Barnes v. Brown County et al

Filing 18

ORDER signed by Judge Rudolph T. Randa on 11/18/2013. 2 MOTION for Leave to Proceed in forma pauperis GRANTED. 10 MOTION to reverse Court's Order to seal GRANTED; Court's Order sealing portions of complaint, amended complaint and exhibi ts 9 VACATED, filings to be unsealed and made part of public record. 16 MOTION to Amend/Correct Complaint GRANTED; plaintiff to file second amended pleading by 12/13/2013. Wisconsin Dept. of Corrections to collect $284.31 balance of filing fee from plaintiff's prison trust account, (cc: via US mail to Warden and Lamon Barnes at Waupun Correctional Institution, Corey Finkelmeyer at Wis. Dept. of Justice)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LAMON LAMAR BARNES,
Plaintiff,
-vs-

Case No.

13-CV-607

BROWN COUNTY,
BROWN COUNTY DRUG TASK FORCE,
DAVE POTEAT, JEFF LADE,
ZAK HOSCHBACH, MARK HACKETT,
JOHN LAUX, GUY SHEPARDSON,
DETECTIVE DERNBACH,
JOHN AND JANE DOES 1-5,
SEALED DEFENDANT # 1, and
SEALED DEFENDANT #2,
Defendants.

SCREENING ORDER

The plaintiff, who is incarcerated at Waupun Correctional Institution, filed a
pro se complaint and amended complaint under 42 U.S.C. § 1983. This matter comes before
the court on the plaintiff’s petition to proceed in forma pauperis. He has been assessed and
paid an initial partial filing fee of $65.69. See 28 U.S.C. § 1915(b)(1). Before screening the
amended complaint, the Court will address the plaintiff’s motion to reverse the Court’s order
to seal certain documents.
Plaintiff’s Motion to Reverse Court’s Order Sealing Complaints and Exhibits
On June 18, 2013, the Court sealed portions of the complaint, amended

complaint, and exhibits based on the confidential informant’s privilege. Redacted versions
of the pleadings and exhibits were filed in the public record. The plaintiff contends that the
privilege does not apply in this case because the information contained in the sealed
documents is an open record under Wisconsin law. He avers that such information was
publicly released and willingly revealed during the plaintiff’s criminal trial. (Barnes Decl.
¶ 3.)

In further support of his motion, the plaintiff asserts that the investigation is

completed. The defendants did not file a response to the plaintiff’s motion. Under the
circumstance, the motion will be granted. See Roviaro v. United States, 353 U.S. 53, 60
(1957). Thus, the Court’s order sealing portions of the documents will be vacated.
Screening Order Standard of Review
The court is required to screen complaints brought by prisoners seeking relief
against 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 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. 28 U.S.C. § 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal

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theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir.
2003) (citations omitted).
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 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).
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more

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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, second, “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. 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)).
Amended Complaint Allegations
The plaintiff is a Wisconsin state prisoner. The defendants are: Brown County;
Brown County Drug Task Force (DTF); Dave Poteat, Brown County Sheriff’s Department
(BCSD) lieutenant and director of the DTF; Jeff Lade, Village of Ashwaubenon public safety
officer and DTF member; Zak Hoschbach, BCSD deputy and DTF member; Mark Hackett,
BCSD deputy and DTF member; John Laux, Green Bay Police Department lieutenant and
former DTF supervisor; Guy Shepardson, BCSD deputy and DTF member; JuJuan
Jones/Sealed Defendant # 1, DTF confidential informant; Detective Dernbach, BCSD deputy

