Brown v. Jachowicz et al

Filing 10

DECISION AND ORDER signed by Judge Pamela Pepper on 10/2/2015 GRANTING 2 Motion for Leave to Proceed in forma pauperis; DENYING 8 Motion to Appoint Counsel; and SCREENING 7 Plaintiff's Amended Complaint; defendants Janelle Jurkiewicz and Jane Doe are DISMISSED (cc: all counsel; by US Mail on 10/5/2015 to Plaintiff and Warden at Kenosha CI) (pwm) Modified on 10/2/2015 (vkb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHRISTOPHER DANIEL BROWN,
Plaintiff,
v.

Case No. 15-cv-237-pp

ROBERT B. JACHOWICZ,
GLEN HAASE,
BRIAN M. OLSON,
ANDREW AYALA,
JANELLE JURKIEWICZ, and
JANE/JOHN DOE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL (DKT. NO. 8) AND SCREENING
PLAINTIFF’S AMENDED COMPLAINT (DKT. NO. 7)
______________________________________________________________________________
The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C.
§1983, alleging that the defendants violated his civil rights during and after his
arrest. Dkt. No. 1. He filed the amended complaint that is the subject of this
order on June 4, 2015. Dkt. No. 7. This order resolves the plaintiff’s motion for
leave to proceed in forma pauperis (Dkt. No. 2) and his motion to appoint
counsel (Dkt. No 8), and screens the plaintiff’s amended complaint.
I.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Dkt. No.
2)
The Prison Litigation Reform Act applies to this action because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
law allows a court to give an incarcerated plaintiff the ability to proceed with
1

his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff to pay the balance of
the $350 filing fee over time, through deductions from his prisoner account. Id.
On March 4, 2015, the court issued an order requiring the plaintiff to
pay an initial partial filing fee of $20.59. Dkt. No. 4. The plaintiff paid that
amount on March 23, 2015. The court will grant the plaintiff’s motion for leave
to proceed in forma pauperis, and will allow the plaintiff to pay the balance of
the $350 filing fee over time from his prisoner account, as described at the end
of this order.
II.

Screening of the Plaintiff’s Amended Complaint (Dkt. No. 7)
The law requires the court 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 plaintiff raises 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) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). The court may, therefore, dismiss a claim
as frivolous where it is “based on an indisputably meritless legal theory” or
2

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) (internal citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. 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 follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
3

of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “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 the defendants: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. of N. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
A.

Allegations in the Complaint

In his sworn complaint, the plaintiff describes the actions of members of
the City of Cudahy Police Department during his arrest on May 26, 2014, Dkt.
No. 7 at 2, and his subsequent treatment at St. Luke’s South Shore Hospital,
id. at 3.
The plaintiff was standing in a field in Cudahy when four police officers
(Jachowicz, Haase, Olson, and Ayala) and a K-9 named Ezzo approached him.
Id. at 2. Officer Jachowicz ordered the plaintiff to stop, informed the plaintiff he
was under arrest, and ordered the plaintiff to place his hands behind his back.
At the same time, another officer ordered the plaintiff to place his backpack on
4

the ground. “Ezzo bark[ed] loudly,” id., and Officer Olson told the plaintiff to get
on the ground. Officer Jachowicz pulled out his gun and pointed it at the
plaintiff’s face, and the plaintiff immediately put his hands up in the air. Id.
Officers then pushed the plaintiff to the ground, and he was face down in
rocks and other sharp objects. The officers placed their full body weight on the
plaintiff’s upper body and head, which made it difficult for the plaintiff to
breathe; he eventually was able to turn his head to the side to get some air.
Officers then handcuffed the plaintiff behind his back, dragged him to the
police van, and threw him face first into the van. Id. The plaintiff was not
placed in any safety restraints, and he was thrown violently from side to side
when the van moved. The plaintiff eventually moved his hands from behind his
back to the front of his body so that he could brace himself. Id. at 3.
The officers transported the plaintiff to St. Luke’s South Shore Hospital.
After he was admitted, the plaintiff was handcuffed to the emergency room bed
and his legs were secured by restraints. The plaintiff refused medical treatment
and tests and informed medical professionals that he would not be giving a
blood sample without a warrant. The doctor responded that the blood sample
was for medical use only, and could not be used in court. Id.
When an emergency medical technician (EMT) came in and approached
the plaintiff with a needle, he told her twice more that he would not give a
blood sample. When she continued to approach, Officer Jachowicz and
Sergeant Haase said the plaintiff spit on the EMT’s shirt. Id. The EMT left the
room, and Officer Jachowicz placed a pillow over the plaintiff’s face so that
5

