Haze v. Kubicek et al

Filing 11

ORDER signed by Judge J P Stadtmueller on 2/24/14 that Plaintiff's claim against the City of Milwaukee is dismissed without prejudice; Plaintiff is still permitted to proceed on his claims against Officer Kubicek. (cc: Plaintiff, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DARRELL K. HAZE,
Plaintiff,
v.

Case No. 13-CV-1344-JPS

MARK KUBICEK and
CITY OF MILWAUKEE,

ORDER
Defendants.
The Court screened the plaintiff’s complaint on January 17, 2014.
(Docket #9). Doing so, it found that the plaintiff’s claim against defendant
Mark Kubicek should be allowed to proceed, but dismissed the plaintiff’s
claim against the City of Milwaukee (“the City”), because the plaintiff had
not alleged a policy, practice, or custom against the City. (Docket #9). The
Court allowed the plaintiff fourteen days to amend his complaint to allege
facts against the City of Milwaukee that could support his claim. (Docket #9).
The plaintiff filed an amended complaint. (Docket #10).
The Court’s task now is to screen the plaintiff’s allegations against the
City, pursuant to 28 U.S.C. § 1915(e)(2), to determine whether the plaintiff
should be allowed to proceed on it. To do so, the court must determine that
the action is neither frivolous nor malicious, does not fail to state a claim, and
does not seek money damages against a defendant immune from such relief.
28 U.S.C. § 1915(e)(2).
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 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.
In performing its analysis of whether Mr. Haze has failed to state a
claim, the Court must be sure to give his 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)).
Even giving Mr. Haze’s amended complaint a liberal construction, the
Court finds that it fails to state a claim against the City. In his amended
complaint, the plaintiff writes entirely in generalities and conclusions. He

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states that the City was negligent in hiring, training, supervising,
disciplining, retaining, and promoting its agents (presumably including the
defendant officer). He also alleges that the City turned a blind eye to abuses
by its officers. These failures, he asserts, caused the violation of his civil
rights. However, these are entirely legal conclusions. Mr. Haze does not
assert any facts that would support his contention that the City had some sort
of policy or custom that could expose it to liability under Monell v. Dep’t of
Social Services, 436 U.S. 658 (1978). Simply put, Mr. Haze does not allege any
factual matter whatsoever, and thus the Court cannot draw the reasonable
inference that the City is liable for misconduct; therefore, his claim against
the City cannot stand. Ashcroft v. Iqbal, 556 U.S. at 662 (quoting Twombly, 550
U.S. at 555).
Accordingly, the Court will again dismiss the plaintiff’s claims against
the City. This time, however, because the Court has given the plaintiff ample
opportunity to amend his complaint, the Court will not provide the plaintiff
with leave to amend. Instead, the plaintiff may proceed only on his claims
against Officer Kubicek. In his most recent amended complaint, he pleaded
substantially the same facts that the Court previously found sufficient to state
a claim. (Compare Docket #10 with Docket #8; Docket #9). The Court will,
therefore, allow the plaintiff to proceed on those claims, while dismissing the
claim against the City in his amended complaint.
At such time as Officer Kubicek has made an appearance by his
attorney, the Court will schedule a scheduling conference at which the
parties will be expected to appear.
Accordingly,

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IT IS ORDERED that, pursuant to 28 U.S.C. § 1915(e)(2) and the
plaintiff’s failure to state a claim against the City, the plaintiff’s claim against
the City in his amended complaint (Docket #10) be and the same are hereby
DISMISSED without prejudice. However, the plaintiff shall still be
permitted to proceed on his claims against Officer Kubicek.
Dated at Milwaukee, Wisconsin, this 24th day of February, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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