Kyles v. Charney et al

Filing 8

ORDER signed by Judge Pamela Pepper on 2/2/2018 DENYING as moot 7 plaintiff's motion for extension of time to pay initial partial filing fee; GRANTING 2 plaintiff's motion for leave to proceed without prepayment of the filing fee. Plai ntiff may file amended complaint by 3/2/2018. Agency having custody of plaintiff shall collect $347.23 balance of filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). (cc: all counsel, via mail to Elliott Kyles-with EDWI prisoner complaint form; Brown County Sheriff) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ELLIOTT G. KYLES,
Plaintiff,
v.

Case No. 17-cv-1102-pp

BEAU CHARNEY,
SILVA ESCALANTE, and
JEREMY NELSON,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR AN
EXTENSION OF TIME TO PAY THE INITIAL PARTIAL FILING FEE (DKT.
NO. 7), GRANTING THE PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, who was incarcerated at the Brown County Jail when he
filed his complaint, is representing himself. He filed a complaint alleging that
the defendants violated his constitutional rights by illegally strip-searching
him. Dkt. No. 1. He also filed a motion asking the court to allow him to proceed
without prepaying the filing fee. Dkt. No. 2. This order resolves the motion for
leave to proceed without prepayment of the filing fee, and screens the
complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case, because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA authorizes a court to allow an incarcerated plaintiff to proceed with his

lawsuit without prepaying the case filing fee, as long as he meets certain
conditions. One of those conditions is that the plaintiff must pay an initial
partial filing fee. 28 U.S.C. §1915(b).
On August 10, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $2.77 by August 31, 2017. Dkt. No. 4. On August 21, 2017,
the court received a motion from the plaintiff, asking for additional time to pay
the fee. Dkt. No. 7. The court received the initial partial filing fee on August 28,
2017, three days before the original deadline, so no extension of the deadline
was necessary. The court will deny as moot the plaintiff’s motion for an
extension of time, and will grant his motion to proceed without prepayment of
the filing fee. The court will order the plaintiff to pay the remainder of the filing
fee over time in the manner explained at the end of this decision.
II.

Screening the Plaintiff’s Complaint
The PLRA requires the court 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
if the 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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
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allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed 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 defendant was acting under color of state law. Buchanan-Moore v.
C’nty of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of
N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). The court gives a pro se plaintiff’s 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)).
A.

The Plaintiff’s Allegations

The plaintiff alleges that on December 22, 2015, Beau Charney illegally
strip-searched him while he was detained. Dkt. No. 1 at 3. He alleges that, on
the same date, while he was detained at the Brown County Jail, Silva
Escalante strip-searched him. Id. at 5. Finally, he alleges that on the same
date, while he was being detained but before he’d been booked into the jail,
Jeremy Nelson strip-searched him. Id. 6. The plaintiff alleges that these
searches were unlawful, because they violated his rights under the Fourth
Amendment, and because no one provided him with the information required
by Wis. Stat. §968.225 prior to the search. Id. at 3-6. He asks for money
damages. Id. at 7.
B.

The Court’s Analysis

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The plaintiff’s complaint is missing some information that the court
needs in order to determine whether he states a claim that a federal court can
consider. It appears that the plaintiff was a pretrial detainee at the time the
alleged searches took place—in other words, that he wasn’t in the Brown
County Jail because he’d been convicted of a crime, but because he had been
arrested and was waiting to be charged or to go to court. If this is true, then
the plaintiff may have grounds to state a claim under the Fourth Amendment
of the U.S. Constitution. “Pretrial detainees retain their constitutional rights,
including the protections of the Fourth Amendment against unreasonable
searches and seizures.” Young v. County of Cook, 616 F.Supp.2d 834, 845
(N.D. Ill. April 2, 2009) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)). That
does not necessarily mean that the actions he alleges violated the Fourth
Amendment, but it does mean that he may have a claim that a federal court
can consider.
The plaintiff does not explain, however, who Charney, Escalante and
Nelson are. Are they deputy sheriffs in Brown County? Do they work at the
Brown County Jail? What are their positions? This is important, because the
law that gives someone the ability to sue for civil rights violations—42 U.S.C.
§1983—allows that person to sue only someone who was acting “under color of
. . . State” law. In other words, the person who allegedly violated the plaintiff’s
rights has to be a state employee. The court cannot tell from the plaintiff’s
complaint whether these three individuals were employed by a state entity.

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The plaintiff also appears to be alleging that the strip-searches were
unlawful under Wisconsin law. A federal court can consider a claim that
someone violated state law only if that claim is related to a valid claim that the
defendants violated federal law. 28 U.S.C. §1367. “[A] violation of state law is
not a ground for a federal rights suit.” Guajardo-Palma v. Martinson, 622 F.3d
801, 806 (7th Cir. 2010).
The court will allow the plaintiff to amend his complaint to include
additional details about the searches. Why was the plaintiff in the Brown
County Jail on December 22, 2015? Who are Charney, Escalante and Nelson?
Why were they searching the plaintiff—were they looking for something in
particular (drugs, contraband, a weapon)? The court encourages the plaintiff to
provide it with facts (who, what, when, where, why and how) as opposed to
legal conclusions. In other words, he should not simply state that “the search
was illegal;” instead, he should provide more details, so the court can make
that determination based on the law.
If the plaintiff wants to proceed, he must file an amended complaint
providing the information the court has described. The court will require the
plaintiff to file this amended complaint in time for the court to receive it by the
end of the day on Friday, March 2, 2018. If the court does not receive the
plaintiff’s amended complaint by that deadline, the court will infer that the
plaintiff no longer wishes to pursue the case, and will dismiss it without
prejudice for lack of prosecution. See Civil L.R. 41(c) (E.D. Wis.).

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The plaintiff should use the court’s form (which the court will include
with this order) and write “Amended” at the top of the first page, next to the
word “Complaint.” He should write the case number assigned to this case (17cv-1102) in the space to the right, where it says “Case Number.” The amended
complaint replaces the prior complaint (it will be as if the plaintiff never filed an
original complaint), so the amended complaint must be complete in itself (it
must name all of the defendants and identify all of the claims the plaintiff
wants to prosecute), without referring back to the original complaint. See Duda
v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 105657 (7th Cir. 1998). In other words, the plaintiff cannot simply say, “Beau
Charney was a guard at the Brown County Jail; see original complaint.” If the
plaintiff chooses to file an amended complaint by the deadline, the court will
screen it under 28 U.S.C. § 1915A. If the plaintiff does not want to pursue this
case, he doesn’t need to do anything else.
III.

Conclusion
The court GRANTS the plaintiff's motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court DENIES as moot the plaintiff’s motion for an extension of time.
Dkt. No. 7.
The court ORDERS that, if the plaintiff wants to file an amended
complaint, he must do so in time for the court to receive it by the end of the
day on March 2, 2018.

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The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $347.23 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 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 agency shall clearly identify the payments by the case name
and number assigned. If the 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.
The court will mail a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court will mail a blank prisoner complaint form to the plaintiff.
The court ORDERS that the plaintiff shall submit all correspondence and
case filings to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that if he doesn’t file pleadings or comply
with the court’s orders by the deadlines the court sets, the court may dismiss
his case for failure to prosecute it. The parties must notify the clerk of court of
any change of address. Failure to do so could result in orders or other

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information not being timely delivered, which could affect the legal rights of the
parties.
Dated in Milwaukee, Wisconsin this 2nd day of February, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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