Coleman v. Racine County Sheriff et al

Filing 15

ORDER signed by Judge Pamela Pepper on 8/28/2017 ADOPTING 14 Magistrate Judge William E. Duffin's REPORT AND RECOMMENDATIONS and DISMISSING CASE for failure to state a claim. (cc: all counsel, via mail to Dwaine Marcus Coleman)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DWAINE MARCUS COLEMAN,

Case No. 16-cv-892-pp

Plaintiff,
v.
RACINE COUNTY SHERIFF,
RACINE COUNTY DISTRICT ATTORNEY,
RACINE COUNTY CLERK OF COURTS,
and COUNTY OF RACINE.
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 14) AND
DISMISSING CASE FOR FAILURE TO STATE A CLAIM

On July 8, 2016, plaintiff Dwaine Marcus Coleman filed a complaint
against the Racine County Sheriff, the Racine County District Attorney, the
Racine County Clerk of Courts, and the County of Racine. Dkt. No. 1. Although
the plaintiff consented to magistrate judge jurisdiction (dkt. no. 5), the
defendants have not been served and have not had the opportunity to consent.
On August 24, 2016, Magistrate Judge William E. Duffin entered an order
requiring the plaintiff to show cause why the court should not dismiss the case
for failure to pay a filing fee. Dkt. No. 8. Satisfied with the plaintiff’s response,
Judge Duffin granted the plaintiff’s motion for leave to proceed without
prepayment of the filing fee, and ordered the plaintiff to file an amended
complaint. Dkt. No. 10. On July 26, 2017, Judge Duffin issued a report
screening the amended complaint, and recommending that this court dismiss
1

the case for failure to state a claim upon which relief can be granted. Dkt. No.
14. Judge Duffin explained to the plaintiff that if he wanted to object to the
report and recommendation, he had to file that objection within fourteen days
of service; he also explained that if the plaintiff failed to timely file an objection,
he would waive his right to appeal. Dkt. No. 14 at 10. The plaintiff has not filed
an objection, and more than fourteen days have passed.
After reviewing a magistrate judge’s report and recommendation, a
district court judge may accept, reject or modify, in whole or in part, the
findings or recommendations the magistrate judge made in the report. Fed. R.
Civ. P. 72(b). If a party objects to any part of the report, the district court must
review those parts of the report de novo (in the first instance, without giving
deference to the magistrate judge’s findings). Id. “If no objection or only partial
objection is made, the district court judge reviews those unobjected portions for
clear error.” Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir.
1999).
As the court indicated, it has not received any objection from the
plaintiff. The court has reviewed Judge Duffin’s report, and finds that neither
the report nor the recommendation are clearly erroneous. Of the four
defendants that the plaintiff has sued, only one of them—Racine County—is
the kind of entity that may be sued under 42 U.S.C. §1983. And, because
Racine County is a municipality, and not a person, he can make a §1983 claim
against the County only if he identifies some policy or custom that caused the
injury he complains of. The plaintiff’s complaint does not identify a policy or
2

custom of Racine County that injured the plaintiff. Rather, the complaint
demonstrates that the plaintiff’s brother caused the plaintiff’s injury, because
he gave the plaintiff’s name when he was arrested, and was convicted under
the plaintiff’s name. The plaintiff alleges that someone figured out while his
brother was being fingerprinted that his brother had given a false name, but
didn’t correct the record, and that this resulted in his being arrested for driving
with a revoked license when he hadn’t done so. He alleges that he made
various attempts to correct the error with the various defendants that he has
named, but that none of them corrected it. Even accepting all of this as true,
the plaintiff does not allege that these injuries were the result of a Racine
County policy or custom. Recognizing that the plaintiff might have a viable
claim against a particular individual person, Judge Duffin also considered
whether to allow him to file a third amended complaint to name such an
individual, but concluded that he would not be able to state a constitutional
cause of action against an individual defendant, either. The court agrees.
The court ADOPTS Magistrate Judge Duffin’s July 26, 2017 report and
recommendation (dkt. no. 14), and ORDERS that this case is DISMISSED for
failure to state a claim upon which relief can be granted.
Dated in Milwaukee, Wisconsin this 28th day of August, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

3