Jackson v. Bloomfield Police Department et al

Filing 39

ORDER signed by Judge Lynn Adelman on 03/19/2018. IT IS ORDERED that plaintiffs 4 Motion to Amend is DENIED. FURTHER ORDERED that Wiedenfelds and the district attorneys offices motion to dismiss 9 is GRANTED. ORDERED that plaintiffs motion to s trike the Bloomfield Police Departments affirmative defenses 13 is DENIED. ORDERED that the motion for an extension of time filed by Judge Race and the Walworth County Circuit Court 16 is GRANTED. ORDERED that plaintiffs motion for entry of defa ult 23 is DENIED. FURTHER ORDERED that the motion to dismiss of Judge Race and the Walworth County Circuit Court 17 is GRANTED. ORDERED that plaintiffs motion to strike certain filings by the defendants for lack of proper service 21 is DENIED. ORDERED that plaintiffs motion to challenge jurisdiction 33 is DENIED. FURTHER ORDERED that plaintiffs motion to strike Bloomfields brief in opposition 35 is DENIED. FINALLY, IT IS ORDERED that if the plaintiff does not file proof of service of the summons and complaint on defendants Hensen and Cole by April 9, 2018, I will enter an order dismissing those defendants from this case. (cc: all counsel, Plaintiff) (lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AKIL C. JACKSON,
Plaintiff,
v.

Case No. 17-C-1515

BLOOMFIELD POLICE DEPARTMENT,
et al.,
Defendants.

DECISION AND ORDER
Akil Jackson, proceeding pro se, filed this suit against Aaron Hensen, an officer
of the Bloomfield, Wisconsin, police department. Although his complaint is not entirely
clear, Jackson appears to allege that Hensen committed violations of his constitutional
rights during an arrest and subsequent prosecution for driving while intoxicated.
Jackson also sues various other persons and entities, including the Bloomfield Police
Department, Chief Cole, the assistant district attorney who prosecuted him (and the
district attorney’s office), the judge who presided over his trial, and the Walworth County
Circuit Court. The plaintiff seeks money damages under 42 U.S.C. § 1983. Before me
now are a number of motions that the parties have filed over the last few months.
First, Jackson has filed a motion to amend his complaint. However, the motion
proposes only to add legal citations to the complaint, including a citation to 42 U.S.C.
§ 1983.

A complaint does not need to cite legal authority or plead legal theories.

Rather, the plaintiff may pursue his claims under these statutes even if he does not cite
them in the complaint. Therefore, his proposed amendments are unnecessary, and his
motion to amend will be denied.

Second, the Walworth County District Attorney, Zeke Wiedenfeld,1 and his office
have filed a motion to dismiss the complaint for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(6). I will grant this motion. An assistant
district attorney has absolute immunity from suit against him in his personal capacity for
actions taken during a criminal trial. See, e.g., Bianchi v. McQueen, 818 F.3d 309, 316
(7th Cir. 2016).

Here, all of Jackson’s allegations against Wiedenfeld involve his

conduct during the course of the trial. To the extent plaintiff is suing Wiedenfeld in an
official capacity, his claim fails because state officers in their official capacities are not
“persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police, 491
U.S. 58 (1989). Therefore, the claims against Wiedenfeld will be dismissed. As for the
district attorney’s office, it is not a suable entity. See Buchanan cv. City of Kenosha, 57
F. Supp. 2d 675, 678 (E.D. Wis. 1999). Moreover, even if it were, it would be an arm of
the State of Wisconsin and therefore would not be a “person” within the meaning of
§ 1983. See Will, 491 U.S. at 71. Accordingly, the claims against the district attorney’s
office will be dismissed.
Third, the plaintiff has filed a motion to strike the affirmative defenses asserted in
the answer of the Bloomfield Police Department. Federal Rule of Civil Procedure 12(f)
allows a court to strike any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. Bloomfield’s affirmative defenses are none of these
things. Therefore, the motion to strike will be denied.
Fourth, defendants Judge John Race and the Walworth County Circuit Court
move to extend their time to file a responsive pleading. These defendants did not file a
1

Wiedenfeld was the assistant district attorney who prosecuted the plaintiff. He has
since been elected District Attorney of Walworth County.

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response to the complaint within 21 days of being served, as required by Rule
12(a)(1)(A)(i). However, I may extend their time to respond if they show that their failure
to file a timely response was caused by excusable neglect.
6(b)(1)(B).

