Johnson v. Wallich et al

Filing 12

DECISION AND ORDER signed by Judge Lynn Adelman on 10/15/13 REOPENEING this case. Further ordering that plaintiffs motion for leave to proceed in forma pauperis 2 is GRANTED. Further ordering that this action is DISMISSED for failure to state a c laim. Further ordering that the Clerk of Court document that this inmate has brought an action that was dismissed for failure to state a claim and that this inmate has incurred a "strike". Further ordering that the Milwaukee County Sherif f or his designee shall collect from plaintiff's prison trust account the $339.31 balance of the filing fee as set forth herein and that the Clerk of Court enter judgment accordingly. Finally, I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith. (cc: all counsel, financial, via USPS to plaintiff, AAG Corey Finkelmeyer)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES JOHNSON,
Plaintiff,
v.

Case No. 13-CV-00614

DENNIS WALLICH, and
MILWAUKEE POLICE DEPARTMENT,
Defendants.

DECISION AND ORDER
On August 12, 2013, I ordered that this action be reopened if plaintiff paid his initial
partial filing fee of $10.69 on or before Monday, September 9, 2013. Plaintiff paid his initial
partial filing fee before that date so I will reopen the case, grant his motion for leave to
proceed in forma pauperis, and screen his complaint.
I am 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).
I 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, “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).
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.
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Toledo, 446 U.S. 635, 640 (1980). I am 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)).
On September 3, 2011, plaintiff’s car was stolen. He reported the theft to District 7
of the Milwaukee Police Department the same day. On October 31, 2011, defendant
Dennis Wallich, a City of Milwaukee police officer, recovered plaintiff’s car in a traffic stop
and arrested the driver.
Later that evening, someone from the Milwaukee Police Department notified plaintiff
that his vehicle had been recovered and that he could pick it up. They told him that the
keys were at 26th and Wisconsin. Plaintiff immediately went to retrieve his car, but he
could not find it. He looked for hours and called Wallich and the tow lot for days, but no one
knew where his car went after the traffic stop and arrest. On November 3, 2011, plaintiff
filed another stolen vehicle report and continued to call the Milwaukee Police Department
about his car. Then, on February 25, 2012, plaintiff received another call from the
Milwaukee Police Department. His vehicle had been located in Zion, Illinois, but it had been
stripped of all major parts and was in salvage condition.
Plaintiff asserts that the Milwaukee Police Department was responsible for returning
his car after they recovered it and that they failed to do so. As damages, he seeks the
$16,000 value of the car, the value of the work tools he had in the car, and the cost of bus
passes for a year. He also would accept a voucher to pick out a vehicle at a city or state
vehicle auction.
The Due Process Clause of the Fourteenth Amendment “provides that certain
substantive rights—life, liberty, and property—cannot be deprived except pursuant to
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constitutionally adequate procedures.” Germano v. Winnebago County, 403 F.3d 926, 928
(7th Cir. 2005) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).
Thus, when property is taken by government action, due process generally requires that
the government provide an “opportunity to present reasons, either in person or in writing,
why proposed action should not be taken . . . .” Germano, 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 permanently
deprives him of his property. Parratt v. Taylor, 451 U.S. 527, 540 (1981), overruled in part
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). However, a deprivation of
a constitutionally protected property interest caused by a state employee’s random,
unauthorized conduct does not give rise to a § 1983 procedural due process claim unless
the state fails to provide an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S.
517, 533 (1984). In determining whether alleged conduct was “random and unauthorized,”
the court considers whether the conduct was predictable. Hamlin v. Vaudenberg, 95 F.3d
580, 584 (7th Cir. 1996). Predictability is determined both by the amount of discretion
exercised by an official as well as the extent to which that discretion is uncircumscribed.
Id. In Parratt, after a prison inmate did not receive hobby materials he had ordered
because normal procedures for the handling of mail at the prison were not followed, he
claimed that the conduct of the prison officials deprived him of property without due
process of law. 451 U.S. at 530. The Supreme Court explained that although the state had
deprived the inmate of property, “the deprivation did not occur as a result of some
established state procedure. Indeed, the deprivation occurred as a result of the

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unauthorized failure of agents of the State to follow established state procedure.” Id. at
543.
Wisconsin law provides tort remedies to individuals whose property has been
converted or damaged by another. See Wis. Stat. §§ 893.35 and 893.51. If a deprivation
of property did not occur as the result of some established procedure and state law
provides an adequate post-deprivation remedy for redressing the missing property, due
process has been satisfied. Parratt, 451 U.S. at 543–44; see also Hamlin, 95 F.3d at 585
(holding that Wisconsin’s post-deprivation procedures are adequate, albeit in a different
context).
Plaintiff alleges that he was deprived of his property due to defendant Wallich’s
failure to property secure plaintiff’s car after recovering it during a traffic stop and arrest on
October 31, 2011. However, plaintiff does not suggest that Wallich acted or failed to act
pursuant to an established procedure. Rather, any action or inaction by Wallich was
random and unauthorized. Thus, because Wisconsin state law provides an adequate postdeprivation remedy for redressing the missing property, due process has been satisfied
and plaintiff fails to state a claim.
THEREFORE, IT IS ORDERED that this case is REOPENED.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.

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IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
brought an action that was dismissed for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Milwaukee County Sheriff or his designee shall
collect from plaintiff's prison trust account the $339.31 balance of the filing fee by collecting
monthly payments from 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 FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the Milwaukee County
Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department
of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3) unless plaintiff offers bonafide arguments
supporting his appeal.
Dated at Milwaukee, Wisconsin, this 15th day of October, 2013.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
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