Cannon v. Newport et al

Filing 8

DECISION AND ORDER signed by Judge Pamela Pepper on 3/15/2016 GRANTING 6 Plaintiff's Motion to Vacate in Order to Allow Plaintiff to Amend his Complaint; VACATING the 5 Judgment, SCREENING the plaintiff's proposed Amended Complaint and DISMISSING Jason Aldana, C/O Atkinson and the Racine CI as defendants. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
BILLY CANNON,
Plaintiff,
v.

Case No. 16-cv-10-pp

DEAN NEWPORT, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION TO VACATE IN
ORDER TO ALLOW PLAINTIFF TO AMEND HIS COMPLAINT (DKT. NO. 6),
VACATING THE COURT’S JANUARY 20, 2016 JUDGMENT (DKT. NO. 5),
AND SCREENING THE PLAINTIF’S PROPOSED AMENDED COMPLAINT
(DKT. NO. 6-1)
______________________________________________________________________________
On January 19, 2016, the court entered a lengthy order dismissing the
plaintiff’s complaint because the plaintiff failed to state a claim. Dkt. No. 4. On
February 18, 2016, the plaintiff filed a motion under Fed. R. Civ. Pro. 59(e) or
60(b)(6), asking the court to vacate the judgment. Dkt. No. 6. The plaintiff also
attached to his motion a proposed amended complaint. Id. The plaintiff
explained, “The attached proposed amended complaint will set forth more
specific facts along with attached document evidence that will prove that the
defendants intentionally with the malicious intent to violate the plaintiff’s First,
Fourth, and Fourteenth Amendment Rights.” Id.
Rule 59(e) motions serve a very limited purpose in civil litigation. A court
may alter or amend a judgment pursuant to Rule 59(e) when there is newly
discovered evidence or where there has been a manifest error of law or fact.

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Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (citing
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)).
Rule 59(e) requires that the movant “clearly establish” one of the
aforementioned grounds for relief. Id. (citing Romo v. Gulf Stream Coach, Inc.,
250 F.3d 1119, 1122 n.3 (7th Cir. 2001)). A court also may vacate a judgment
under Rule 60(b) for several reasons, including mistake and excusable neglect.
See Fed. R. Civ. P. 60(b). However, “Rule 60(b) relief is an extraordinary remedy
and is granted only in exceptional circumstances.” Id. (quoting Karraker v.
Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005)).
The plaintiff’s motion does not, on its own, satisfy the requirements of
Rule 59(e) or Rule 60(b): The motion does not identify any newly discovered
evidence, errors of law or fact, or mistakes, nor does it provide facts that would
allow the court to conclude that there was excusable neglect or fraud. In other
words, the plaintiff does not challenge the court’s decision on the original
complaint; he just wants another chance to try and state a claim.
The court notes that the proposed amended complaint is significantly
shorter than the one the court dismissed, and names only a fraction of the
previously named defendants. It appears that the plaintiff took time to digest
the court’s screening order, and tried to draft his amended complaint in line
with the court’s observations. The court also notes, however, that, while they
are in the same ballpark, the facts and theories stated in the proposed
amended complaint aren’t entirely consistent with those in the original

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complaint. Nonetheless, the plaintiff is representing himself, so this court is
required to give him some leeway.
As explained below, the court finds that the plaintiff’s proposed amended
complaint states a claim. Therefore, in the interest of justice, the court will
vacate the judgement of dismissal and re-open this case, with the plaintiff’s
proposed amended complaint serving as the operative complaint. The court will
screen the amended complaint in accordance with 28 U.S.C. § 1915A.
Standard for Screening Complaints
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 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).
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
specific facts, and her 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,
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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.
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.

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Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).

Allegations in the Plaintiff’s Complaint
In July 2012, the plaintiff was incarcerated at the Racine Correctional
Institution (RCI). Dkt. No. 6-1 at 3. The plaintiff states that he had an
institutional job and an “impeccable institution record,” with no warnings or
conduct reports Id. at 3-4.
In September 2012, the plaintiff filed a “John Doe Complaint” pursuant
to Wis. Stat. §968.26, based on his belief that defendant Dean Newport, a
Milwaukee police officer, had committed a crime. Id. at 4. The plaintiff states
that Newport found out about the complaint and “retaliated” against him by
“initiat[ing] an illegal criminal investigation against the plaintiff . . . .” Id. This
investigation resulted in the “confiscation of the plaintiff’s legal paper and
files.” Id. The plaintiff alleges that the “search was illegal and ‘unreasonable’”
and therefore violated the Fourth Amendment. Id.
Specifically, the plaintiff alleges that Newport falsely represented himself
as an Alcohol, Tobacco, and Firearms agent to defendants Jason Aldana and
C/O Atkinson, both of whom work at RCI. Id. at 5. Newport allegedly told
Aldana and Atkinson that “he had started a criminal investigation against the
plaintiff and [he] needed Aldana and Atkinson to go into the plaintiff’s cell and
seize all the plaintiff’s legal and personal papers and files.” Id.

