Carter v. Kuspa et al

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 8/31/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Defendant Milwaukee Police Department DISMISSED from action. Plaintiff PERMITTED to proceed on Fou rth Amendment claims: for the unreasonable manner of the 2/16/2016 search; for falsifying statements in the affidavit underlying the search warrant; and for submitting the search warrant application knowing the affidavit contained falsehoods. Agenc y having custody of Plaintiff to COLLECT from his prison trust account the balance of the filing fee in accordance with this Order. Action STAYED pending conclusion of Plaintiff's state court criminal proceedings; Plaintiff to provide monthly status updates and to notify the Court when and how those proceedings are concluded. Clerk of Court DIRECTED to administratively close this action. (cc: all counsel, via mail to Marvin L. Carter at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARVIN L. CARTER,
Plaintiff,

v.

JOHN KUSPA, WILLIAM J.
ESQUEDA, LAURA A. CRIVELLO,
and MILWAUKEE POLICE
DEPARTMENT,

Case No. 16-CV-1430-JPS

ORDER

Defendants.
Plaintiff, who is incarcerated at Dodge Correctional Institution, 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 Plaintiff’s
motion to proceed in forma pauperis. (Docket #2). Plaintiff has been assessed
and has paid an initial partial filing fee of $15.33. 28 U.S.C. § 1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. Id. § 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.
Id. § 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 Atl. 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. “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. The complaint allegations “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555;
Christopher, 384 F.3d at 881.
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
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supported by factual allegations. Id. If there are well-pleaded factual
allegations, the Court must then “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); 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)).
Plaintiff alleges that during the afternoon of February 16, 2016,
masked police officers dressed in Army fatigues entered his home in
Milwaukee. (Docket #1 at 2). When they entered the house, he, a woman,
and her children were all sleeping inside. Id. The woman awoke at the
sound of the officers moving around the house, and she alerted Plaintiff. Id.
at 2–3. A man then came to their bedroom door and yelled for them to come
out. Id. at 3. Plaintiff and the woman exited the bedroom and found two or
three masked police officers pointing guns at them. Id. The officers took
them to the living room along with the children. Id. at 4.
Plaintiff was then handcuffed. Id. Plaintiff inquired why the officers
were there and why he was being handcuffed, and he was told that
someone else would come to speak with him. Id. About five minutes later,
Detectives John Kuspa (“Kuspa”) and William Esqueda (“Esqueda”)
entered the living room, and Plaintiff repeated his questions. Id. He also
asked whether the officers had a search warrant. Id. Kuspa responded that
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they did have a warrant, and they retrieved it. Id. at 4–5. However, Kuspa
only read the warrant to Plaintiff and did not provide him a copy nor show
him the copy in his hands. Id. at 5. After he read it, Kuspa placed the warrant
face-down on a table in the living room. Id.
Kuspa then stated to Plaintiff, “You know why we are here,” to
which Plaintiff responded in the negative. Id. Kuspa went on, accusing
Plaintiff of making six controlled drug buys, at least one of which occurred
at the home. Id. Plaintiff denied any wrongdoing. Id. Plaintiff was thereafter
taken to the Milwaukee County Jail and charged by criminal complaint
with four counts: (1) possession with intent to distribute cocaine; (2)
possession with intent to distribute heroin; (3) possession of a firearm by a
felon; (4) possession with intent to deliver narcotics. Id. Those charges were
brought in Milwaukee County Circuit Court in case number 2016-CF-762.
Publicly available records show that Plaintiff went to trial on these
charges from February 6 to 8, 2017. On February 8, Plaintiff pleaded guilty
to counts two and three of the criminal complaint—the heroin and firearm
charges. As a result, the Milwaukee County Circuit Court adjudged him
guilty of those offenses and ordered the entry of a judgment of conviction
as to those counts. Counts one and four were dismissed on the state’s
motion. Sentencing was held on July 20, 2017, and Plaintiff was sentenced
to a total of sixteen years of incarceration, followed by a term of supervised
release. Plaintiff filed a notice of intent to pursue post-conviction relief on
July 25, 2017.
In the present case, Plaintiff requests the following items of relief.
First, he asks that the Court order the Assistant District Attorney assigned
to his case, Laura Crivello (“Crivello”), as well as Kuspa and Esqueda, to
produce certain information relevant to the criminal proceedings, including
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the dates of the alleged drug buys, information about the confidential
informer who participated in investigating Plaintiff’s offenses, and copies
of DNA testing results. Id. at 6. Plaintiff also requests an order from the
Court directing the police officers involved in the February 16, 2016 search
to draft written reports about the search. Id. He states that he needs this
material so that he and his criminal defense attorney (who has not entered
on his behalf in this case) can prepare his defense. Id. Plaintiff further
requests that the Court order Crivello to drop the charges in case number
2016-CF-762 “because she knows that [Kuspa] and [Esqueda] acted in bad
faith by falsifying the affidavit to attain a search warrant,” which she herself
then signed as part of the warrant application. Id. at 8. Finally, Plaintiff
prays for compensatory and punitive damages to recompense the time he
has spent incarcerated in connection with these criminal proceedings. Id. at
7.
Plaintiff’s allegations leave much to be desired. He does not connect
his factual allegations to any legal claim, other than to say that Defendants’
actions were wrongful. From the Court’s review of the complaint, it appears
that Plaintiff may be attempting to raise a claim under 42 U.S.C. § 1983 for
violation of his Fourth Amendment rights. The conduct relevant to such a
claim might be: (1) the unreasonable manner of the February 16, 2016
search, including the officers’ failure to knock and announce their presence
before entering the home, as well as brandishing their firearms without
need; (2) Kuspa and Esqueda’s decision to falsify statements in the affidavit
underlying the search warrant; and (3) Crivello’s decision to submit the
search warrant application knowing that the supporting affidavit contained
fabrications. The Court will address each claim in turn.

