Gullikson v. City of Milwaukee Municipality et al

Filing 12

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 8/2/2017. Case DISMISSED under 28 USC §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; clerk of court to document that inmate has incurred a "strike" under 28 USC §1915(g). Agency having custody of plaintiff to collect $343.49 balance of filing fee from his prison trust account in accordance with 28 USC §1915(b)(2). (cc: all counsel, via mail to Nicholas Gullikson and Warden at Kenosha Correctional Center, Corey Finkelmeyer Asst. AG)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
NICHOLAS GULLIKSON,
Plaintiff,
v.

Case No. 17-cv-105-pp

CITY OF MILWAUKEE MUNICIPALITY, and
COUNTY OF MILWAUKEE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING AND DISMISSING THE AMENDED
COMPLAINT (DKT. NO. 11)
______________________________________________________________________________
On January 23, 2017, the plaintiff, Nicholas Gullikson, filed a complaint
seeking return of $1,612 that was confiscated from his residence during a drug
traffic raid. Dkt No. 1. Magistrate Judge William Duffin screened the plaintiff’s
complaint, and explained that a district attorney is not required to institute
forfeiture proceedings in Wisconsin for property derived from the commission of
any crime. Dkt. No. 10 at 8. Instead, a person claiming the right to such
property can initiate return of that property through procedures set forth in
Wis. Stat. §968.20. Id.
Judge Duffin then instructed the plaintiff to file an amended complaint:
(1) outlining the steps he took to initiate return of his property under Wis. Stat.
§968.20, and (2) describing how the state’s procedure under §968.20 was
constitutionally inadequate. Id. at 10. This matter comes before the court for
screening of the amended complaint. Dkt. No. 11.
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I.

SCREENING OF THE PLAINTIFF’S AMENDED COMPLAINT
A.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts 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
may dismiss a case, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(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). The complaint need not plead specific
facts, and need only provide “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)). “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
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Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to the
assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives 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)).
B.

Facts Alleged in the Amended Complaint

On September 23, 2014, the Wisconsin High Intensity Drug Trafficking
Area (HIDTA) raided the plaintiff’s home. Dkt. No. 11, ¶ 3. During the raid,
HIDTA seized $1,612 from the plaintiff’s residence. Id. According to the
plaintiff, the confiscated money was not related to drug trafficking and “did not
bare any of the same serial numbers as the money used in the control buy that
justified the raid.” Id., ¶¶ 6- 7.
On December 23, 2017, the plaintiff filed a motion in the Milwaukee
County Circuit Court, seeking return of the money. Id., ¶ 8. A Milwaukee
County staff attorney replied that the motion could not be filed because the
plaintiff had not served all of the interested parties. Id. It is unclear what
actions, if any, the plaintiff took after receiving this letter.

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C.

Legal Analysis of Alleged Facts

To state a claim under 42 U.S.C. §1983, the 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)).
The court will not allow the plaintiff to proceed on his claims for several
reasons. First, §1983 allows a plaintiff to sue a “person” who violates the
plaintiff’s civil rights while acting under color of state law. The “City of
Milwaukee Municipality” and “Milwaukee County” are not a “persons” in the
meaning of §1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 7071 (1989); see also Buchanan v. Kenosha, 57 Fed.Supp.2d 675, 677-78 (E.D.
Wis. 1999). The plaintiff cannot sue these two entities under §1983.
Second, there are state procedures available to the plaintiff to seek the
return of his property. The Milwaukee County staff attorneys told the plaintiff
how to cure the deficiency in his state court filing: he had to serve the district
attorney and “interested” parties. The plaintiff failed to follow these
instructions, and instead filed this lawsuit in federal court, apparently trying to
get around the appropriate state court procedures. That is not an appropriate
reason for filing a §1983 case in federal court.
Third, the plaintiff appears to believe that the state court procedure—
Wis. Stat. §968.20—violates his right to due process, because the “burden
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[shouldn’t] fall on the plaintiff to request the property taken illegally.” Dkt. No.
11, ¶ 9. Instead, he argues, “the prosecutor should have established the lawful
taking of the property.” Id. Wis. Stat. §968.20 is procedurally identical to
Federal Rule of Criminal Procedure 41(g), which allows individuals to seek
return of property seized as a result of the commission of a federal crime. No
court has held Rule 41(g) unconstitutional. Both §968.20 and Rule 41(g)
provide plaintiffs with “process” to remedy deprivation of property. The plaintiff
does not like those processes, and has not used them. But because they do
provide him with process, they are not unconstitutional.
The Court of Appeals for the Seventh Circuit has considered whether a
plaintiff can get around Wis. Stat. §968.20 by filing in federal court. The court
held that a plaintiff may go directly to federal court, rather than following the
state’s procedures, only when the plaintiff seeks return of property based on
lack of probable cause to confiscate the property. See Supreme Video, Inc. v.
Schauz, 15 F.3d 1435, 1443 (7th Cir. 1994). The plaintiff’s property was taken
in a valid drug raid (the plaintiff states that there was a “control[led] buy” that
“justified” the raid), and he does not allege that there was no probable cause to
seize the property. Because the plaintiff has not alleged a lack of probable
cause, he cannot circumvent the state property return process by filing a
§1983 claim in federal court. The court must dismiss the case for failure to
state a claim.

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II.

CONCLUSION
The court ORDERS that this case is DISMISSED under 28

U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. The Clerk of
Court shall enter judgment accordingly.
The court ORDERS that the Clerk of Court document that this inmate
has incurred a “strike” under 28 U.S.C. § 1915(g).
The court ORDERS the agency having custody of the plaintiff to collect
from his institution trust account the $343.49 balance of the filing fee by
collecting monthly payments from the 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 forward 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 the plaintiff is transferred to another
institution, county, state, or federal, the transferring institution shall forward a
copy of this Order along with the plaintiff's remaining balance to the receiving
institution.
The court will send a copy of this order to Corey F. Finkelmeyer,
Assistant Attorney General, Wisconsin Department of Justice, P.O. Box 7857,
Madison, Wisconsin, 53707-7857.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
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See Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 2nd day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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