Sergeant Haase, Officer Olson, Officer Ayala, and Officer John Doe could place
a spit mask over the plaintiff’s face. The EMT then returned, and the officers
held the plaintiff down while the EMT took a blood sample against the
plaintiff’s consent. Haase and the attending doctor decided to sedate the
plaintiff, because he had caused a verbal disturbance. Id.
That same day, Jachowicz and Haase wrote police reports, discussing the
medical procedure. They also filed a police report, but the plaintiff alleges that
report omitted critical facts about what had happened at the hospital.
Jachowicz also filed a probable cause statement which omitted critical facts. Id.
The plaintiff alleges that two days later, Janelle Jurkiewicz filed a
criminal complaint with the district attorney’s office, which relied on the
allegedly incomplete and incorrect factual recitation in the police reports. Id. at
3-4. In September 2014, Jachowicz testified in court about the incident. Id. at
4.
The plaintiff believes that Officer Jachowicz and Sergeant Haase
misstated or omitted facts from their police reports and the probable cause
statement, and that Officer Jachowicz perjured himself when he testified in the
plaintiff’s criminal case. Id. at 4-6.
B.

Analysis

The plaintiff alleges that the arresting officers violated the plaintiff’s
Fourth, Fifth, Eighth and Fourteenth Amendment rights through using
excessive force, harassing him, and violating his right to confidentiality of his
medical information. Id. at 4-6. He also alleges that Jachowicz and Jurkiewicz
6

lied under oath, and that the City of Cudahy police department failed to
properly train the officers and withheld evidence (a video taken while the
plaintiff was incarcerated in a city facility). Id. at 5-6.
The facts imply that the police officers arrested the plaintiff without a
warrant. If that is so, the Fourth Amendment applies to the plaintiff’s claims,
because the rights of pretrial detainees who have not yet had a judicial
determination of probable cause arise under the Fourth Amendment and its
objectively unreasonable standard, instead of the due process clause of the
Fourteenth Amendment. Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir.
2007); Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir. 2006) (“[T]he
protections of the Fourth Amendment apply at arrest and through the Gerstein
probable cause hearing, due process principles govern a pretrial detainee’s
conditions of confinement after the judicial determination of probable cause,
and the Eighth Amendment applies following conviction.”).
“The Fourth Amendment protects against unreasonable seizures; an
arrest is a seizure . . . .” Lopez, 464 F.3d at 718. To determine whether officers
subjected a party to “unconstitutional conditions and treatment during . . .
warrantless detention,” the court must determine whether there is “p[roof that
the defendant[‘]s[] conduct was objectively unreasonable under the
circumstances.” Id. (citing Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th
Cir. 2005)). The allegations in the plaintiff’s complaint are sufficient to allow
him to proceed on Fourth Amendment claims that defendants Jachowicz,
Haase, Olson, Ayala, and John Doe engaged in objectively unreasonable
7

conduct during his arrest, as well as during his transportation to and time at
the hospital. This includes claims regarding what the plaintiff asserts was a
non-consensual warrantless blood draw that took place without his consent.
The plaintiff’s next set of claims relates to the police reports, probable
cause statement, and criminal complaint. The plaintiff alleges that Officer
Jachowicz and Sergeant Haase made false statements in police reports, and
that Officer Jachowicz made false statements in the probable cause statement
and perjured himself when he testified in the plaintiff’s criminal case. The
plaintiff also asserts that Officer Jurkiewicz made a false swearing in the
criminal complaint against the plaintiff because she relied on the false police
reports by the other officers.
It appears that through these claims, the plaintiff is challenging the
validity of his criminal conviction.
[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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). As the Seventh Circuit put it
in Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008),
[a] § 1983 claim for a due process violation based on the
denial of a fair criminal trial may be brought only after the
conviction is set aside. Otherwise, that civil claim would imply
the invalidity of the outstanding conviction and would thus
8

