Griffin v. Zientek et al

Filing 10

ORDER DISMISSING CASE signed by Judge J P Stadtmueller on 12/1/2016. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Case DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; Clerk of Court to document that inmate brought action dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); Clerk of Court to document that inmate has incurred a strike under 28 U .S.C. §1915(g); Wisconsin DOC to collect balance of filing fee from plaintiff's prison trust account in accordance with 28 U.S.C. § 1915(b)(2); Court certifies any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless plaintiff offers bona fide arguments supporting his appeal. (cc: all counsel, via mail to Gabriel Griffin; Dodge County Jail Adminstrator; Corey Finkelmeyer-Wis. Dept. of Justice)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL GRIFFIN,
Plaintiff,
v.

Case No. 16-CV-1416-JPS

JEFFERY ZIENTEK and SCOTT
MARLOW,
Defendants.

ORDER

The plaintiff, who is incarcerated at Dodge County Detention Facility,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the Court on the
plaintiff’s motion to proceed in forma pauperis. (Docket #2). The plaintiff has
been assessed and paid an initial partial filing fee of $20.00. 28 U.S.C. §
1915(b)(1).
The Court is required 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 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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);
Christopher, 384 F.3d at 881.

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In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings that,
because they are 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)).
Defendant Jeffery Zientek (“Zientek”) is a police officer with the West
Allis Police Department. (Docket #1 at 2). Defendant Scott J. Marlow
(“Marlow”) is an agent with the Drug Enforcement Administration in
Milwaukee. Id. On November 17, 2015, law enforcement executed a search
warrant on a residence, and the plaintiff was arrested there. Id. He was
informed he that he was being charged with a state and a federal crimes. Id.
at 2–3. He was then taken to the West Allis jail. Id. The plaintiff claims that
both defendants attempted to question him, but he invoked his right to
silence. Id. The plaintiff was held in custody from November 17 to December

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18, 2015. Id. at 3. He alleges that during this month-long period, he was never
brought before a judicial officer for a probable cause determination. Id. at 3.
He further claims that the delay was devised by law enforcement to give
them time to gather additional evidence against him. Id. The plaintiff alleges
that he was either told, or knows for a fact, that the purported state charge
was for a state parole violation. Id. at 34. The federal charges were related to
drug and gun possession. See id. at 3. The plaintiff complains that his period
of detention prior to a probable cause determination exceeded the time
permitted by the Fourth and Fourteenth Amendments. Id. at 4.
The Court has been unable to locate any state court records relating
to an alleged violation of the terms of the plaintiff’s parole. The exhibits
submitted with his complaint reveal that the defendants, after learning that
the plaintiff was on parole, contacted the state probation and parole
commission, which entered a detainer order against him. In reviewing the
docket for the plaintiff’s federal criminal case, the Court has determined that
an indictment was returned on December 8, 2015, charging the plaintiff with
being a felon in possession of a firearm and cocaine distribution. U.S. v.
Gabriel Griffin, 15-CR-238-2 (Docket #9). An arrest warrant was issued the
next day. On December 11, 2015, Magistrate Judge Nancy Joseph issued a
writ of habeas corpus ad prosequendum for the plaintiff, who was being held
at the Milwaukee Secure Detention Facility, to secure his appearance for his
arraignment. Id. at (Docket #13). The plaintiff was arraigned on December 18,
2015. Id. at (Docket #25). The matter remains pending before Magistrate
Joseph and Judge Lynn Adelman.