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As to each, the Court will need to consider an additional threshold
issue in light of the parallel criminal proceedings. These claims may be
barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), which holds that a
claim for damages may not be pursued if its success would necessarily
imply the invalidity of the criminal conviction or sentence. However, Heck
does not automatically preclude Fourth Amendment claims related to
conduct underlying a conviction. Wallace v. Kato, 549 U.S. 384, 394 (2007);
Nelson v. Campbell, 541 U.S. 637, 647 (2004). As long as the plaintiff’s claims
do not impugn the validity of his conviction or sentence, courts can
entertain Section 1983 suits based on police investigative conduct that
violates the Fourth Amendment. Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir.
2008); Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998); Simpson v.
Rowan, 73 F.3d 134, 136 (7th Cir. 1995) (“Because an illegal search or arrest
may be followed by a valid conviction, a conviction generally need not be
set aside in order for a plaintiff to pursue a § 1983 claim under the Fourth
Amendment.”).
First, the Court, appreciative of the low bar required of pro se
complaints at the screening stage, finds that Plaintiff may proceed on his
claim as to the allegedly unreasonable manner of the officers’ search of his
home on February 16, 2016, including their failure to comply with the
knock-and-announce rule and their decision to brandish their weapons. See
Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (knock-and-announce rule);
Bell v. Wolfish, 441 U.S. 520, 560 (1979) (searches must be conducted in a
reasonable manner and not in “an abusive fashion”). Such a claim would
not be Heck-barred, as the officers’ conduct would not require exclusion of
the evidence obtained as a result of the search and would therefore not
necessarily imply the invalidity of the conviction.
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Second, the claim with respect to Kuspa and Esqueda’s false
statements is likely unripe, but the Court will allow it to proceed on the
present allegations. A warrant request violates the Fourth Amendment if
the requesting officer knowingly, intentionally, or with reckless disregard
for the truth, makes false statements in requesting the warrant and the false
statements were necessary to the determination that a warrant should issue.
Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003); Franks v. Delaware, 438 U.S.
154, 155–56 (1978). Thus, even if a criminal defendant can demonstrate that
the attesting officer made a false statement (or omitted a material fact), the
court must nevertheless consider whether the content of the affidavit,
setting aside the false material (or including the omitted material), is
sufficient to establish probable cause. Franks, 438 U.S. at 156. If it is not, the
search warrant must be voided and the fruits of the search excluded. Id.
The complaint does not explain whether there were narcotics
recovered from the home that were used as evidence to support the charges
being litigated in state court; assume for a moment that this is so.1 If Kuspa
and Esqueda’s alleged false statements are not sufficient to result in voiding
the warrant and excluding the evidence obtained with it during the
criminal proceedings, then Plaintiff will have suffered no injury as a result
of the false statements and he does not have a constitutional claim. If the
alleged false statements are sufficient to result in voiding the warrant and
excluding the evidence obtained with it, then Plaintiff’s claim is not ripe
until the conviction which resulted from the evidence obtained with that

This is especially hard to assume with confidence, since Plaintiff only
pleaded guilty to the heroin and firearm charges in the criminal complaint.
Without more information as to what happened during his criminal trial, it is
difficult to surmise what evidence was admitted and what role it played in his
ultimate conviction.
1

