Adamski v. McGinnis et al
Filing
20
ORDER signed by Judge J P Stadtmueller on 3/30/15: granting 17 Plaintiff's MOTION for Leave to Proceed in forma pauperis; dismissing this action for failure to state a claim and as frivolous; directing the Clerk of Court to document that Pl aintiff's action was dismissed for failure to state a claim and as frivolous and that Plaintiff has incurred a "strike"; directing the Secretary of the Wisconsin Dept. of Corrections or his designee to collect the balance of the filing fee from the plaintiff's prison trust account and forwarding payment to the Clerk as specified; and, that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his appeal. See Order. (cc: plaintiff, Warden of Wisconsin Secure Program Facility, all counsel)(nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PAUL ALOIS ADAMSKI,
Plaintiff,
v.
Case No. 13-CV-962-JPS
MARK J. MCGINNIS, JOSEPH TROY,
CITY OF APPLETON, SGT. DAN TAUBER,
JOHN DOE POLICE CHIEF,
JOHN DOES POLICE DEPARTMENT
OFFICIALS,
JOHN DOES POLICE DEPARTMENT
SUPERVISORS, and
JOHN DOES POLICE OFFICERS,
ORDER
Defendants.
The plaintiff, who is incarcerated at the Wisconsin Secure Program
Facility, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil
rights were violated. (Docket #1). On September 4, 2014, the Court found that
the plaintiff’s complaint “impede[d] cogent analysis” because of, inter alia, its
“sheer length” and “profound lack of clarity owing to the blunderbuss nature
of [the plaintiff’s] attack.” (Docket #14). Thus, the Court ordered the plaintiff
to file an amended complaint. Id. at 2. He did so on September 19, 2014
(Docket #15), and the Court received his initial partial filing fee on October
14, 2014 (See Docket). This matter comes before the court on the plaintiff's
motion to proceed in forma pauperis. (Docket #17).
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, “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
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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)).
The plaintiff has alleged, as the Court noted in a previous order, that
“the defendants—two Wisconsin state court judges, the City of Appleton (in
the State of Wisconsin), and various employees of the Appleton Police
Department (most unidentified)—‘conspired with the general objective of
employing a sitting Outagamie County judge as an instructor’ for Appleton
Police Department.” (Docket #14 at 1). The plaintiff alleges eleven causes of
action due to the aforementioned allegations: (1) violations of 18 U.S.C.
§ 1962(c) pursuant to the Racketeer Influenced and Corrupt Organizations
(“RICO”) statute; (2) conspiracy to commit RICO predicate acts pursuant to
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18 U.S.C. § 1962(d); (3) denial of equal protection of the law; (4) denial of
procedural due process; (5) denial of substantive due process; (6)
unreasonable search and seizure; (7) failure to intervene; (8) failure to
prevent a violation of constitutional rights and conspiracy to deprive the
plaintiff of his constitutional rights, pursuant to 42 U.S.C. §§ 1985, 1986; (9)
retaliation; (10) the common law tort of breach of bond; and (11) negligent
supervision. (Docket #15 at 13-21).
While the plaintiff has spilled quite a bit of ink in his amended
complaint (and even more so in his original complaint), the Court will not do
so in its screening order. The plaintiff’s amended complaint fails for lack of
RICO standing, alleges claims that are Heck-barred, and fails to properly
plead conspiracy under Twombly. The Court will address each reason that the
plaintiff’s complaint cannot proceed in turn.
To begin, a civil RICO cause of action under § 1964(c) “requires a
plaintiff to plead ‘(1) an injury in its business or property (2) by reason of (3)
the defendants’ violation of section 1962.” DeGuelle v. Camilli, 664 F.3d 192,
198 (7th Cir. 2011); see also Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282
(11th Cir. 2006) (noting that to sustain a civil RICO action requires “(1) a
showing of an injury to business or property, and (2) that such injury was ‘by
reason of’ the substantive RICO violation”). Violations of § 1962 are RICO
predicate acts and the types of violations that qualify under RICO are
outlined in the statute itself. See § 1961(1); LaFlamboy v. Landek, 587 F. Supp.
2d 914, 938 (N.D. Ill. 2008) (“‘Racketeering activity,’ as defined by 18 U.S.C.
§ 1961(1), includes a host of state and federal offenses, or predicate acts.”).
