust account the balance of the filing fee by collecting monthly payments and forwarding same to the clerk of the court as specified. See Order. (cc: plaintiff, Warden of New Lisbon Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
A A R O N D. LAW R E N C E , P l a i n t if f, v. O F F IC E R JOSEPH LEW A N D O W S K I, OFFICER KATIE GIERACK, OFFICER NELSON, OFFICER RANDOLPH G. SCOTT, OFFICER MARK S. TEBO, OFFICER DENNIS M. DAVIDSON, DETECTIVE TECHNICIAN LISA HUDSON, DETECTIVE MICHAEL A. DEISINGER, DETECTIVE RALPH R. TORREZ, and CITY OF W A U W A T O S A , D e fe n d a n ts . C a s e No. 08-C-108

DECISION AND ORDER
T h e plaintiff, Aaron Lawrence, who is proceeding pro se, lodged a complaint a lle g in g that his civil rights were violated. The court granted the plaintiff's petition to p ro c e e d in forma pauperis and has given him several opportunities to amend his c o m p la in t. This matter is now before the court on the plaintiff's motion to amend the c o m p la in t and for screening of the plaintiff's amended complaint. M O T IO N TO AMEND COMPLAINT L e a ve to amend a pleading should be freely given "when justice so requires." S e e Fed. R. Civ. P. 15(a)(2). The decision on whether to allow the amendment is w ith in the discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). R e a s o n s for denying a motion to amend include "undue delay, bad faith, dilatory

m o tive on the part of the movant, repeated failure to cure deficiencies by a m e n d m e n ts previously allowed, undue prejudice to the opposing party by virtue of a llo w a n c e of the amendment, or futility of the amendment." Id. at 182. In this case, the plaintiff was directed to file a motion to amend his complaint to name the individuals he intended to sue as defendants. He has done so. Thus, th e court will grant the plaintiff's motion to amend complaint and construe the d o c u m e n t as the plaintiff's amended complaint. Because the defendants are named o n the page entitled "Motion to Amend Complaint," and the next page begins with th e "Statement of Facts," the court will consider the entire document the plaintiff's a m e n d e d complaint and will use the court's pagination at the bottom of each page ra th e r than the page numbers used by the plaintiff. In the caption of the amended complaint, the plaintiff lists the defendants s im p ly as "Grbich, et al." (Am. Compl. at 1). Normally, an individual must be named in the caption to become a party. Myles v. United States, 416 F.3d 551 (7th Cir. 2 0 0 5 ). It is unacceptable for a court to add litigants on its own motion. Id. However, it is clear to the court that the plaintiff intends to amend his complaint to sue the in d iv id u a ls named in their individual capacities, as well as the W a u w a to s a Police D e p a rtm e n t. Thus, the court will consider the plaintiff's claims against the following d e fe n d a n ts : Officer Joseph Lewandowski, Officer Katie Gierack, Officer Nelson, O ffic e r Randolph G. Scott, Officer Mark S. Tebo, Officer Dennis M. Davidson, Det.

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T e c h . Lisa Hudson, Det. Michael A. Deisinger, Det. Ralph R. Torrez, and the W a u w a to s a Police Department. T h e court notes that the plaintiff also named Officer Roger W . Mortens as a d e fe n d a n t, but the complaint contains no allegations of personal involvement by O ffic e r Mortens. Thus, he will be dismissed as a defendant in this action. S C R E E N IN G OF AMENDED COMPLAINT T h e court is required to screen complaints brought by prisoners seeking relief a g a in s t a governmental entity or officer or employee of a governmental entity. 28 U .S .C . § 1915A(a). The court must dismiss a complaint or portion thereof if the p ris o n e r 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 d e fen d a n t who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in f a c t . Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

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T o state a cognizable claim under the federal notice pleading system, the p la in tiff is required to provide a "short and plain statement of the claim showing that [h e ] 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 w h a t the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 )) . However, a complaint that offers "labels and conclusions" or "formulaic re c itatio n of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U .S . ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). To s ta te a claim, a complaint must contain sufficient factual matter, accepted as true, "th a t is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. a t 570). "A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint

a lle g a tio n s "must be enough to raise a right to relief above the speculative level." T w o m b ly , 550 U.S. at 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are n o more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. C t. at 1950. Legal conclusions must be supported by factual allegations. Id. If there