constitute a collateral attack on the conviction through an
impermissible route.
The plaintiff has appealed his criminal conviction. State v. Brown, Case
No. 2015XX551-CR, available at http://wscca.wicourts.gov. That appeal,
however, is still pending; the court of appeals has not yet issued a ruling (in
fact, the parties have not yet filed briefs). Because the plaintiff’s conviction has
not been overturned or set aside, the court will not allow the plaintiff to
proceed on these claims, and the court will dismiss Officer Jurkiewicz as a
defendant.
In his list of legal theories, the plaintiff suggests that the City of Cudahy
Police Department and some of its officers knowingly withheld videotape
evidence of the plaintiff’s incarceration at their facility and did not disclose this
evidence prior to trial, in violation of the Fourteenth Amendment. The court will
not allow the plaintiff to proceed on this claim, because he does not allege any
facts to support it. He does not describe any time he spent in the custody of the
City of Cudahy Police Department, or explain what might have been on any
videotape taken during that time.
In fact, the court will not allow the plaintiff to proceed on any claims
against the City of Cudahy Police Department. He did not name the City of
Cudahy Police Department in either the caption of the complaint or the Section
II.E. of the complaint, where he listed the names of the defendants. “[T]o make
someone a party the plaintiff must specify him in the caption and arrange for
service of process.” Myles v. United States, 416 F.3d 551, 551 (7th Cir. 2005).
The court cannot “deem” someone a defendant to a lawsuit. Id.
9

Nor will the court allow the plaintiff to proceed on his claims regarding
violations of his patient confidentiality. “[The Health Insurance Portability and
Accountability Act] does not furnish a private right of action.” Carpenter v.
Phillips, 419 F. App’x 658, 659 (7th Cir. 2011) (collecting cases). Some circuits
have recognized a privacy right for prisoners in their medical information, but
those cases have involved the purposeful dissemination of intensely private
medical information, such as HIV-positive status. See Franklin v. McCaughtry,
110 F. App’x 715, 718-19 (7th Cir. 2004) (refusing to recognize such a privacy
right, but noting decisions to the contrary in regard to HIV status in Doe v.
Delie, 257 F.3d 309, 311 (3d Cir. 2001) and Powell v. Schriver, 175 F.3d 107,
109 (2d Cir. 1999)). In Franklin, the Seventh Circuit noted that prisoners “at
best have very limited privacy rights” and “cannot enjoy greater privacy
protection than individuals in free society.” Id. at 719. The Court also noted
that “some amount of sharing of medical information in areas where it might be
overheard by other patients—e.g., in hospital emergency rooms, school
infirmaries, and the waiting room of a doctor’s office—is commonplace.” Id.
Like the plaintiff in Franklin, the plaintiff in this case complains only of the
presence of officers during his medical treatment. He has no privacy right in
that regard.
Finally, the plaintiff suggests that Officer Jachowicz’s treatment of the
plaintiff was in retaliation for his behavior after a previous arrest, and because
he did not express remorse for that behavior. Dkt. No. 7 at 6. To state a
retaliation claim, a plaintiff must allege that “(1) he engaged in activity
10

protected by the First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3) the First
Amendment activity was at least a motivating factor in the [d]efendants’
decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009) (internal quotations omitted). The plaintiff alleges that he was
“rude” to Officer Jachowicz, Dkt. No. 7 at 6; this allegation is not specific
enough to allege exercise of a First Amendment right. He alleges that he
“relieve[d] [himself] on the police department floor.” Id. Again, without further
facts, this is not sufficient to state exercise of a First Amendment right. Finally,
he alleges that he “did not express remorse when [he] went to civil court and
contested the tickets [he] received from that arrest.” Id. Failure to express
remorse does not constitute the exercise of a First Amendment right. For these
reasons, the court will not allow the plaintiff to proceed on a retaliation claim.
The court also notes that the plaintiff listed in the caption of the
amended complaint, and in Section II€, a defendant “Jane Doe.” There is no
further mention of “Jane Doe” anywhere in the complaint, and there are no
allegations that a “Jane Doe” did anything to the plaintiff. He references one
“John Doe” defendant, an officer who was in his hospital room and helped put
the spit mask on the plaintiff’s face. The court has allowed the plaintiff to
proceed on Fourth Amendment claims against the John Doe defendant, but
will dismiss the Jane Doe defendant. Once the defendants have answered the
complaint, the plaintiff should use discovery to identify the officer identified as
“John Doe” who was present in the plaintiff’s hospital room. After the plaintiff
11

has identified the officer, he should move to substitute the officer’s true name
for “John Doe.”
III.