Additionally, RICO standing “represents a jurisdictional requirement
which remains open to review at all stages of the litigation.” Evans v. City of
Chicago, 434 F.3d 916, 924 (7th Cir. 2006). The standing inquiry often revolves
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around whether the plaintiff is alleging direct harm to his or her business or
property, or alleging harm—and thus a cause of action—that belongs to
another. To that end, “[e]ven if a plaintiff establishes a RICO violation
through a pattern of racketeering activity under § 1962(c), a plaintiff may
only recover for damages to one’s ‘business or property’ occurring as a result
of that violation.” DeGuelle, 664 F.3d at 199 (citing Evans, 434 F.3d at 924-25).
Allegations of injuries “by reason of” predicate RICO violations “require[] a
showing of ‘but for’ causation and proximate cause.” Id. (quoting Corley v.
Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1005 (7th Cir. 2004)).
The plaintiff alleges predicate acts by various defendants which
include mail fraud, see 18 U.S.C. § 1341, honest services fraud (a subset of
mail fraud), see 18 U.S.C. § 1346, extortion under color of official right, see 18
U.S.C. § 1951, mail fraud under Wis. Stat. § 943.89, and bribery under Wis.
Stat. § 946.10. (See generally Docket #15). The Court need not delve into the
intricacies of these predicate acts much because, even assuming arguendo that
the plaintiff properly alleged predicate crimes, none of those crimes resulted
in direct injury to the plaintiff. Namely, the alleged failure of the two named
Outagamie Circuit Court Judges to report money received for teaching a
“legal updates” class to the Appleton Police Department caused no harm to
the plaintiff; and, any alleged harm he experienced simply by being a
resident of Wisconsin is surely too remote. Similarly, if the payments to the
aforementioned judges for these classes were “bribes” or were extorted
under color of official right, the plaintiff still fails to show how these
predicate acts injured him personally.
What Adamski does allege injured him—the issuance of a search
warrant that was colored by these alleged RICO predicate acts—was not a
criminal act standing alone and thus could never be the predicate act that
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caused him injury. See Smith v. Hilldebrand, 244 Fed. Appx. 288, 290 (11th Cir.
2007) (“It is well settled that the alleged injury must arise from an unlawful
act specified in 18 U.S.C. § 1961.”); Hernandez v. Cate, 918 F. Supp. 2d 987,
1019 (C.D. Cal. 2013) (“Plaintiff’s complaint includes wholly conclusory
allegations that defendants’ alleged violations of plaintiff’s Eighth and
Fourteenth Amendment rights also violate RICO. The complaint fails to state
a civil RICO claim.”) (citing Silva v. Di Vittorio, 658 F.3d 1090, 1105-06 (9th
Cir. 2011) (internal quotation marks and citations omitted). The absence of
a predicate RICO act causing Adamski injury to his property or business is
fatal to his entire complaint.
Even assuming, however, that the plaintiff had standing to pursue the
RICO action, his claims would nonetheless be barred by Heck. It cannot
seriously be argued that if the Court were to find police and judicial
collusion, corresponding predicate RICO acts, and harm to the plaintiff as a
result of those acts, that such an outcome would not necessarily call
Adamski’s underlying conviction into question. See Heck v. Humphrey, 512
U.S. 477, 487-87 (1994). While the plaintiff attempts, implicitly, to side step
Heck by asserting that he is alleging a Fourth Amendment violation and such
claims are not normally Heck-barred, see, e.g., Dominguez v. Hendley, 545 F.3d
585, 589 (7th Cir. 2008), this argument fails because the plaintiff’s main
allegations are substantive and procedural due process violations (along with
an equal protection cause of action). And due process claims can be Heck
barred even if “a claim seek[s] damages only ‘for using the wrong procedure,
not for reaching the wrong result.’” Edwards v. Balisok, 520 U.S. 641, 646
(1997) (quoting Gotcher v. Wood, 66 F.3d 1097, 1099 (9th Cir. 1995)). That
would be especially true here because, while the plaintiff alleges only that
Judge McGinnis’s instruction of Appleton Police Department officers colored
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his issuance of a search warrant to search Adamski’s house, Adamski
conveniently ignores that this conflict would be equally applicable to
Adamski’s trial, which was conducted by Judge McGinnis. Most assuredly,
if Adamski’s RICO allegations were substantiated (but, to be clear, they are
highly specious), the convictions, search warrants, and other judicial
proceedings before both judges would all need to be revisited.1
Moreover, there is also case law establishing that civil RICO cases are
Heck-barred by their very nature. See Gibbs v. United States, 865 F. Supp. 2d
1127, 1156 (M.D. Fla. 2012) (“…a number of courts have held that the rule
established by the Supreme Court in Heck applies to civil RICO claims”)
(collecting cases); Hermansen v. Chandler, 211 F.3d 1269 (Table), 2000 WL
554058, at *2 (6th Cir. 2000) (unpublished) (“This court has consistently
applied the [Heck] princip[le] to civil actions under RICO…”) (citing other
Sixth Circuit cases); but see Hunter v. Gates, No. 99-CV-12811, 2001 WL 837697,
at *3-4 (C.D. Cal. Apr. 16, 2001).