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a re well-pleaded factual allegations, the court must, second, "assume their veracity a n d then determine whether they plausibly give rise to an entitlement to relief." Id. T o 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 S ta te s ; and (2) the deprivation was visited upon him by a person or persons acting u n d e r color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 8 2 7 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7 th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is o b lig e d to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tru c tio n . See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (q u o tin g Estelle v. Gamble, 429 U.S. 97, 106 (1976)). I. AV E R M E N T S IN AMENDED COMPLAINT O n August 10, 2006, at approximately 6:10 a.m., the plaintiff entered W a lte r 's , a bar in W a u w a to s a , W is c o n s in , through the back door. (Am. Compl. at 2). The p la in tiff alleges that he intended only to use the restroom. Id. He headed towards th e bathroom, but realized it was occupied. Id. He then heard a click that he b e lie ve d was the engagement of a gun. Id. The plaintiff turned from the restroom to the exit, but was confronted at gunpoint by defendant Grbich. Id. Grbich and the p la in tiff had a conversation in which the plaintiff explained that he came in to use the re s tro o m and possibly to get something to eat. Id. He also explained that he had

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s o m e change, but had lost the bulk of his currency through a hole in his pocket, and h e showed Grbich his pocket. Id. Grbich lowered the gun, walked back to the bar and informed the plaintiff that h e was just part of the cleaning crew and that the cook would not be in until 10:00 a .m . (Am. Compl. at 2-3). The plaintiff sat down on a bar stool, "feeling rejected and s n u b b e d ." (Am. Compl. at 3). Defendant Castor emerged from the restroom and G rb ich told Castor that the plaintiff was there to rob them. Id. The plaintiff

c h a ra c teriz e d Grbich's statement to Castor as a "slanderous accusation." Id. The p la in tiff stated that he was not there to rob anyone, but Grbich told Castor to get s o m e pool cues. Id. Armed with a pool cue, Grbich told the plaintiff to leave and n e ve r come back. Id. The plaintiff remained silent because he was unsure how to r e a c t. Id. Grbich walked back past the plaintiff, went behind the bar, offered the p la in tiff some change and threw two rolls of quarters at him. Id. One of the rolls b ro k e open. Id. Grbich and Castor picked up the quarters and put them on the bar in front of th e plaintiff. (Am. Compl. at 4). The plaintiff picked up the quarters and put them in h is front right pocket. Id. Grbich told the plaintiff that he wouldn't call the police if the p la in tiff just left. Id. Grbich then offered the plaintiff one more roll of quarters. Id. T h e plaintiff sarcastically responded, "how about two?" Id. Castor then came from b e h in d the bar armed with a pool cue and told the plaintiff he was only getting one. Id . Castor told the plaintiff, "Get your black ass out of here" and struck the plaintiff

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o n the left side of his head with the pool cue. Id. Grbich then struck the plaintiff's b o d y with a pool cue. Id. The plaintiff regained his footing and took a set of keys off th e bar. Id. He escaped out the back door and fled "in fear for his life." (Am. Compl. a t 5). G rb ich and Castor chased the plaintiff out of the bar. Id. The plaintiff asserts t h a t he narrowly avoided being struck by a black SUV driven by Grbich when he c ro s s e d the street several blocks later. Id. The plaintiff cut through several lawns to avoid being taunted by Grbich from the car. Id. Meanwhile, Castor called the W a u w a tos a police and reported an armed robbery. Id. T h e plaintiff ran towards a W a u w a to s a police offer. Id. Officer Lewandowski h a d his gun drawn and pointed in the direction of the plaintiff. Id. Nevertheless, the p la in tiff continued towards the officer for safety, but he slipped on wet grass. Id. O ffic e r Lewandowski ordered the plaintiff to stay down, and the plaintiff complied by ro llin g onto his stomach face down. Id. After a verbal exchange in which Officer L e w a n d o w s k i asked the plaintiff for a knife, the plaintiff reached for his back pocket a n d was suddenly immobilized by a tazer. (Am. Compl. at 5-6). The plaintiff was subsequently searched by a female officer. (Am. Compl. at 6 ). The plaintiff was handcuffed and, after the search, put in a squad car. Id. No k n ife was found. Id. The plaintiff had a hard time breathing in the back of the squad c a r with the windows up. Id. At the time, the plaintiff also noticed that his pants were w e t in the groin area because he had urinated during the surge from the tazer. Id.