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and DTF member; Anthony Washington/Sealed Defendant # 2, private citizen on probation
who was the target of DTF investigation; and John and Jane Does 1-5, who are in charge of
ensuring that state and federal law is observed, enforced, and administered within their
respective counties.
The amended complaint’s “Preliminary Statement” summarizes the plaintiff’s
claims:
The plaintiff alleges that Brown County DTF
involvement in drug investigations through its employees and
undercover operatives (hereinafter CI/Agents) have become so
outrages [sic] that the notion of simple justice has been
offended. Brown County adopted a custom, policy and/or
practice of not strip-searching CI’s/Agents before or after
controlled buys of drugs. The plaintiff alleges that the no strip
policy is unconstitutional when utilized in circumstances where
indications are present that the CI/Agent is compromised and
entered the controlled buy with contraband in order to
manufacture evidence against suspects. The plaintiff contends
that the ‘no strip search custom, policy and/or practice’ is used
as a shield to circumvent corroboration of evidence obtained by
CI’s/Agents and thus deny suspects such as the plaintiff
substantive and procedural due process during drug
investigations. The plaintiff asserts that the no strip search
custom, policy, and/or practice is the moving force behind his
constitutional rights being violated. The plaintiff further
contends that such a holding in itself provided the DTF
incentive to adopt a ‘see no evil turn a blind eye,’ approach to
the use of CI’s/Agents.
Such an approach effectively
legitimized a no man’s land of investigative tactics to be used by
the DTF in order to obtain results, which constituted a failure to
train and again denied the plaintiff and suspects like him
substantive and procedural due process protections.
Last, the plaintiff contends that the DTF as a law
enforcement agency in the state of Wisconsin failed to prepare
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in writing and make available for public scrutiny a specific
procedure for processing and resolving complaints by any
person regarding the misconduct of DTF investigators in
violation of suspects such as the plaintiff’s substantive and
procedural due process rights.
(Am. Compl. at 3-4.) The plaintiff was arrested on January 11, 2011, and subsequently
charged in Brown County Criminal Case Number 2011-CF-43. He alleges that the DTF used
numerous illegal tactics in the investigation leading to his arrest, as follows:
A. CI’s/Agents were not strip searched when indications
presented themselves that the CI/Agent could be a possible
source of the irregularity of the evidence obtained and entered
the controlled buy with contraband in order to manufacture
evidence against suspects.
B. CI’s/Agents were not being properly searched before or after
controlled buys allowing drugs to be removed from controlled
transactions.
C. DTF investigators were using influence over probation agents
to disregard non-discretionary duties to arrested suspects in the
custody/supervision of the WDOC-DOCC when suspects in the
custody/supervision of the department engaged [in] criminal
acts, allowing continued criminal activity in order to obtain
results.
D. DTF investigators were acting in concert with CI’s/Agents to
obtain results by any means necessary including illegal means
beyond the scope of their duties by placing false, prejudicial,
grossly inaccurate/erroneous information into suspects’
investigatory files to be submitted to the District Attorney’s
Office.
(Am. Compl. at 16.)
The plaintiff claims that the defendants’ actions violated his substantive and

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procedural due process rights under the Fourteenth Amendment to the United States
Constitution. He also claims that the defendants acted with deliberate indifference in
violation of the Eighth Amendment. Further, the plaintiff claims that the defendants violated
Article 1, Sections 1, 3, 4, 5, and 9 of the Wisconsin Constitution and Wis. Stat. §§ 66.0511,
939.70, 946.12, 946.46, and 969.03. He seeks declaratory relief, compensatory damages, and
punitive damages.
Here, it appears that most, if not all, of the plaintiff’s claims would necessarily
imply the invalidity of his sentence and, as such, the action may barred by the “favorable
termination requirement” rule of Heck v. Humphrey, 512 U.S. 477 (1994). Under the rule,
a § 1983 suit for damages that would necessarily imply the
invalidity of the fact of an inmate’s conviction, or necessarily
imply the invalidity of the length of an inmate’s sentence, is not
cognizable under § 1983 unless and until the inmate obtains
favorable termination of a state, or federal habeas, challenge to
his conviction or sentence.
Nelson v. Campbell, 541 U.S. 637, 646 (2004) (quoting Heck, 512 U.S. at 487).1 However,
at this early stage, it is not entirely clear that the plaintiff’s claims are Heck-barred.
Moreover, the plaintiff has filed a motion to amend the complaint, which the Court turns to