In the end, what Heck teaches is that collateral attacks on aspects of a
criminal case that would imply the unlawfulness of the conviction itself,
cannot proceed “unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” Heck, 512 U.S. at 487. The Court finds
that the plaintiff’s RICO claims would imply the invalidity of his conviction
given Judge McGinnis was the trial judge and, at bottom, Adamski is alleging
much more than a simple Fourth Amendment claim that would not, by itself,
implicate Heck . Thus, whatever the merits of the underlying RICO cause of
1
In fact, it is a near certainty that the conduct at issue was neither criminal
nor did it color any judge’s decision making. As Magistrate Judge Duffin stated in
a similar case brought by Adamski, “[s]poradic instruction of [law enforcement by
judges]…would not tempt an ‘average judge’” to subvert the constitution. See
Adamski v. Gehring, No. 14-CV-500, slip op. at 9 (E.D. Wis. June 25, 2014).
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action might be, the plaintiff’s RICO claims and those derived from them
may not proceed.
Lastly, the Court can easily dispense with Adamski’s conspiracy
allegations relating to civil RICO, see § 1962(d), and those relating to
conspiracy to violate his civil rights pursuant to §§ 1985, 1986. As to the civil
RICO conspiracy, Adamski’s failure to establish standing or a violation of
section 1962(c) necessarily dooms his section 1962(d) conspiracy claim. See
Stachon v. United Consumers Club, Inc., 229 F.3d 673, 677 (7th Cir. 2000) (citing
Midwest Grinding v. Spitz, 976 F.2d 1016, 1026 (7th Cir. 1992)). But, even if this
were not the case, both conspiracy claims fail under Twombly because
Adamski’s conspiracy allegations are threadbare, wholly conclusory, and
based on a dearth of facts. See Twombly, 550 U.S. at 556-57 (“…bare
assertion[s] of conspiracy will not suffice. Without more, parallel conduct
does not suggest conspiracy, and a conclusory allegation of agreement at
some unidentified point does not supply facts adequate to show illegality.”).
Setting aside the three reasons noted above, the Seventh Circuit has
also warned against allowing RICO cases to proceed on the basis of cobbled
together facts and weakly supported allegations. See Limestone Development
Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (“RICO cases,
like antitrust cases, are ‘big’ cases and the defendant should not be put to the
expense of big-case discovery on the basis of a threadbare claim.”). The
Seventh Circuit’s position is derived from Twombly, where, as the Seventh
Circuit explains, the Supreme Court instructed courts not to allow bare
assertions of conspiracy to proceed “lest a defendant be forced to conduct
expensive pretrial discovery in order to demonstrate the groundlessness of
the plaintiff’s claim.” Id. (citing Twombly, 550 U.S. 558-60).
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In light of the foregoing, the Court finds that the plaintiff’s civil RICO
allegations fail for lack of standing, he alleges claims that are Heck-barred,
and fails to plead with particularity a conspiracy under any federal statute.
Lacking these causes of action, the balance of the plaintiff’s claims fall like a
house of cards and, as such, they require no elaboration. The Court is obliged
to dismiss this matter for failure to state a claim and as frivolous.
Accordingly,
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #17) be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that this action be and hereby is
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim and as frivolous.
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 and as frivolous 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 Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the 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.
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IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
IT IS FURTHER ORDERED that copies of this order be sent to the
warden of the institution where the inmate is confined.
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 the plaintiff
offers bonafide arguments supporting his appeal.
Dated at Milwaukee, Wisconsin, this 30th day of March, 2015.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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