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T h e plaintiff repeatedly asked one of the officers to roll down the squad car window. (A m . Compl. at 7). Officers Lewandowski, Gierack and Nelson ignored the plaintiff's re q u e s t. Id. D u rin g booking at the W a u w a to s a Police Department, the plaintiff began s u ffe rin g from chest pains. Id. His requests for medical assistance were met with in s u lts . Id. At approximately 11:05 a.m., the plaintiff began an interview with D e te c tive Ralph Torrez and Detective Dennis Davidson. (Am. Compl. at 8). The p la in tiff informed defendants Torrez and Davidson of "the serious medical needs and h u n g e r." Id. The plaintiff was offered a cup of water and promised that he would be fre e after the interview. Id. At 2:50 p.m., defendant Hudson made contact with the p la in tiff to obtain a buccal swab. Id. She indicated that he would be given

s o m e th in g to eat and receive medical attention if he submitted a swab. Id. The plaintiff asks for monetary damages from all of the defendants. (Am. C o m p l. at 11). He also asks for punitive damages from the detectives and officers o f the W a u w a to s a Police Department. Id. II. D I S C U S S IO N A. Claims against Grbich and Castor

T h e plaintiff's claims against defendants Grbich and Castor do not arise under § 1983. The plaintiff does not suggest that they were acting under the color of state la w . Rather, he brings claims against these defendants under the Civil Rights Act o f 1964 and 42 U.S.C. § 1981, as well as a tort claim for defamation of character.

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F irs t, the plaintiff avers that he was subjected to racial discrimination in vio la tio n of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, when Grbich refused him s e rv ic e and told him to leave and never come back and when Castor called him a "ra c ia l name." (Am. Compl. at 9). Title II of the Civil Rights Act of 1964 provides that "[a ]ll persons shall be entitled to the full and equal enjoyment of the goods, services, f a c ilitie s , privileges, advantages, and accommodations of any place of public a c c o m m o d a tio n , as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin." 42 U.S.C. § 2000a. However, u n lik e many other civil rights statutes, 42 U.S.C. § 2000a allows only for prospective re lie f and does not authorize damages. See 42 U.S.C. § 2000a-3; Bass v.

P a r k w o o d Hosp., 180 F.3d 234, 244 (5th Cir. 1999) (citing Newman v. Piggie Park E n te r s ., Inc., 390 U.S. 400 (1968)); see also Hornick v. Noyes, 708 F.2d 321, 324 (7 th Cir. 1983). Thus, even accepting as true the plaintiff's allegations that he was d is c rim in a te d against on the basis of his race, this statute does not provide a cause o f action for damages against the defendants. See Bass, 180 F.3d at 244. T h e plaintiff also makes allegations of intentional infliction of emotional d is tre s s and profile discrimination under Section 1981 of Title 42 of the United States C o d e , which provides that "[a]ll persons within the jurisdiction of the United States s h a ll have the same right in every State and Territory to make and enforce contracts, a s is enjoyed by white citizens . . ." and defines making and enforcing of contracts a s "the making, performance, modification, and termination of contracts and the