Plaintiff’s Motion to Appoint Counsel (Dkt. No. 8)
The plaintiff has filed a motion asking the court to appoint an attorney to

represent him. Dkt. No. 8. The motion states that the allegations in his
complaint are complex, that he has only basic knowledge of federal law, and
that he does not have the ability to take depositions. He states that he sent
letters to twelve lawyers, asking them to represent him. He states that he
received only two responses, and those two indicated that they could not
represent him. The rest did not respond. Id.
In a civil case, the court has discretion to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696
(7th Cir. 2013); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th
Cir. 2013). First, the person has to make a reasonable effort to hire private
counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). After a
plaintiff makes that reasonable attempt to hire counsel, the court then must
decide “whether the difficulty of the case – factually and legally – exceeds the
particular plaintiff’s capacity as a layperson to coherently present it.” Navejar,
718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). To decide that, the court looks,
not only at a plaintiff’s ability to try his case, but also at his ability to perform
other “tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.

12

The plaintiff states that he wrote to twelve lawyers asking them to take
his case, and that two responded that they would not represent him. But the
plaintiff does not provide information to support these statements (such as the
names of the attorneys, the dates he sent the letters, or who wrote back
refusing to represent him). The plaintiff will need to provide the names of at
least three attorneys he has tried to contact before the court can conclude that
he has made a “reasonable attempt” to hire counsel on his own.
The court also notes that, at this stage, even if the plaintiff had provided
proof that he’d contacted at least three attorneys, the court would not appoint
counsel. The court does not agree with the plaintiff that his claims are
complex, and he has done a good job thus far of explaining the facts and his
legal theories for why those facts demonstrate constitutional violations. The
plaintiff’s amended complaint is articulate, detailed and organized, and it is
sufficient—at this point in the case—to allow the court and the defendants to
understand his claims. The court will deny the plaintiff’s request for
appointment of counsel without prejudice; he may renew it at a later date if he
provides proof that he has contacted attorneys and demonstrates that the case
has become too complex for him to handle himself.
IV.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed in forma

pauperis (Dkt. No. 2).
The court DISMISSSES Janelle Jurkiewicz and Jane Doe as defendants.

13

The court ALLOWS the plaintiff to proceed on Fourth Amendment claims
only against defendants Jachowicz, Haase, Olson, Ayala, and John Doe.
The court DENIES the plaintiff’s motion to appoint counsel (Dkt. No. 8).
The court ORDERS the United States Marshal to serve a copy of the
complaint and this order upon the following defendants pursuant to Federal
Rule of Civil Procedure 4: Robert B. Jachowicz, Glen Haase, Brian M. Olson,
and Andrew Ayala. Congress requires the U.S. Marshals Service to charge for
making or attempting such service. 28 U.S.C. §1921(a). The current 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.
The court ORDERS that the defendants who are served shall file a
responsive pleading to the complaint.
The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $329.41 balance of the filing fee by collecting monthly payments 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 Secretary shall clearly identify those payments by the case
name and number.
14

The court will send a copy of this order to the warden of the institution
where the inmate is confined.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
United States District Court
Office of the Clerk
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the case.
Because each filing will be electronically scanned and entered on the
docket upon receipt by the clerk, the plaintiff need not mail copies to the
defendants. All defendants will be served electronically through the court’s
electronic case filing system. The plaintiff also should retain a personal copy of
each document filed with the court.
The court advises the plaintiff that if he fails to timely file documents, it
may result in the dismissal of this case for failure to prosecute.

15

In addition, the parties must notify the clerk of court of any change of
address. Failure to do so could result in orders or other information not being
timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee this 2nd day of October, 2015.

16