Barnes v. Brown County et al

Filing 35

ORDER signed by Judge Rudolph T. Randa on 4/25/2014. 19 MOTION for Leave to File an Amended Complaint DENIED as moot; 23 MOTION for Temporary Restraining Order/Preliminary Injunction DENIED; 26 MOTION to Appoint Counsel DENIED; 29 MOTION to C ertify Class DENIED; 34 MOTION to Amend/Correct Complaint GRANTED. Clerk of Court DIRECTED to file Proposed Amended Complaint [34-1] as operative complaint in this action. US Marshal to serve copy of amended Complaint and this Order upon defendants pursuant to FRCP 4. Defendants to file responsive pleading to amended Complaint. (cc: all counsel, via US mail to Lamon Barnes at Waupun Correctional Institution)(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,
INVESTIGATOR DERNBACH,
JOHN AND JANE DOES 1-5,
VILLAGE OF ASHWAUBENON,
CITY OF GREEN BAY, and JUJUAN JONES,
Defendants.

SCREENING ORDER

This matter is before the Court to screen the amended complaint. The plaintiff
filed a motion to amend the complaint along with a proposed amended complaint on
December 6, 2013. He also filed a motion to amend the complaint along with a proposed
amended complaint on March 5, 2014. The Court will screen the later filed amended
complaint and deny as moot the earlier motion.
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
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,

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“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
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)).

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Complaint Allegations
The plaintiff alleges that on January 11, 2011, he was arrested by the Brown
County Drug Task Force (DTF) and charged with six counts of delivering cocaine as part of
an ongoing investigation. He was convicted of the charges following a jury trial. The
plaintiff challenges multiple aspects of the criminal investigation. He alleges:
Brown County, DTF and participating municipalities Green Bay
City and Ashwaubenon Village through their law enforcement
officials acting in their DTF capacity utilized an unconstitutional
custom, policy and/or practice to withhold exculpatory evidence
contained in unofficial files from persons convicted in Brown
County Circuit Court (hereinafter BCCC) of drug trafficking
crimes that involved a confidential informant (hereinafter CI).
The withholding of exculpatory evidence has harmed me and
those similarly situated like me by depriving us of our rights
under the Fifth and Fourteenth Amendments and our right to a
fair trial under the sixth and Fourteenth Amendments to the U.S.
Constitution. This and the following causes of action focuses
solely on ‘past harm’ and there is no claim that the above or
below defendants alleged customs, policies, practices and/or
actions continue to impose harm upon me and those similarly
situated.
The second cause of action is focused on DTF officials
fabrication of evidence that was not essential to my conviction,
but done in effort to establish probable cause and also separately
obtain a conviction which deprived me of my due process rights
under the Fourteenth Amendment to the United States
Constitution.
The third cause of action is that Brown County, DTF, and
participating municipalities through their law enforcement
officials acting in their DTF capacity utilized an unconstitutional
custom, policy and/or practice for receiving and resolving
complaints made by citizens about the misconduct of DTF
investigators which did not allow citizens to take good faith
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participation in any complaint procedure which deprived me of
my due process rights under the Fourteenth Amendment to the
U.S. Constitution.
The fourth cause of action is that Brown County, DTF,
and participating municipalities through their law enforcement
officials acting in their DTF capacity utilized an unconstitutional
custom, policy and/or practice not to strip search CI’s which
denied DTF suspects of corroboration specifically in situations
when indications were present a CI is unreliable/compromised
and entered or exited a controlled transaction with manufactured
evidence.
(Compl. at 9-10.) The plaintiff claims that the defendants’ actions deprived him of due
process under the United States Constitution, amounted to negligence under Wisconsin state
law, and violated Wis. Stat. § 66.0511. He seeks declaratory relief, injunctive relief, and
monetary damages.
Here, it appears that most of the plaintiff’s claims would necessarily imply the
invalidity of his sentence and, as such, the claims would be 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). However,
at this stage, it is not entirely clear that the plaintiff’s claims are Heck-barred. Thus, he may
proceed on his due process claims. In addition, the Court will exercise supplemental

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jurisdiction over the plaintiff’s state law claims. See 28 U.S.C. § 1367(a).
Additional Matters
The plaintiff has filed a motion for a temporary restraining order and
preliminary injunction to preserve the existing “unofficial files (all files, documents, and
digital evidence collected for DTF investigation 10-269)” so that he may proceed with postconviction remedies as well as attempt under § 1983 to obtain relief. To obtain preliminary
injunctive relief, whether through a TRO or preliminary injunction, the plaintiff must show
that (1) his underlying case has some likelihood of success on the merits, (2) no adequate
remedy at law exists, and (3) he will suffer irreparable harm without the injunction. Wood
v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If those three factors are shown, the Court must
then balance the harm to each party and to the public interest from granting or denying the
injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196
F.3d 809, 813 (7th Cir. 1999).
Here, the plaintiff asserts that he needs the unofficial files to successfully
litigate this case as well as to proceed with post-conviction remedies in his criminal case.
However, there is no indication as to the potential for destruction of these files. In addition,
it is not clear whether his criminal trial counsel sought to obtain the files. Finally, the
plaintiff has not demonstrated a reasonable likelihood of success on the merits at this stage
of the proceedings. For these reasons, the motion will be denied.
The plaintiff has filed a motion to appoint counsel. He asserts that the Court