1

Federal habeas relief under 28 U.S.C. § 2254 may be unavailable. The plaintiff bases his claims on
“outrageous government conduct.” The “outrageous governmental conduct” defense has its origins in United States
v. Russell, in which the United States Supreme Court stated that “we may some day be presented with a situation in
which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a conviction.” 411 U.S. 423, 431-32 (1973). This statement
was dicta, however, and in a subsequent Supreme Court decision, Hampton v. United States, 425 U.S. 484, 488-91
(1976), a three-Justice plurality stated that outrageous governmental conduct did not constitute a defense separate
from entrapment. The Seventh Circuit has rejected the defense, and so the law in this circuit is that there is no
federal due-process right to have a conviction set aside on the ground that it was procured through outrageous police
conduct. See, e.g., United States v. Stallworth, 656 F.3d 721, 730 (7th Cir. 2011); United States v. Boyd, 55 F.3d
239, 241 (7th Cir. 1995).

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now.
Motion to Amend the Complaint
The plaintiff has filed a motion to file a second amended complaint to make
specific allegations against the John Doe defendants. He also seeks to support the amended
complaint allegations with additional documentary and digital evidence. According to the
plaintiff, the second amended complaint will correct deficiencies in his claims from the
original and first amended complaint.
Leave to amend a pleading should be freely given “when justice so requires.”
See Fed. R. Civ. P. 15(a)(2). The decision on whether to allow the amendment is within the
discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons for
denying a motion to amend include “undue delay, bad faith, dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, or futility of the
amendment.” Id. at 182.
As indicated, this case is at an early stage. Granting the plaintiff’s motion will
not prejudice the defendants or unduly delay the case. Thus, the Court will grant the plaintiff
additional time to file a second amended complaint. The plaintiff is advised that he must
comply with the following directives in filing the amended pleading.
As an initial matter, the plaintiff should only bring claims that are not barred
by Heck. The plaintiff must prevail on a federal habeas action under 28 U.S.C. § 2254 before

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he may pursue such claims under 42 U.S.C. § 1983. Next, the plaintiff must use the enclosed
civil complaint form to file his second amended complaint. He should follow the directions
set forth in the form complaint. The plaintiff should limit his second amended complaint to
the space provided in the form but if he must exceed the space proivded, he may only exceed
it by five single-sided pages. In addition to the form complaint, the plaintiff will be mailed
a pro se guide: Answers to Prisoner Litigants’ Common Questions.
The plaintiff should file his second amended complaint curing the deficiencies
in the amended complaint as described herein. Such second amended complaint must be
filed on or before December 13, 2013. Failure to timely file a second amended complaint
may result in dismissal of this action.
The plaintiff is advised that the second amended complaint must bear the
docket number assigned to this case and must be labeled “Second Amended Complaint.”
The second amended complaint supersedes the prior amended 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). If a second
amended complaint is received, it will be screened pursuant to 28 U.S.C. § 1915A.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket #2) be and hereby is granted.
IT IS FURTHER ORDERED that the plaintiff’s motion to reverse court’s
order to seal (Docket #10) be and hereby is granted.

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IT IS FURTHER ORDERED that the court’s order of June 18, 2013, sealing
portions of the complaint, amended complaint, and exhibits is vacated. The filings shall be
unsealed and made a part of the public record.
IT IS FURTHER ORDERED that the plaintiff’s motion to file a second
amended complaint (Docket #16) is granted.
IT IS FURTHER ORDERED that on or before December 13, 2013, the
plaintiff shall file an second amended pleading curing the defects in the amended complaint
as described herein.
IT IS FURTHER ORDERED that the Clerk’s Office mail the plaintiff a
prisoner civil complaint form and a pro se guide: Answers to Prisoner Litigants’ Common
Questions.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff’s prisoner trust account the
$284.31 balance of the filing fee by collecting monthly payments from the plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income credited to the
prisoner’s trust account and forwarding payments to the Clerk of Court 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 number assigned to this action.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney

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General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 537077857.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program,
the plaintiff shall submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the Court. The Prisoner E-Filing Program is in effect at Green Bay
Correctional Institution and Waupun Correctional Institution and, therefore, if the plaintiff
is no longer incarcerated at either institution, he will be required to submit all correspondence
and legal material to:
Honorable Rudolph T. Randa
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Dated at Milwaukee, Wisconsin, this 18th day of November, 2013.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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