See Fed. R. Civ. P.

The defendants state that their untimely filing was caused by a

misunderstanding in the Wisconsin Department of Justice regarding who would be
defending Judge Race and the circuit court.

I find that this constitutes excusable

neglect and therefore will deem their late-filed response to the complaint timely. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). For
these reasons, I will also deny the plaintiff’s motion to enter the defaults of Judge Race
and the circuit court.
Fifth, Judge Race and the Walworth County Circuit Court have filed a motion to
dismiss the claims against them. I will grant this motion. Like the district attorney’s
office, the county circuit court is an arm of the State of Wisconsin. Therefore, it is not a
“person” suable under 42 U.S.C. § 1983. Will, 491 U.S. at 64. The same is true for
Judge Race, to the extent he is being sued in his official capacity.

Any personal-

capacity claim against him would be barred by absolute judicial immunity, as the claims
against him are based on his presiding over the plaintiff’s trials.

See Myrick v.

Greenwood, 856 F.3d 487, 488 (7th Cir. 2017).
Sixth, the plaintiff has filed a motion to strike several filings made by the
Bloomfield Police Department, Judge Race, and the Walworth County Circuit Court on
the ground that he was not served with them, as required by Federal Rule of Civil
Procedure 5. However, the defendants filed certificates of service showing that they
mailed all of their filings to the plaintiff at his last known address. See ECF Nos. 7-1 &

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32.

Thus, the defendants properly served the documents, see Fed. R. Civ. P.

5(b)(2)(C), and the plaintiff’s motion to strike will be denied.
Seventh, the plaintiff filed a “motion to challenge jurisdiction” relating to the
Walworth County Circuit Court and Judge Race. I will deny this motion on the ground
that it does not seek relief that is available in a federal civil case.
Eighth, the plaintiff filed a third motion to strike. This motion to strike is directed
at a brief that the Bloomfield Police Department filed in opposition to a motion for entry
of default that the plaintiff served on the department but did not file with the court. As
the plaintiff has not filed his motion for entry of default with the court, it is not before me,
and therefore I do not consider it or Bloomfield’s brief in opposition. The plaintiff’s
motion to strike Bloomfield’s brief is therefore moot.
Finally, I comment on the status of this case.

Because I have dismissed

Wiedenfeld, the district attorney’s office, Judge Race, and the Walworth County Circuit
Court, the only defendants remaining in the case are the Bloomfield Police Department,
Officer Hensen, and Chief Cole. Of these remaining defendants, only the Bloomfield
Police Department has appeared in the case. Perhaps the plaintiff has not completed
service on Hensen and Cole. In this regard, I note that the plaintiff has not filed proof
that he served Hensen and Cole (or any of the defendants, for that matter), as required
by Federal Rule of Civil Procedure 4(l)(1). The plaintiff is hereby advised that if he does
not, by April 9, 2018, file proof that he served Hensen and Cole with the summons and
complaint, I will dismiss them from this action. Once the status of service on Hensen
and Cole is resolved, I will set this case for a scheduling conference so that discovery
may commence.

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CONCLUSION
For the reasons stated, IT IS ORDERED that plaintiff’s motion to amend (ECF
No. 4) is DENIED.
IT IS FURTHER ORDERED that Wiedenfeld’s and the district attorney’s office’s
motion to dismiss (ECF No. 9) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to strike the Bloomfield Police
Department’s affirmative defenses (ECF No. 13) is DENIED.
IT IS FURTHER ORDERED that the motion for an extension of time filed by
Judge Race and the Walworth County Circuit Court (ECF No. 16) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for entry of default (ECF No.
23) is DENIED.
IT IS FURTHER ORDERED that the motion to dismiss of Judge Race and the
Walworth County Circuit Court (ECF No. 17) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to strike certain filings by the
defendants for lack of proper service (ECF No. 21) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s “motion to challenge jurisdiction” (ECF
No. 33) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to strike Bloomfield’s brief in
opposition (ECF No. 35) is DENIED.
FINALLY, IT IS ORDERED that if the plaintiff does not file proof of service of the
summons and complaint on defendants Hensen and Cole by April 9, 2018, I will enter
an order dismissing those defendants from this case.

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Dated at Milwaukee, Wisconsin, this 19th day of March, 2018.

s/Lynn Adelman______________
LYNN ADELMAN
District Judge

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