Glover v. Kenosha County Police Department et al

Filing 8

ORDER signed by Judge J P Stadtmueller on 11/20/13 as follows: granting 2 plaintiff's motion for leave to proceed in forma pauperis; dismissing this action for failure to state a claim; directing the Clerk of Court to document that the plainti ff's action was dismissed for failure to state a claim and that the 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 plai ntiff's prison trust account and forwarding payment to the Clerk as specified; and, certifies 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 Racine Correctional Institution, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RENAUL E. GLOVER, SR.,
Plaintiff,

Case No.13-CV-1164-JPS

v.
KENOSHA COUNTY POLICE
DEPARTMENT,
WISCONSIN DEPARTMENT OF
COMMUNITY CORRECTION,
JOHN MORRISSEY, KEITH DUMESIC,
WILLIAM ROBINSON, and ERIN ANGEL,

ORDER

Defendants.
The plaintiff, who is incarcerated at the Racine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. This matter comes before the court on the
plaintiff’s motion to proceed in forma pauperis. (Docket #2).
The plaintiff has been assessed and paid an initial partial filing fee of
$11.01. 28 U.S.C. § 1915(b)(4).
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.
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)).
In his complaint, plaintiff states that he was arrested as a burglary
suspect on November 23, 2012. Plaintiff contends that his residence was
searched pursuant to a search warrant and that 36 items were removed. He
further asserts that he was deprived of a hearing for 98 days, and that a law
enforcement agent falsified information to place him at the scene of an
alleged crime. With regard to the legal theory supporting his complaint,
plaintiff cites several Wisconsin state criminal procedure statutes and
administrative codes. He also cites “illegal search and seizure 4th
Amendment US Constitution” because his residence was searched without
probable cause. Last, in his statement of relief, plaintiff asks to be released
from custody, compensation for false imprisonment and lost wages, and a
federal investigation into the Kenosha Police Department’s alleged racial
profiling.
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Heck v. Humphrey, a case from the United States Supreme Court,
guides the court’s analysis of plaintiff’s complaint. In that case, Roy Heck
was convicted of voluntary manslaughter and sentenced to fifteen years in
an Indiana prison. Heck v. Humphrey, 512 U.S. 477, 478 (1994). Heck filed a
suit in federal court under Section 1983, naming his prosecutors and a police
investigator as defendants. Id. at 479. The complaint alleged that defendants
engaged in an unlawful investigation, destroyed exculpatory evidence, and
caused an illegal voice identification procedure to be used at plaintiff’s trial.
Id. The district court dismissed the complaint because Heck’s claims “directly
implicate the legality of [his] confinement.” Id. The Seventh Circuit affirmed,
and the United States Supreme Court granted certiorari. Id. at 479-80. The
Court held that:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
Id. at 486-87. The Supreme Court instructed District Courts considering
complaints for damages under Section 1983 to first consider whether
judgment in favor of the plaintiff would “necessarily imply the invalidity of
his conviction or sentence.” Id. at 487. If the implication of a judgment in
plaintiff’s favor is that the conviction is invalid, then the court should dismiss

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the complaint unless the plaintiff has demonstrated that the conviction has
already been invalidated. Id.
Plaintiff’s factual averments and legal argument are comparable to
Heck’s, and, unfortunately for plaintiff, the outcome must be the same.
Plaintiff asserts several violations of his rights as an individual under
suspicion of having committed a crime and as a defendant. Were this court
to decide that his conviction is based on evidence acquired via an
unconstitutional search or due to racial profiling, this would certainly imply
that his conviction is invalid. So, too, with plaintiff’s assertion regarding the
falsified police reports; a finding that the officer misrepresented facts to the
court in the criminal proceedings implies that plaintiff was wrongly
convicted. Because his claims for damages challenge the legality of his
conviction, and because plaintiff remains in custody and has not
demonstrated that his conviction has been invalidated, the plaintiff’s Section
1983 claims are not cognizable and the court is obliged to dismiss plaintiff’s
complaint. Heck, 512 U.S. at 487; Neitzke, 490 U.S. at 327.
Accordingly,
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim.
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).

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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 $338.99 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 $10.00 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.
The Clerk of Court is directed to 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 20th day of November, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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