Liederbach v. City of Milwaukee Police Department

Filing 8

ORDER signed by Judge Lynn Adelman on 8/17/16 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that by September 9, 2016, plaintiff shall file an amended pleading curing the defects in the original com plaint as described herein and that the Clerks Office mail plaintiff a prisoner complaint form along with this order. Further ordering the Milwaukee County Sheriff or his designee to collect from plaintiffs prisoner trust account the $344.15 balance of the filing fee as set forth herein. (cc: via USPS to plaintiff w/comp. form, Milwaukee County Sheriff, Dennis Brand) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID LIEDERBACH,
Plaintiff,
v.

Case No. 16-CV-833

CITY OF MILWAUKEE POLICE DEPARTMENT,
Defendant.

ORDER

The plaintiff, David Liederbach, who is confined at the Milwaukee County Jail, is
representing himself. He filed a complaint alleging that officers of the City of Milwaukee
Police Department used excessive force against him. This matter comes before the
court on plaintiff’s petition to proceed without prepayment of the filing fee (in forma
pauperis). He has been assessed and paid an initial partial filing fee of $344.15. See
28 U.S.C. § 1915(b)(1).
The court shall 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. “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) (citations omitted).
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 mere “labels and conclusions” or a “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 by Twombly by first, “identifying pleadings that, because they are
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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.
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)).
Complaint Allegations
Plaintiff alleges that on July 24, 2014, Milwaukee Police Officers Aaron V. Frantal
and Matthew L. Davis approached him and “immediately confronted me aggressively
uncoerced [sic].” (ECF No. 1 at 2.) Officer Frantal attempted to grab plaintiff and
Officer Davis attempted to spray him with O.C. spray. Plaintiff blocked the spray. A
physical altercation arose among the three of them. The officers began hitting plaintiff
and he continued to defend himself. The officers used a taser gun on plaintiff several
times. Eventually a third officer, Officer Vargas-Ramos, arrived and tasered plaintiff.
Soon other officers arrived and continued the assault on plaintiff, grabbing and hitting

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him relentlessly. When plaintiff could no longer sustain himself he succumbed to their
weight. Plaintiff was arrested and incarcerated for several days until his release.
Plaintiff alleges that he continues to suffer physically and has been diagnosed
with PTSD from the incident. He does not know why the officers assaulted him.
For relief, plaintiff seeks monetary damages from defendant City of Milwaukee
Police Department for the unnecessary use of excessive force, false imprisonment,
injury, and misconduct in public office.
Discussion
Plaintiff’s allegations implicate his rights under the Fourth Amendment to the
United States Constitution for the following claims: excessive force, false arrest, and
false imprisonment.
However, the only defendant in this case is the City of Milwaukee Police
Department. Because plaintiff seeks damages based on the police officers’ actions
against him, he should name the individual officers as defendants in this case, not the
Milwaukee Police Department.
In addition, on page 5 of the form complaint, plaintiff checked a box indicating
that he is suing under state law based on diversity of citizenship and that he seeking
$1,500,000.

However, based on plaintiff’s claims as described, he is suing under

federal law. Thus, if plaintiff files an amended complaint, he should check the box in the
Jurisdiction section of the complaint that says he is suing for a violation of federal law.
(Plaintiff is advised can still seek money damages while suing under federal law.)
If plaintiff wants to proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein. Such amended complaint
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must be filed on or before September 9, 2016. Failure to file an amended complaint
within this time period may result in dismissal of this action. Plaintiff should use the
enclosed form complaint to file his amended complaint.
The amended complaint must bear the docket number assigned to this case and
must be labeled “Amended Complaint.” The amended complaint supersedes the prior
complaint and must be complete in itself without reference to the original complaint.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 105657 (7th Cir. 1998). If an amended complaint is received, the court will screen it pursuant
to 28 U.S.C. § 1915A.
ORDER
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that on or before September 9, 2016, plaintiff shall
file an amended pleading curing the defects in the original complaint as described
herein.
IT IS FURTHER ORDERED that the Clerk’s Office mail plaintiff a prisoner
complaint form along with this order.
IT IS FURTHER ORDERED that the Milwaukee County Sheriff or his designee
shall collect from plaintiff’s prisoner trust account the $344.15 balance of the filing fee by
collecting monthly payments from 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

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$10 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.
IT IS ALSO ORDERED that copies of this order be sent to the Milwaukee County
Sheriff. A copy should also be sent to Dennis Brand at the Milwaukee County Jail.
IT IS FURTHER ORDERED 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.
Plaintiff is further advised that failure to make a timely submission may result in
the dismissal of this action for failure to prosecute. 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, Wisconsin, this 17th day of August, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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