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On October 10, 2012, Aldana and Atkinson “‘without a warrant’ entered
into the plaintiff’s cell, seized all of the plaintiff’s legal and personal papers, and
. . . handed over the plaintiff’s legal and personal papers to Newport to further
his criminal investigation against the plaintiff.” Id.
While the plaintiff repeatedly emphasizes that Aldana and Atkinson
“seize[d] all of the plaintiff’s legal and personal papers for the purpose to
further Newport’s criminal investigation of the plaintiff,” id. at 5, 7, he also
alleges that “the defendant’s [sic] all agreed to seize all of the plaintiff[‘s] legal
papers and files . . . for the sole purpose to deny the plaintiff his First and
Fourteenth Rights [sic] to access the court, and to prevent the plaintiff from
appealing his criminal conviction.” Id. at 6.
According to the plaintiff, the defendants refused to return, destroyed, or
lost “the legal papers that the plaintiff was going to file on a post-conviction
[sic] in the Circuit Court of Milwaukee County . . . .” Id. He alleges that they
“have not made any attempt to return the illegally said confiscated legal papers
and files” and therefore “have denied the plaintiff access to the court and
prevented the plaintiff from appealing” his conviction in Case No. 09-CF-1337.
Id. at 7-8.
The plaintiff also names RCI as a defendant, alleging that it has an
“unwritten policy and custom allowing Aldana and Atkins to seize all of the
plaintiff’s legal paper[s]” and “allowing defendant Newport to come into RCI to
seize the plaintiff’s legal papers and material ‘without a warrant’ for the sole
purpose to further a criminal investigation by Newport.” Id. at 2.
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Analysis of the Plaintiff’s Allegations
The plaintiff fails to state a claim against RCI. The Supreme Court has
held that “Section 1983 provides a federal forum to remedy many deprivations
of civil liberties, but it does not provide a federal forum for litigants who seek a
remedy against a State for alleged deprivations of civil liberties. The Eleventh
Amendment bars such suits unless the State has waived its immunity . . . .”
Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). RCI is a state
entity, not a “person or persons acting under color of state law,” and therefore
under the Supreme Court’s holding in Will, the plaintiff may not seek §1983
relief against it.
Next, the plaintiff fails to state a claim against Newport, Aldana or
Atkinson based on his allegations that the “illegal” search of his cell “without a
warrant” violated his Fourth Amendment rights. The Supreme Court has held
that “the Fourth Amendment proscription against unreasonable searches does
not apply within the confines of the prison cell. The recognition of privacy
rights for prisoners in their individual cells simply cannot be reconciled with
the concept of incarceration and the needs and objectives of penal institutions.”
Hudson v. Palmer, 468 U.S. 517, 526 (1984). For this reason, the court will not
allow the plaintiff to proceed on his Fourth Amendment claim.
The plaintiff also fails to state an access-to-the-courts claim against
Newport, Aldana or Atkinson. While the “Supreme Court has long recognized a
prisoner’s fundamental right of access to the courts,” it also has acknowledged
that the right “is not an unlimited one; it assures only meaningful access to the
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court.” Lehn v. Holmes, 364 F.3d 862 865-66 (7th Cir. 2004) (citations
omitted). The plaintiff alleges that when the defendants seized his legal
materials, they “prevented the plaintiff from filing legal papers in the state
court to initiate the plaintiff’s appeal” in Case No. 09-CF-1337. A quick review
of the Supreme Court and Court of Appeals Access website for the Wisconsin
Court System, however, reveals this allegation to be untrue. The plaintiff did
initiate an appeal of his conviction in Case No. 09-CF-1337. In fact, the Court
of Appeals affirmed the circuit court’s decision on November 12, 2014, in Case
No. 2013-AP-2858. See http://wscca.wicourts.gov/
caseDetails.do?caseNo=2013AP002858&cacheId=FE82B1276979B029139EAA
E55F4DE08A&recordCount=1&offset=0 (last visited Feb. 23, 2016). Because
the plaintiff was not prevented from appealing his conviction in 09-CF-1337 as
he claims, the court will not allow the plaintiff to proceed against the
defendants on this basis.
The court will allow the plaintiff to proceed on his claim that Newport
retaliated against him by initiating a criminal investigation of the plaintiff after
he learned that the plaintiff had filed a John Doe complaint making allegations
about Newport.
To state a First Amendment claim for retaliation, a plaintiff must
allege that ‘(1) he engaged in activity 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
defendants’ decision to take the retaliatory action.’
Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009)).
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The plaintiff has alleged that he engaged in activity protected by the First
Amendment—the guarantee of freedom of speech protects the plaintiff’s right to
allege that he believed Newport engaged in criminal activity. He also alleges
that he suffered a deprivation—Newport initiated a criminal investigation of the
plaintiff. And, finally, the plaintiff has alleged that Newport was motivated by
the plaintiff’s First Amendment activity—Newport allegedly initiated the
investigation because the plaintiff filed a John Doe petition about him. The
court finds that these allegations are sufficient to allow the plaintiff to proceed
on a retaliation claim against Newport.
Conclusion
The court GRANTS the plaintiff’s motion to vacate (Dkt. No. 6), and
VACATES the judgment entered on January 20, 2016 (Dkt. No. 5). The court
further ORDERS the clerk of court to re-open this case, and to docket the
plaintiff’s proposed amended complaint (Dkt. No. 6-1) as the operative
complaint in this matter.
The court ALLOWS the plaintiff to proceed on his First Amendment
retaliation claim against Dean Newport. The court DISMISSES Jason Aldana,
C/O Atkinson, and the Racine Correctional Institution as defendants.
The court ORDERS that the United States Marshal shall serve a copy of
the amended complaint and this order upon defendant Dean Newport,
pursuant to Federal Rule of Civil Procedure 4. The plaintiff is advised that
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-of9

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 further ORDERS that defendant Dean Newport shall file a
responsive pleading to the amended complaint.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
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 matter. As 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 should also retain a personal copy of each document filed with the
court.
The court further advises the plaintiff that if he does not timely file
documents, the court may dismiss his case for failure to prosecute.

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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 in Milwaukee, Wisconsin this 15th day of March, 2016.

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