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e n jo ym e n t of all benefits, privileges, terms, and conditions of the contractual re la tio n s h ip ." 42 U.S.C. § 1981. More commonly, litigants invoke § 1981 to assert th e ir rights to be free from discrimination while making and enforcing employment c o n tra c ts , but courts have evaluated § 1981 claims made by plaintiffs who allege that th e y faced illegal discrimination in retail establishments. See Morris v. Office Max, In c ., 89 F.3d 411 (7th Cir. 1996). To establish a prima facie claim under § 1981, the p la in tiff must show that: (1) he is a member of a racial minority; (2) the defendants h a d the intent to discriminate on the basis of race; and (3) the discrimination c o n c e r n e d the making or enforcing of a contract. Id. at 413. According to the p la in tiff, there were just the three men in the bar and Grbich made clear to the p la in tiff that they were unable to sell him food. Thus, there was no contract to be m a d e or enforced. The plaintiff has not set forth a claim under § 1981. Finally, the plaintiff asserts a proposed defamation of character claim against d e fe n d a n t Grbich based on Grbich telling defendant Castor that the plaintiff was th e re to rob them, and Grbich throwing money at the plaintiff to degrade his p re s e n c e and his intention. The complaint fails to allege sufficient facts to indicate th a t these claims would constitute violations of federal law. Further, the complaint fa ils to contain allegations sufficient to permit the court to exercise its jurisdiction on th e basis of the diversity of the parties. See 28 U.S.C. § 1332; Hart v. FedEx G ro u n d Package Sys. Inc., 457 F.3d 675, 676 (7th Cir. 2006). Therefore, the only w a y these complaints may be pursued in federal court is if they constitute violations

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o f state law, thereby making it appropriate for the court to exercise its supplemental ju ris d ic tio n over these claims due to the fact that they are related to the plaintiff's u n d e rlyin g federal law claims. See 28 U.S.C. § 1367. However, the plaintiff has s ta te d no federal claim against defendant Grbich. Therefore, the court declines to e xe rc is e supplemental jurisdiction over this claim under § 1367. B. F o u r th Amendment Claims

F irs t, the plaintiff submits that Officer Lewandowski acted maliciously and s a d is tic a lly when he used the tazer, which constituted an excessive use of force. An a rr e s te e 's claim for excessive force is analyzed under the Fourth Amendment's o b je c tive reasonableness standard. Graham v. Connor, 490 U.S. 386, 388 (1989). "[T ]h e question is whether the officers' actions are `objectively reasonable' in light of th e facts and circumstances confronting them, without regard to their underlying in ten t or motivation." Id. at 397. The amount of permissible force depends on the s p e c ific situation, including "the severity of the crime at issue, whether the suspect p o s e s an immediate threat to the safety of the officers or others, and whether he is a c tive ly resisting arrest or attempting to evade arrest by flight." Id. at 396. In determining whether an officer's use of force is reasonable, courts must b a la n c e the nature and quality of the intrusion upon the individual's Fourth A m e n d m e n t rights against the countervailing government interests at stake. J o h n s o n v. LaRabida Children's Hosp., 372 F.3d 894, 898 (7th Cir. 2004). R e a s o n a b le n e s s is judged from the perspective of whether the officer's actions were

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o b je c tive ly reasonable in light of the facts and circumstances confronting the officer a t the time. Id. W h e n assessing whether the amount of police force was

re a s o n a b le , the court looks to circumstances indicating: (1) the severity of the s u s p e c te d crime; (2) whether the suspect posed an immediate threat to the officer o n the scene or others; and (3) whether the suspect was actively resisting or a tt e m p tin g to evade arrest. Id. At this time, the court will allow the plaintiff to p ro c e e d on a Fourth Amendment claim that Officer Lewandowski's use of the tazer w a s an excessive use of force. S e c o n d and third, the plaintiff presents a cruel and unusual punishment claim a n d a medical care claim, both under the Eighth Amendment. However, both claims a re properly considered under the Fourth Amendment. The Seventh Circuit

"re c o g n iz e d in Lopez v. City of Chicago that the Fourteenth Amendment's due p ro c e s s protections only apply to a pretrial detainee's confinement conditions after h e has received a judicial determination of probable cause." Williams v. Rodriguez, 5 0 9 F.3d 392, 403 (7th Cir. 2007) (citing Lopez v. City of Chicago, 464 F.3d 711, 719 (7 th Cir. 2006)). Claims regarding conditions of confinement for arrestees such as the plaintiff, who have not yet had a judicial determination of probable cause, are in s te a d governed by the Fourth Amendment and its "objectively unreasonable" s ta n d a rd . Id. In Sides v. City of Champaign, 496 F.3d 820 (7th Cir. 2007), the Seventh C irc u it clarified what is "objectively unreasonable" in the context of a medical needs