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warrant is overturned or set aside. This is because a claim for damages may
not be pursued if its success would necessarily imply the invalidity of the
criminal conviction or sentence, and invalidating the February 16, 2016
search would destroy the state’s evidence and thereby invalidate the
conviction. On this uncertainty, and in light of the generous standard of
review and construction given to pro se pleadings, the Court will permit this
claim to proceed at this time.
Finally, there is the state prosecutor, Crivello, who allegedly
submitted the search warrant application to a court knowing that it
contained Kuspa and Esqueda’s false statements. In many instances, a
prosecutor enjoys absolute immunity from suit, but only insofar as she is
“act[ing] within the scope of [her] prosecutorial duties.” Imbler v. Pachtman,
424 U.S. 409, 420 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). For
instance, immunity encompasses “the professional evaluation of the
evidence assembled by the police and appropriate preparation for its
presentation at trial or before a grand jury after a decision to seek
indictment has been made.” Imbler, 424 U.S. at 420. However, it does not
protect most pre-arrest investigatory conduct. Fields v. Wharrie, 740 F.3d
1107, 1111 (7th Cir. 2014); Bianchi v. McQueen, 818 F.3d 309, 318 (7th Cir.
2016).
At this stage, the Court cannot and does not decide whether
Crivello’s conduct falls outside the bounds of absolute immunity. Of
particular note is Plaintiff’s failure to allege that Crivello herself fabricated
any information, rather than simply filing an affidavit she knew contained
falsehoods. Yet the Court, taking Plaintiff’s allegations as true, finds that he

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should be permitted to proceed past screening on his claim against Crivello
and that she may then raise any defenses she believes are appropriate.2
In closing, the Court also observes that the final defendant, the
Milwaukee Police Department, must be dismissed. The police department
cannot be liable for its officers’ constitutional violations by pure operation
of respondeat superior; instead, Plaintiff must allege that it had a policy or
custom which was the “moving force” behind their constitutional
violations. See Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010); See City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). Plaintiff does not even
mention the police department in his factual allegations, much less allege
that it had a policy which permitted Kuspa and Esqueda’s misconduct to
occur.
Despite the Court’s findings that Plaintiff may proceed on the
various Fourth Amendment claims detailed above, it must nevertheless put
a temporary halt to these proceedings. The Court will abstain from hearing
Plaintiff’s damages claims while his criminal appeal is ongoing, pursuant
to the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 53 (1971);
Simpson, 73 F.3d at 134, 137 (7th Cir. 1995) (“[A]bsent extraordinary
circumstances federal courts should abstain from enjoining ongoing state
criminal proceedings.”). The Seventh Circuit has counseled that a judgment
on the convict’s federal damages action before the conclusion of his direct
appeal “might undermine the supreme court’s consideration of [the
convict’s] constitutional defenses to his criminal conviction.” Simpson, 73

As with Kuspa and Esqueda, if the false statements Crivello allegedly
permitted to be included in the search warrant affidavit she filed can be excised
without undermining the conviction, then Plaintiff will have no constitutional
claim to bring in this Court.
2

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F.3d at 138. As a result, the Court of Appeals instructs that district courts
should abstain from hearing such claims “while the case works its way
through the state appellate process.” Id.
Simpson requires first that the Court dismiss Plaintiff’s request for an
order directing Defendants to produce certain items and documents to help
him prepare his defense. Such a claim is in the nature of injunctive relief,
the grant of which would violate the principles animating Younger
abstention. Id. at 137. Second, the Court must stay the remaining claim for
damages pending final disposition of the criminal proceedings. Id. at 139.
For the reasons stated above, the Court finds that Plaintiff may
proceed on the following claims: (1) a Fourth Amendment claim for the
unreasonable manner of the February 16, 2016 search; (2) a Fourth
Amendment claim for Kuspa and Esqueda’s conduct in falsifying
statements in the affidavit underlying the search warrant; and (3) a Fourth
Amendment claim for Crivello’s submission of the search warrant
application knowing that the supporting affidavit contained falsehoods.
However, as the Court has explained, it must stay this action
pending final resolution of Plaintiff’s appeal of his conviction in Wisconsin
state court. See Wallace, 549 U.S. at 393–94 (“If a plaintiff files a false-arrest
claim before he has been convicted . . ., it is within the power of the district
court, and in accord with common practice, to stay the civil action until the
criminal case . . . is ended. . . . If the plaintiff is ultimately convicted, and if
the stayed civil suit would impugn that conviction, Heck will require
dismissal; otherwise, the civil action will proceed, absent some other bar to
suit.”). This matter will be administratively closed in the interim. Plaintiff
must provide updates on the status of his criminal case every thirty (30)
days. If he does not, this matter will be dismissed. Plaintiff must further
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notify the Court upon the conclusion of his criminal appeal and/or postconviction proceedings.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Milwaukee Police
Department be and the same is hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the 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 Plaintiff’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. If Plaintiff is transferred to
another institution, county, state, or federal, the transferring institution
shall forward a copy of this Order along with Plaintiff’s remaining balance
to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined;
IT IS FURTHER ORDERED that this action be and the same is
hereby STAYED pending the conclusion of Plaintiff’s state court criminal
proceedings;
IT IS FURTHER ORDERED that Plaintiff shall provide updates on
the status of those proceedings on or before the last day of each month;

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IT IS FURTHER ORDERED that Plaintiff shall notify the Court
when those proceedings have concluded, and the manner in which they
were concluded; and
IT IS FURTHER ORDERED that the Clerk of the Court shall
administratively close this action.
Dated at Milwaukee, Wisconsin, this 31st day of August, 2017.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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