Hewing et al v. State of Wisconsin et al

Filing 24

DECISION AND ORDER signed by Judge Pamela Pepper on 12/28/2016 SCREENING 23 Plaintiff's Amended Complaint. (cc: all counsel; by US Mail to Plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARQUEAL HEWING,
Plaintiff,
v.

Case No. 15-cv-753-pp

THOMAS OZELIE, and
ALLAN TENHAKEN,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING THE PLAINTIFF’S SECOND AMENDED
COMPLAINT (DKT. NO. 23)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the “Milwaukee Police
Department” violated his Fourth Amendment rights during his arrest. Dkt. No.
1. On September 3, 2015, the court ordered the plaintiff to file an amended
complaint, to address several problems that the court identified in the original
complaint. Dkt. No. 13. The plaintiff filed an amended complaint on September
24, 2015, dkt. no. 15, but after the court reviewed it, the court concluded that
the amended complaint hadn’t resolved the issues it had identified, and it
ordered the plaintiff to file a second amended complaint. Dkt. No. 16.
Specifically, the court explained that the plaintiff might have a Fourth
Amendment claim against someone based on his allegations that he was
arrested without probable cause and was not given a hearing within forty-eight
hours, but that the “Milwaukee Police Department” was not a suable entity

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under §1983. See Dkt. Nos. 16, 19, 22. On October 17, 2016, the plaintiff filed
a seconded amended complaint, dkt. no. 23, which the court screens below.
II.

SCREENING OF PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The law requires the court to screen complaints, including amended
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 part or all of a complaint 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); 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, 110910 (7th Cir. 2003) (citations omitted).
To state a 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
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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
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 of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
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Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
B.

Facts Alleged in the Second Amended Complaint

On November 26, 2014, Milwaukee County Police Officers Allan
Tenhaken and Thomas Ozelie arrested the plaintiff without a warrant on the
2400 block of West Wisconsin Avenue. Dkt. No. 23 at 1. “The Milwaukee Police
had no probable cause” to arrest the plaintiff, and “the Milwaukee County
Justice System” did not follow “the proper steps and procedures . . . in
prosecuting the []plaintiff.” Id. The plaintiff “was charged with two offenses,
processed to the Milwaukee County Jail, [b]ooked and t[a]k[en] through the
procedures in prosecuting [him.]”
The plaintiff’s defense attorney, Richard Hurt, asked that the District
Attorney’s office send him a copy of the probable cause determination. Id.
“[T]hey indicated that they did not have one.” Id. Attorney Hurt also went to the
District Attorney’s office to “personally review the court file in trying to obtain
the probable cause and judicial determination form” and he “determined that
there was ‘no such file’ in the court file.” Id.
The plaintiff goes on to allege that “[a]ccording to the original CR-215
document it was not properly endorsed by a judge or a commissioner and is a
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direct violation of the ‘Riverside Rule.’” Id. 2-3. “A ‘new’ probable cause and
judicial determination form was ‘mysteriously’ found months later…and could
not have been the authentic original copy of the probable cause statement and
judicial determination form which was not endorsed by a judge or
commissioner.” Id. at 3. The “new” probable cause determination was endorsed
by Commissioner J.C. Moore. Id.
C.

Analysis

The Fourth Amendment protects an individual’s right to be “secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures,” and provides that “no [w]arrants shall issue, but upon probable
cause.” U.S. CONST. AMEND. IV. Following a warrantless arrest, the Fourth
Amendment requires timely judicial determination of probable cause. Gerstein
v. Pugh, 420 U.S. 103, 114 (1975). A probable cause determination made
within forty-eight hours of arrest is presumptively “prompt.” County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). After forty-eight hours, the
burden shifts to the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance to justify the delay. Id. at 57.
The forty-eight-hour timeframe referenced in County of Riverside seeks to
accommodate arraignment procedures that differ from state to state while still
protecting an individual’s liberty rights. Id.
The second amended complaint asserts that defendants Ozelie and
Tenhaken arrested the plaintiff without probable cause. Dkt. No. 23 at 1. That
is the only reference in the second amended complaint to any individual
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defendant doing anything. The remainder of the second amended complaint
still refers to “the Milwaukee police” as the actors who “did not have probable
cause to arrest him” and who did not complete the “Probable Cause and
Judicial Determination Form” that the plaintiff asserts is required by County of
Riverside for warrantless arrests. The plaintiff still has not told the court what
individual humans prevented him from getting a probable cause hearing.
The amended complaint also asserts that
a “new” Probable Cause and Judicial Determination Form was
*mysteriously* found months later and should be considered,
could not have been the “authentic original” copy of the
Probable Cause Statement and Judicial Determination Form,
which was not endorsed by a Judge or Commissioner. The
‘”new” Probable Cause and Judicial Determination had been
endorsed by the commissioner J.C. Moore and my
understanding that this was inconsistent with the “authentic
original” copy that I have.
Dkt. No. 23 at 3. The plaintiff alleges that this “new” form constituted a
violation of Wis. Stat. §§970.01(2) and 971(2), and he asks the court to
“consider that this whole process was null and void.” Id.
After three tries, the plaintiff has alleged that defendants Ozelie and
Tenhaken arrested him without probable cause. The court will allow the
plaintiff to proceed against defendants Ozelie and Tenhaken on the claim that
they arrested him without probable cause, in violation of his Fourth
Amendment rights.
After three tries, the plaintiff has failed to identify who prevented him
from getting a probable cause hearing within forty-eight hours. Was it the two
arresting officers? Was it an assistant district attorney? Was it a court
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commissioner, or a judge? He says that the “Milwaukee County Justice
System” did not use the proper steps or procedures, but does not say who in
that system kept him from getting a probable cause hearing within forty-eight
hours. The court will not allow him to proceed on that claim.
Finally, the court will not allow the plaintiff may to proceed with his
claims that someone intentionally altered or doctored documents in his
criminal file because he does not allege who took these actions. Such
allegations sound a bit like a claim for malicious prosecution. To prove
malicious prosecution under Wisconsin law, the plaintiff would have to prove,
among other things, who took the steps to maliciously prosecute him, and he
would have to prove that the prosecution terminated in his favor. Wisconsin
Public Serv. Corp. v. Andrews, 316 Wis.2d 734, 747 (Wis. Ct. App. 2009).
Again, the plaintiff has failed to identify who might have doctored or tampered
with the forms in his file, and he cannot prove that the prosecution terminated
in his favor because he was convicted. See State v. Hewing, Milwaukee County
Circuit Court case number 2014CF005354, available on
https://wcca/wicourts/gov.
III.

CONCLUSION
The court ORDERS that plaintiff may proceed with one one claims—his

claim that Thomas Ozelie and Allan Tenhaken arrested him without probable
cause in violation of the Fourth Amendment.
The court further ORDERS that pursuant to the informal service
agreement between Milwaukee County and this court, copies of the plaintiff’s
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complaint and this order are being electronically sent to Milwaukee County for
service on Thomas Ozelie and Allan Tenhaken.
The court also ORDERS that, pursuant to the informal service agreement
between Milwaukee County and this court, Thomas Ozelie and Allan Tenhaken
shall file a responsive pleading to the complaint within sixty days of receiving
electronic notice of this order.
Dated in Milwaukee, Wisconsin this 28th day of December, 2016.

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