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c a s e . There are four factors that influence the analysis of a plaintiff's claims of in a d e q u a te medical care under the Fourth Amendment: (1) whether the officer had n o tic e of the arrestee's medical need, either through words or observation; (2) the s e rio u s n e s s of the medical need, including whether complaints are accompanied by a n y physical symptoms; (3) the scope of the requested treatment, which is to be b a la n c e d against the second factor; and (4) police interests. Williams, 509 F.3d at 4 0 3 (citing Sides, 496 F.3d at 828). A c c o rd in g to the plaintiff, defendants Lewandowski, Gierack and Nelson ig n o re d his repeated pleas to roll down the window of the squad car while the plaintiff w a s having a hard time breathing in the back of the squad car with the windows ro lle d up. (Am. Compl. at 6-7). The plaintiff did not complain of a medical problem o r ask for medical attention; he merely asked the defendants to roll down the window o f the squad car. Accordingly, the plaintiff will be allowed to proceed on a Fourth A m e n d m e n t claim against defendants Lewandowski, Gierack and Nelson for their tre a tm e n t of him while he was in the squad car, but it will be a general claim under th e Fourth Amendment rather than a medical care claim. T h e plaintiff further avers that he began suffering from chest pains during b o o k in g at the W a u w a to s a police station. He repeatedly requested medical

a tte n tio n , but his requests "were met with insults." (Am. Compl. at 7). The plaintiff d o e s not identify any defendant who denied his requests for medical attention and in s u lte d him instead. However, the plaintiff did inform defendants Torrez and

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D a vid s o n "of the serious medical needs and hunger" during an interview that began a t 11:05 a.m. (Am. Compl. at 8). He was offered a cup of water and promised that h e would be fed after the interview. Id. At 2:50 p.m., defendant Lisa Hudson, a d e te c tive technician, made contact with the plaintiff to obtain a buccal swab. Id. She to ld the plaintiff that he would be given something to eat and receive medical a tte n tio n if he consented and submitted a swab. Id. The plaintiff also avers that d e fe n d a n ts Scott, Tebo, Davidson, Deisinger, Torrez, and Hudson either directly p a rtic ip a te d in the wrong or knew about it and failed to stop it. (Am. Compl. at 10). T h e court will allow the plaintiff to proceed on a Fourth Amendment claim against th e s e defendants regarding his treatment while at the police station. C. Policy Claims

T h e plaintiff also submits a proposed claim against the "Wauwatosa Police D e p a rtm e n t for failure to oversee the people who caused the wrong such as by h irin g unqualified people or failing to adequately train the staff or created a policy or c u s to m that allowed the wrong to occur." (Am. Compl. at 10). As an initial matter, a police department is not a suable entity under § 1983. B e s t v. City of Portland, 554 F.3d 698 (7th Cir. 2009) (citing Chan v. Wodnicki, 123 F .3 d 1005, 1007 (7th Cir. 1997); West v. Waymire, 114 F.3d 646, 646-47 (7th Cir. 1 9 9 7 )). However, in Best, the Seventh Circuit "adjusted the caption accordingly" to n a m e the City of Portland rather than the Portland Police Department. Best, 554

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F .3 d at 698. This court will do the same and will substitute the City of W a u w a to s a fo r the W a u w a to s a Police Department. A lth o u g h a municipality cannot be held liable under § 1983 solely on the g ro u n d s of respondeat superior, the government as an entity is responsible "when e xe c u tio n of a government's policy or custom, whether made by its lawmakers or by th o s e whose edicts may fairly be said to represent official policy, inflicts the injury." M o n e ll v. City of New York Department of Social Services, 436 U.S. 658, 691 (1978). T o hold the defendant municipality liable under Section 1983, the plaintiff must d e m o n s tra te the constitutional deprivation was caused by "a policy statement, o rd in a n c e , regulation, or decision officially adopted and promulgated by officers." Id . at 690. There must be a direct causal link between the alleged unconstitutional d e p riva tio n and the municipal policy or custom at issue. City of Canton v. Harris, 4 8 9 U.S. 378, 385 (1989). To the extent that the plaintiff sought to hold the municipality responsible for its failure to oversee the people who caused the wrong, the claim will be dismissed. T h e plaintiff will be allowed to proceed on a policy claim against the City of W a u w a to s a for failing to adequately train police officers. There are limited