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should appoint counsel because the case is complex and because he seeks to bring a class
action and cannot do so without counsel.
The court has discretion to recruit counsel to represent a litigant who is unable
to afford one in a civil case. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C.
§ 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
As a threshold matter, litigants must make a reasonable attempt to secure private counsel on
their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). If the plaintiff makes a
reasonable attempt to secure counsel, the court must examine “whether the difficulty of the
case – factually and legally – exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This
inquiry focuses not only the plaintiff’s ability to try his case, but also includes other “tasks
that normally attend litigation” such as “evidence gathering” and “preparing and responding
to motions.” Id.
In this case, the plaintiff has provided evidence that he has attempted to obtain
legal counsel on his own. However, the issues in this case appear at this stage to be
straightforward because, as set forth herein, the Court will not certify a class action.

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addition, some or all of the plaintiff’s claims may be Heck-barred. Moreover, the plaintiff’s
filings indicate that he is capable of litigating this case himself. Therefore, at this time, the
Court does not believe that the presence of counsel is likely to make a difference in the
outcome of this case. Accordingly, the plaintiff’s request for appointment of counsel will be

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denied.
The plaintiff has filed a motion for class action certification. He asserts that
his fabrication of evidence claim is not presented for consideration for class action but
requests certification based on the following three claims:
(1) The plaintiff alleges that the defendants’ police record
keeping and disclosure custom, policy and/or practice deprived
him and those similarly situated (persons convicted of felonies
after trial or plea of guilty in Brown County and sentenced to
probation or imprisonment in the custody of the Wisconsin
Department of Corrections that were investigated by the Drug
Task Force and a confidential informant was utilized to obtain
evidence, specifically drugs) of their due process rights under
the Fifth and Fourteenth Amendments and their right to a fair
trial under the Sixth and Fourteenth Amendments to the United
States Constitution.
(2) The plaintiff alleges that the defendants did not provide a
specific custom, policy and/or practice for processing and
resolving complaints by any person regarding the misconduct of
DTF and/or Law Enforcement officials in their DTF capacity.
This deprived him and those similarly situated (persons who had
the desire to pursue through good faith participation in any
complaint procedure relief and have their complaint
aggressively, honestly and properly investigated) of due process
rights under the Fourteenth Amendment to the United States
Constitution.
(3) The plaintiff alleges that the defendants’ policy not to strip
search confidential informants denied him and those similarly
situated (persons convicted of felonies after trial or guilty plea
in Brown County and sentenced to probation or imprisonment
in the custody of the Wisconsin Department of Corrections that
were investigated by the DTF and a confidential informant was
utilized to obtain evidence and further indications were present
the confidential informant was unreliable/comprised and entered
or exited a controlled transaction with contraband to
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manufacture evidence to be used against a DTF suspect) due
process rights under the Fourteenth Amendment to the United
States.
(Pl.’s Mot. for Class Action Cert. at 2-3.)
A plaintiff can sue as a representative of or on behalf of parties only if: (1) the
class is so numerous that joinder of all members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or defenses of the representative are typical
of the claims or defenses of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The plaintiff asserts that
the classes are so numerous that joinder of all class members is impracticable. According
to the plaintiff, the number of persons affected by the defendants’ policies “far exceeds 40"
in each category. However, he neglects to provide any specific information about the
potential number and identities of possible class members. The party supporting the class
cannot rely on “mere speculation” or “conclusory allegations” as to the size of the putative
class to prove that joinder is impractical for numerosity purposes. Arreola v. Godinez, 546
F.3d 788, 797 (7th Cir. 2008) (citing Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th
Cir. 1990)). Thus, the plaintiff has not satisfied the numerosity requirement.
In addition, it is well settled that, as a pro se litigant, the plaintiff is not
qualified to act as a representative and therefore he cannot meet the fourth prong. See
Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding that it was plain error
to permit an inmate proceeding pro se to represent fellow inmates in a class action). As a

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non-lawyer, the plaintiff may not represent anyone other than himself. See 28 U.S.C. § 1654;
Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (per curiam) (“[I]t is clear
that an individual may appear in the federal courts only pro se or through counsel.”) (citations
omitted).
ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion to amend the
complaint (Docket # 19) is denied as moot.
IT IS FURTHER ORDERED that the plaintiff’s motion for temporary
restraining order/preliminary injunction (Docket # 23) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint counsel
(Docket # 26) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motion for class action
certification (Docket # 29) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motion to amend/correct
complaint (Docket # 34) is granted. The proposed amended complaint is the operative
complaint in this action.
IT IS FURTHER ORDERED that the United States Marshal shall serve a
copy of the amended complaint and this order upon the defendants pursuant to Federal Rule
of Civil Procedure 4. The plaintiff is advised that Congress requires the U.S. Marshals
Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current

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fee for waiver-of-service 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 by the U.S. Marshals Service precisely because in forma pauperis plaintiffs are
indigent, it has not made any provision for these fees to be waived either by the court or by
the U.S. Marshals Service.
IT IS ALSO ORDERED that the defendants shall file a responsive pleading
to the amended complaint.
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
The plaintiff 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 of Court of any change of address. Failure to do so could result in orders or

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other information not being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 25th day of April, 2014.
SO ORDERED,

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

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