Harris v. Milwaukee Police Department

Filing 6

ORDER signed by Judge Pamela Pepper on 8/28/2018. Plaintiff to file new request to proceed without prepayment of filing fee and amended complaint by end of day 9/28/2018; failure to file by due date will result in dismissal for failure to prosecute. (cc: all counsel, via mail to Melissa Harris, with EDWI Guide and Complaint form for non-prisoner)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MELISSA HARRIS,
Plaintiff,
v.

Case No. 17-cv-837-pp

MILWAUKEE POLICE DEPARTMENT,
Defendant.

ORDER REQUIRING THE PLAINTIFF TO FILE A NEW REQUEST TO
PROCEED WITHOUT PREPAYING THE FILING FEE AND AN AMENDED
COMPLAINT BY THE END OF THE DAY ON FRIDAY, SEPTEMBER 28, 2018

On June 15, 2017, the plaintiff (who is representing herself) filed
complaint alleging that the defendant Milwaukee Police Department unlawfully
arrested her. Dkt. No. 1. She also filed a motion to proceed without prepaying
the filing fee. Dkt. No. 2. Because of its heavy case load, the court has taken
much, much longer than it should have to review the complaint and the
motion. The court extends its apologies to the plaintiff, and hopes that this
order will get the case moving.
I.

Plaintiff’s Motion to Proceed Without Prepayment of the Filing Fee
(Dkt. No. 2)
The court may allow someone to proceed without pre-paying the filing

fees if it finds that (1) the person is unable to pay the filing fee; and (2) the case
is not frivolous nor malicious, does not fail to state a claim on which relief may

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be granted, and does not seek monetary relief against a defendant that is
immune from such relief. 28 U.S.C. §§1915(a) and (e)(2).
A.

Plaintiff’s Ability to Pay the Filing Fee

The plaintiff is not a prisoner. In asking the court to allow her to proceed
without paying the filing fee, however, she used the form that prisoners use
when they ask to proceed without prepaying the filing fee. This makes a
difference. The law requires prisoners to pay the filing fee; the court cannot
waive a filing fee for a prisoner. The court has the ability, however, to waive or
reduce the filing fee for people who are not in custody, if the court finds that
the person doesn’t have the ability to pay, and that the lawsuit isn’t frivolous.
Because the court must determine whether someone has the ability to
pay the filing fee, the information requested in the non-prisoner form is different
from the information requested in the form the plaintiff filled out. This means
that the court does not have the information it needs to decide whether this
plaintiff is able to pay the filing fee.
The plaintiff did provide the court with some of the information it needs.
She stated that she has two dependent children to whom she provides $1,000
in monthly support. She does not own a car, but owns her own home valued at
approximately $23,500. Dkt. No. 2 at 2. The plaintiff claims that she has no
cash, checking or savings accounts. The prisoner form, however, does not have
a space for the plaintiff to list her monthly income; the plaintiff simply stated
that she is a substitute teacher in the Milwaukee Public Schools and that she
has “no income during summer months June, July, August.” The prisoner form
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does not have space for the plaintiff to provide her monthly expenses, or
explain whether she is married, or for other information the court needs.
The court cannot rule on the plaintiff’s request until it gets all the
information it needs. The court is including with this order the proper form,
titled “Non-Prisoner Request to Proceed in District Court Without Prepaying the
Filing Fee.” If the plaintiff still wants the court to reduce or waive the filing fee,
she will need to complete this form and file it with the clerk’s office.
B.

Screening

After she files the right form, even if the court concludes that the plaintiff
does not have the ability to pay the filing fee, it still must dismiss a complaint if
a plaintiff raises 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). For
this reason, district courts “screen” complaints filed by self-represented
plaintiffs to determine whether the complaint must be dismissed under these
standards.
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). The court may 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

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construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
To state a claim under the federal notice pleading system, a 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). A plaintiff does not need to plead
every fact supporting his claims; he only must “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)). That said, a complaint that offers only “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). Rather, 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 follow the
principles set forth in Twombly. First, the court must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
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allegations, courts must “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
1.