c irc u m s ta n c e s when "failure to train" may be a basis for municipal liability under § 1983. City of Canton, 389 U.S. at 388. Inadequacy of police training may only s e rve as a basis for municipal liability where the failure to train amounts to deliberate in d iffe re n c e to rights of persons with whom the police come in contact. Id.

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T h e plaintiff will also be allowed to proceed on a policy claim against the City o f W a u w a to s a for creating a policy or custom regarding the use of a tazer or the h a n d lin g of arrestees that caused the wrong to the plaintiff. D. U n la w fu l Seizure of Property

T h e plaintiff contends that several items of personal property were never re tu rn e d to him by the W a u w a to s a Police Department, including two Nokia cell p h o n e s , one headset, a Motorola cell phone, and $5.16 in change. As discussed a b o ve , the W a u w a to s a Police Department is not a suable entity under § 1983. Best, 5 5 4 F.3d at 698. However, the court has substituted the City of W a u w a to s a for the W a u w a to s a Police Department. The Due Process Clause of the Fourteenth Amendment "provides that certain s u b s ta n tiv e rights ­ life, liberty, and property ­ cannot be deprived except pursuant to constitutionally adequate procedures." Germano v. Winnebago County, 403 F.3d 9 2 6 , 928 (7th Cir. 2005) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 5 4 1 (1985)). Thus, when property is taken by government action, due process g e n e r a lly requires that the government provide an "opportunity to present reasons, e i th e r in person or in writing, why proposed action should not be taken . . . ." G e rm a n o , 403 F.3d at 928 (quoting Cleveland, 470 U.S. at 546). An individual is entitled to an opportunity for a hearing before the state p e rm a n e n tly deprives him of his property. Parratt v. Taylor, 451 U.S. 527, 540 (1 9 8 1 ), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327

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(1 9 8 6 ).

However, where a deprivation of a constitutionally protected property

in te re s t is caused by a state employee's random, unauthorized conduct, it does not g ive rise to a § 1983 procedural due process claim unless the state fails to provide a n adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). W is c o n s in law provides tort remedies to individuals whose property has been c o n ve rte d or damaged by another. See W is. Stat. §§ 893.34 and 893.51. If a d e p riva tio n of property did not occur as the result of some established state p ro c e d u re (which the plaintiff does not allege) and state law provides an adequate p o s t-d e p riva tio n remedy for redressing the missing property, due process has been s a tis fie d . Parratt, 451 U.S. at 543-44; see also Hamlin v. Vaudenberg, 95 F.3d 580, 5 8 5 (7th Cir. 1996) (holding that W is c o n s in 's post-deprivation procedures are a d e q u a te , albeit in a different context). Thus, the plaintiff's claim for deprivation of p ro p e rty will be dismissed. E. D e fa m a tio n of Character Claim

F in a lly , the plaintiff asserts a proposed defamation of character claim against a ll named police officers for harassing him and taunting him in regards to his urines o ile d pants. (Am. Compl. at 9). Under W is c o n s in law, defamation claims require th a t "the particular words complained of shall be set forth in the complaint." W is . S ta t. § 802.03. The plaintiff has not set forth the particular words that he asserts in d ivid u a l officers used to taunt him. Therefore, the court will not allow the plaintiff to proceed on an independent defamation claim against the named police officers.