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The plaintiff’s two claims, one for violation of the Fourth Amendment
and one for violation of the Fourteenth Amendment, are very different
although they rest on the same facts. The Fourth Amendment claim is based
on the alleged failure of the defendants to bring the plaintiff promptly before
a neutral magistrate for a probable cause determination after his warrantless
arrest on November 17, 2015 for federal offenses. Typically, a person arrested
without a warrant from a magistrate is entitled to (1) a hearing (2) before a
judicial officer where a wrong identification could be addressed (3)
“promptly after arrest.” See Gerstein v. Pugh, 420 U.S. 103, 125 (1975). Under
this promptness standard, “judicial determinations of probable cause within
48 hours of arrest will, as a general matter,” suffice unless the prisoner can
prove unreasonable delay. County of Riverside v. McLaughlin, 500 U.S. 44,
56–57 (1991). If the delay exceeds 48 hours, the government bears the burden
to prove that the delay was justified. Id. Of course, detention based on a
grand jury’s indictment—itself a finding of probable cause—supplants the
need for a prompt preliminary hearing before a judicial officer. Gerstein, 420
U.S. at 117 n.19.
The second claim, for violation of the Fourteenth Amendment, is
based on the defendants’ failure to ensure that the plaintiff was provided a
prompt preliminary hearing under Morrissey on his alleged state parole
violations. The constitutional protections afforded to parolees under the
Fourteenth Amendment are far less than those given to arrestees under the
Fourth Amendment. In cases involving parolees arrested for alleged parole
violations, a preliminary hearing “to determine whether there is probable
cause” to detain the parolee need be held only “as promptly as convenient

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after arrest while information is fresh and sources are available.” Morrissey
v. Brewer, 408 U.S. 471, 485 (1972). Indeed, in contrast to the requirements of
Gerstein and McLaughlin, for parolees “[d]elays as long as 24 days between
the arrest and even the preliminary hearing are constitutionally permissible,
even without any showing of emergency or extraordinary circumstance.”
Atkins v. City of Chicago, 631 F.3d 823, 834 (7th Cir. 2011) (Hamilton, J.,
concurring) (citing Faheem–El v. Klincar, 841 F.2d 712, 714–15, 723 (7th Cir.
banc 1988)). “The reason we tolerate the slower and different procedures for
parolees is precisely because they are parolees. They have already been
convicted of a crime through the full processes of the criminal law. Their
interest in liberty is much more limited than for the vast majority of citizens
who are not on parole.” Atkins, 631 F.3d at 834 (Hamilton, J., concurring).
While the probable cause determination “should be made by someone
not directly involved in the case,” the hearing officer “need not be a [neutral
and detached] judicial officer” and may be an administrative official such as
a parole officer. Morrissey, 408 U.S. at 485–86. However, Morrissey demands
that, at a minimum, the plaintiff be afforded notice of the preliminary hearing
and be permitted to speak and present evidence on his behalf. See id. at 487.
Here, the plaintiff’s allegations establish that he was detained from the
day of his arrest on November 17, 2015 until at least December 18, 2015.
There is no allegation that he received a preliminary hearing compliant with
the requirements of Morrissey or Gerstein during this time. However, as of
December 8, 2015, a federal grand jury returned an indictment against him,
thereby rendering his detention between December 8 and December 18
constitutionally permissible. Gerstein, 420 U.S. at 117 n.19. Furthermore, the

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plaintiff’s 21-day detention from November 17 until December 8 was
permissible based on the alleged state parole violations. Although the
plaintiff was not afforded a Morrissey hearing, the Seventh Circuit has held
that periods longer than 21 days are allowed between a parolee’s arrest and
his preliminary hearing on alleged parole violations. Faheem–El, 841 F.2d at
714–15. Thus, the plaintiff was lawfully held in state custody on the alleged
parole violations during the period from November 17 to December 8, 2015.
As a result, all of the time which plaintiff alleges comprised his unlawful
detention is in fact justified. His constitutional claims must therefore be
dismissed.
Accordingly,
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby is GRANTED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has brought an action that was dismissed for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1);
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. §1915(g);
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust account in an amount equal to 20%

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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 payments
shall be clearly identified by the case name and number assigned to this
action;
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly; and
IT IS FURTHER ORDERED that copies of this order be sent to the
warden of the institution where the inmate is confined and to Corey F.
Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice,
P.O. Box 7857, Madison, Wisconsin, 53707-7857.
THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the
plaintiff offers bona fide arguments supporting his appeal.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2016.

BY THE COURT:
s/ J. P. Stadtmueller
J.P. Stadtmueller
U.S. District Judge

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