The Substance of the Plaintiff’s Complaint

The plaintiff also used the court’s prisoner form complaint. Dkt. No. 1.
There is a different form that people who are not in custody use. Nonetheless,
the plaintiff did explain her allegations on the form.
On the first page of the complaint, where a person explains who the
person is suing, the plaintiff listed “Milwaukee Police Department.” Dkt. No. 1
at 1. On the second page, in the space where the plaintiff must explain her
claim, the plaintiff says that “Officer Petoroich from district 1 Milwaukee
County Police Department” violated her rights. Id. at 2. She alleges that officer
Petoroich unlawfully arrested her, and refused to get “Sergarent” to help her.
Id. She says that the sergeant who did show up at the scene “lied and stated he
work for Mayor Tom [B]arrett, who also came outside but never spoke to [the
plaintiff].” Id. She alleges that this unnamed sergeant “covered up for unlawful
arrest and stated I resisted arrest and obstructed a officer.” Id. The plaintiff
says that a case was filed on January 8, 2012; she provides “Case
#2012CM000117.”
The plaintiff alleges that at the time of these events, she was a single
mother in college full-time and was working at J.C. Penny. Id. at 3. She says
that she lost her job, and that her child was left with a sitter for three days
while she was in prison for no reason; she says she does not know why she
was arrested. Id. at 2.
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The plaintiff then alleges that “the officer was racist” because the officer
used multiple racial slurs during their interaction. Id. at 3. She states that she
“was oppressed by a officer and sergant [sic] because the color of my skin.” Id.
The plaintiff explains that “the same officer who was fired with pay, only to
appeal and return to work although he committed a crime he didn’t get in
trouble for.” Id.
For relief, the plaintiff asks the court to order an award of $500,000 and
to order the defendants to undergo human service courses and volunteer with
youth of color. Id. at 4.
It sounds as if the plaintiff is alleging that the officer and the sergeant
violated her civil rights by unlawfully arresting her because of her race. Section
1983 of Title 42 prohibits anyone acting under color of state law from denying
another person of that person’s rights under the Constitution or laws of the
United States. To state a claim for relief under 42 U.S.C. §1983, a plaintiff
must allege that the defendants: (1) deprived her of a right secured by the
Constitution or law of the United States; and (2) acted under color of state law.
Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) 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)).

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A claim of false arrest implicates the Fourth Amendment. See Dunaway
v. New York, 442 U.S. 200, 216 (1979). A claim of false imprisonment of the
kind the plaintiff alleges against the police also implicates the Fourth
Amendment. See, e.g., Wallace v. Kato, 549 U.S. 384 (2007); Guenther v.
Holmgreen, 738 F.2d 879, 882 (7th Cir. 1984). The plaintiff also may be trying
to raise a claim under the Equal Protection Clause of the Fourteenth
Amendment, given her belief that officers arrested her and detained her
because of her race.
2.

Unlawful Arrest Claim

There are several problems with the plaintiff’s complaint. First, the only
defendant she has named in the title of her complaint is the Milwaukee Police
Department. Section 1983 allows a plaintiff to sue any “person” who, while
acting under color of state law, violates her civil rights. The Milwaukee Police
Department is not a person. A plaintiff can sue a government organization for
violations of §1983, if the person alleges sufficient facts to show that that
organization engaged in a custom or practice of civil rights violations. Monnell
v. Dep’t of Soc. Serv’s of City of New York, 436 U.S. 658 (1978). But the plaintiff
has not alleged any custom or practice; she has alleged that two police
department employees violated her rights on one occasion. Finally, even if the
plaintiff had alleged a custom-or-practice claim, the Milwaukee Police
Department would not be the appropriate defendant. A police department is
not a separate, suable entity; it is an arm of the City of Milwaukee. See, e.g.,
Norman v. City of Evanston, 176 F.App’x. 666, 667 (7th Cir. 2006); Averhart v.
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City of Chi., 114 Fed. App’x 246, 247 (7th Cir. 2004) (citations omitted); Kelly v.
City of Milwaukee, Case No. 12-C-0213, 2012 WL 1600446, at *3 (E.D. Wis.
May 4, 2012).
Second, the plaintiff has provided very few details about the allegedly
unlawful arrest. “In order to prevail in an unlawful arrest action, the plaintiff
must show a lack of probable cause.” Simmons v. Pryor, 26 F.3d 650, 654 (7th
Cir. 1993) (citation omitted). “Even malicious motives will not support a claim
of false arrest if probable cause exists.” Id. (citing Fernandez v. Perez, 937 F.2d
368, 371 (7th Cir. 1991)). See also, Mustafa v. City of Chi., 442 F.3d 544, 547
(7th Cir. 2006) (probable cause is a defense to false arrest claim “even where
the defendant officers allegedly acted upon a malicious motive (such as the
racism that Mustafa suggests motivated the defendants here).”) “Police officers
have probable cause to arrest an individual when ‘the facts and circumstances
within their knowledge and of which they have reasonably trustworthy
information are sufficient to warrant a prudent person in believing that the
suspect has committed’ an offense.” Id. (quoting Kelley v. Myler, 149 F.3d 641,
646 (7th Cir. 1998)).
The plaintiff’s complaint does not tell the court the date that the events
took place. She does not say where they took place. She does not say what she
was doing when she was arrested. She does not say what she was charged
with. As to Officer Petoroich, it is not clear what she believes he did to violate
her rights. She says, “unlawful arrest, refused to get Sergarent to help me.”
Dkt. No. 1 at 2. She says that she believes that “the officer” was racist because
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he said many ugly, racist things to her, and called her racist names, but she
does not identify who the officer was—was it Petoroich? Was it the sergeant?
She does not say whether she believes the sergeant violated her rights, and if
so, how.
The court tried to track down further details by looking up the case
number the plaintiff provided in her complaint. The court found several cases
with the case number 2012CM000117, but none of them were from Milwaukee
County and none of them involved the plaintiff. The court found a felony case
with that number in Milwaukee County—State v. Damario Lavell Page,
2012CF00017. That case did not involve the plaintiff. There is, however, a case
number 2013CM001832, State of Wisconsin v. Melissa France Harris, in which
the State of Wisconsin charged Melissa F. Harris with disorderly conduct and
obstructing an officer. The complaint was filed on April 23, 2013; on June 11,
2013, Melissa France Harris pled guilty to disorderly conduct and the
obstructing charge was dismissed and read in. State of Wisconsin v. Melissa
France Harris, Milwaukee County Case 2013CM001832, available at:
https://wcca.wiscourts.gov. The court has no idea whether the Melissa France
Harris charged in this Milwaukee County case is the same Melissa Harris as
the plaintiff in this case.
Third, the plaintiff indicated that the events about which she complains
gave rise to a charge issued in 2012. If that is true—or even if the charge was
issued in 2013—it means that the events the plaintiff describes took place at
least five years ago. False arrest is an intentional tort; under Wisconsin law, a
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person must file a claim for false arrest within three years after the cause of
action accrues. Wis. Stat. §893.57. The statute of limitations for a false arrest
claim that is followed by criminal proceedings accrues “at the time the claimant
becomes detained pursuant to legal process.” Wallace v. Kato, 549 U.S. 384,
397 (2007). If the events that the plaintiff describes took place in 2012 or 2013,
then, she may be too late to file a §1983 claim based on a false arrest claim
under the Fourth Amendment.
If the plaintiff wants to proceed on a Fourth Amendment claim for false
arrest, she will need to file an amended complaint (on the right form), and
provide the court with more information.
3.