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H o w e v e r, any taunting of the plaintiff regarding his urine-soiled pants will be part of th e factual basis for the plaintiff's Fourth Amendment claim regarding whether o ffic e rs were objectively reasonable in their handling of the plaintiff after his arrest. C O N C L U S IO N In summary, the court finds that the plaintiff has alleged sufficient facts to s u p p o r t the following claims: (1) a Fourth Amendment excessive force claim against d e fe n d a n t Lewandowski for the use of the tazer; (2) a Fourth Amendment claim a g a in s t defendants Lewandowski, Gierack and Nelson regarding their actions to w a rd s the plaintiff while he was in the squad car; (3) a Fourth Amendment claim a g a in s t defendants Scott, Tebo, Davidson, Deisinger, Torrez, and Hudson regarding th e ir treatment of the plaintiff at the police station; and (4) police claims against the C ity of W a u w a to s a for failure to adequately train police officers and for creating p o lic ie s or customs regarding the use of the tazer and/or the treatment of arrestees th a t caused the wrong to the plaintiff. A c c o r d in g ly , IT IS ORDERED that the plaintiff's motion to amend complaint (Docket #11) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall docket the plaintiff's N o ve m b e r 17, 2008 motion to amend complaint as the Amended Complaint in this c a se .

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IT IS FURTHER ORDERED that the following parties will be DISMISSED as d e fen d a n t s in this action: John Castor, George M. Grbich, Jr., and Officer Roger W. M o r te n s . IT IS FURTHER ORDERED that the following parties shall be added as d e fe n d a n ts in this action: Officer Joseph Lewandowski, Officer Katie Gierack, Officer N e ls o n , Officer Randolph G. Scott, Officer Mark S. Tebo, Officer Dennis M. D a v id s o n , Det. Tech. Lisa Hudson, Det. Michael A. Deisinger, Det. Ralph R. Torrez, a n d the W a u w a to s a Police Department. IT IS FURTHER ORDERED that the City of W a u w a to s a shall be substituted fo r the W a u w a to s a Police Department as a defendant in this action. IT IS FURTHER ORDERED that the United States Marshal shall serve a copy o f the complaint, the summons, and this order upon the following defendants p u rs u a n t to Federal Rule of Civil Procedure 4: Officer Joseph Lewandowski, Officer K a tie Gierack, Officer Nelson, Officer Randolph G. Scott, Officer Mark S. Tebo, O ffic e r Dennis M. Davidson, Detective Technician Lisa Hudson, Detective Michael A . Deisinger, Detective Ralph R. Torrez, and the City of W a u w a to s a . The plaintiff is advised that Congress requires the U.S. Marshals Service to charge for making o r attempting such service. 28 U.S.C. § 1921(a). The current fee for waiver-ofs e rvic e packages is $8.00 per item mailed. The full fee schedule is provided at 28 C .F .R . §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service b y the U.S. Marshals Service precisely because in forma pauperis plaintiffs are

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in d ig e n t, it has not made any provision for these fees to be waived either by the court o r by the U.S. Marshals Service. IT IS FURTHER ORDERED that the remaining defendants shall file a re s p o n s ive pleading to the complaint. IT IS FURTHER ORDERED that the Secretary of the W is c o n s in Department o f Corrections or his designee shall collect from the plaintiff's prison trust account the $ 3 5 0 .0 0 balance of the filing fee by collecting monthly payments from the plaintiff's p ris o n trust account in an amount equal to 20% of the preceding month's income c re d ite d to the prisoner's trust account and forwarding payments to the clerk of the c o u rt each time the amount in the account exceeds $10 in accordance with 28 U .S .C . § 1915(b)(2). The payments shall be clearly identified by the case name and n u m b e r assigned to this action. IT IS FURTHER ORDERED that copies of this order be sent to the warden of th e institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. P la in tiff is hereby notified that he is required to send a copy of every paper or d o c u m e n t filed with the court to the opposing parties or their attorney(s). Fed. R. C iv. P. 5(a). Plaintiff should also retain a personal copy of each document. If p la in tiff does not have access to a photocopy machine, plaintiff may send out id e n tic a l handwritten or typed copies of any documents. The court may disregard

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a n y papers or documents which do not indicate that a copy has been sent to each d e fen d a n t or to their attorney(s). P la in tiff is further advised that failure to make a timely submission may result in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk's Office of any change of address. F a ilu re to do so could result in orders or other information not being timely delivered, th u s affecting the legal rights of the parties. D a te d at Milwaukee, W is c o n s in , this 9th day of September, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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