False Imprisonment Claim

The few facts the plaintiff does allege could possibly give rise to a false
imprisonment claim. Under Wisconsin law, “[f]alse imprisonment has been
defined as the ‘“unlawful restraint by one person of the physical liberty of
another.”’” Stern v. Thompson & Coates, Ltd., 185 Wis.2d 220, 242 (Wis. 1994)
(citations omitted). “One is subject to liability for false imprisonment if that
person acts to cause a false arrest, i.e., an arrest made without legal
authority.” Id. False imprisonment can be a subset of false arrest.
Again, however, the plaintiff has not provided the court with enough
information for the court to determine whether she has stated a false
imprisonment claim. And the statute of limitations period for false
imprisonment claims is also three years, accruing “when the false
imprisonment ends.” Kato, 549 U.S. at 384. So if the plaintiff was released
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from custody more than three years before July 20, 2018—the day she filed her
federal complaint—she may have a statute of limitations problem.
The court will give the plaintiff a chance to amend her claim to provide
additional details.
4.

Equal Protection Claim

The Equal Protection Clause provides that no state shall “deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST.
AMEND

XIV. This means that state actors must treat all similarly-situated

persons in a similar manner. City of Cleburne v. Cleburne Living Center, 473
U.S. 432, 439 (1985).
To establish a prima facie case of discrimination under
the equal protection clause, [plaintiff is] required to
show that [she] is a member of a protected class, that
[she] is otherwise similarly situated to members of the
unprotected class, and that [she] was treated
differently from members of the unprotected class.
Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005).
The plaintiff’s complaint does not provide enough information for the
court to determine whether she has alleged an equal protection claim. She
states:
I believe in my heart the Officer was racist because he called me all
kind of “black bitches, black slut shut up”, “Stupid niger there is
no one here to help you”, There is no lietant dumb little bitch”, It’s
what I say go.” I was scared and terrified because I use to believe
in the Justice System, I wasn’t protected and I never was a
criminal. I was opressed by a officer and sergant because the color
of my skin.
Dkt. No. 1 at 3.

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These allegations indicate that someone one—an officer—treated the
plaintiff very badly. But she does not say who treated her badly—was it Officer
Petoroich? The sergeant? While the court can assume that perhaps the plaintiff
is African American, or a person of color, she does not say so, and does not
allege that she is a member of a protected class. She does not described nonclass members who were treated differently. And again, she does not say when
these events took place, or where.
The court will give the plaintiff the chance to amend her complaint to
provide additional details.
II.

Conclusion
The court ORDERS that the plaintiff shall file a new request to proceed

without prepaying the filing fee, on the form the court has provided, in time for
the court to receive it by the end of the day on Friday, September 28, 2018.
The court ORDERS that, if the plaintiff chooses to file an amended
complaint, she must do so, on the form the court is providing, in time for the
court to receive it by the end of the day on Friday, September 28, 2018.
If the plaintiff does not file these two documents in time for the court to
receive them by the end of the day on September 28, 2018 (or file a motion

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asking for additional time to do so), the court will dismiss the case for failure to
prosecute under Civil Local Rule 41.
Dated in Milwaukee, Wisconsin this 28th day of August, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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