Jackson v. Bloomfield Police Department et al

Filing 76

ORDER signed by Judge Lynn Adelman on 10/25/18. IT IS ORDERED that the Bloomfield Police Departments motion to dismiss 67 is GRANTED. IT IS FURTHER ORDERED that the plaintiff's motion for leave to file an amended complaint 70 is DENIED. IT IS FURTHER ORDERED that the plaintiffs motion for reconsideration 69 is DENIED. IT IS ORDERED that the Clerk of Court shall enter final judgment. (cc: all counsel, plaintiff) (jad)

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, commenced this action under 42 U.S.C. § 1983
on November 3, 2017. His complaint is unclear, but in general he appears to allege
that, on November 3, 2011, an officer of the Bloomfield Police Department, Aaron
Hensen, illegally arrested him on private property for driving while intoxicated. Jackson
also alleges that Hensen stole money from him and falsified evidence of his guilt.
However, Jackson has decided to not pursue a claim for damages against Hensen in
his individual capacity. Although Jackson originally named Hensen as a defendant to
this case, he never served him with the summons and complaint. When I warned
Jackson that I would dismiss Hensen as a party for lack of service, Jackson moved to
dismiss his claims against Hensen in his individual capacity. On August 15, 2018, I
dismissed all claims against Hensen without prejudice for lack of service.
Although Jackson has elected not to pursue claims against Hensen, he has tried
to pursue claims against other individuals and entities that were associated with his
arrest and subsequent prosecution, namely, the Bloomfield Police Department, the chief
of the department (who is identified in the complaint only as “Chief Cole”), the Walworth

County Circuit Court, Walworth County Circuit Court Judge Race, the Walworth County
District Attorney’s Office, and Walworth County District Attorney Zeke Wiedenfeld. In
prior orders, I dismissed the plaintiff’s claims against all of these defendants except the
Bloomfield Police Department. Before me now are several motions: (1) the Bloomfield
Police Department’s motion to dismiss; (2) the plaintiff’s motion for reconsideration of
my order dismissing his claims against the Walworth County Circuit Court, Judge Race,
the Walworth County District Attorney’s Office, and District Attorney Wiedenfeld; and (3)
the plaintiff’s motion to amend his complaint to name the City of Elkhorn, the County of
Walworth, and the Town of Bloomfield as defendants.
First, I address the Bloomfield Police Department’s motion to dismiss. The basis
for the motion is that a police department of a Wisconsin town is not a suable entity for
purposes of § 1983. In general, municipal police departments are not suable entities.
See, e.g., Sow v. Fortville Police Department, 636 F.3d 293, 300 (7th Cir. 2011), Best v.
City of Portland, 554 F.3d 698 n* (7th Cir. 2009), Grow v. City of Milwaukee, 84 F.
Supp. 2d 990, 995–96 (E.D. Wis. 2000). However, whether a particular department is
suable is a question of state law.

Sow, 636 F.3d at 300. The Wisconsin Statutes

contain no provision granting a town police department the capacity to sue and be sued.
Rather, the power to sue and be sued is vested in the town itself. See Wis. Stat.
§ 60.01(2)(a).

Moreover, the plaintiff has pointed to no other source of state law

granting the power to sue and be sued to the Town of Bloomfield Police Department.
Accordingly, the Department’s motion to dismiss will be granted.
Next, I address the related issue of whether Jackson should be granted leave to
amend his complaint to name a municipality—which would be suable under § 1983—as

2

a defendant.

Here, the proper municipality to substitute for the Bloomfield Police

Department would seem to be the Town of Bloomfield, but the plaintiff also seeks leave
to name the City of Elkhorn and the County of Walworth as defendants. I will not grant
the plaintiff leave to amend to add any of these municipalities to the case. The original
complaint contains no allegations suggesting any basis for liability against these
municipalities under 42 U.S.C. § 1983. Although the Town of Bloomfield employed
Officer Hensen, this fact alone is insufficient to render the town liable for any
constitutional torts that Hensen may have committed in the course of his duties. See
Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 691 (1978).
Rather, the town could be liable under § 1983 only if Henson’s actions were taken
pursuant to a town policy or custom. Id. at 694. The original complaint contains no
factual allegations giving rise to a reasonable inference that Hensen’s actions were
taken pursuant to such a policy or custom. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (a complaint states a claim only if the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable). Moreover, in his
motion for leave to amend, Jackson does not identify any facts that he would allege in
an amended complaint that would give rise to a reasonable inference that a town policy
or custom was behind Hensen’s actions. 1 Rather, Jackson proposes to do no more
than add the town’s name to the complaint. Accordingly, I find that granting leave to
amend would be futile and will deny Jackson’s motion for such leave. See Foman v.
Davis, 371 U.S. 178, 182 (1962) (court may deny leave to amend where the
1

In this regard, I note that Jackson has not complied with this court’s local rule
governing motions for leave to amend, which require a movant to attach a copy of the
proposed amended pleading to the motion to amend. See Civ. L.R. 15(b) (E.D. Wis.
2010, rev. Dec. 2015).

3

amendments would be futile). Moreover, because I can detect no plausible claim for
relief against the City of Elkhorn or the County of Walworth, I will deny the plaintiff’s
request to add these municipalities as defendants.
Finally, I address the plaintiff’s motion for reconsideration of my order dismissing
his claims against the Walworth County Circuit Court, Judge Race, the Walworth
County District Attorney’s Office, and District Attorney Wiedenfeld.

The plaintiff

contends that I wrongly dismissed his claims against Judge Race and D.A. Wiedenfeld
on the ground that they are absolutely immune from suit. He does not address my
reasons for dismissing the circuit court and the D.A.’s office, which were that these
entities are not suable and that, even if they were, they would not be “persons” within
the meaning of § 1983 because they are arms of the State of Wisconsin. In any event, I
see no grounds for reconsidering my dismissal of these four defendants and will stand
on the reasons given in the dismissal order. The motion for reconsideration will be
denied.
Because this order disposes of all remaining claims in this case, I will direct the
Clerk of Court to enter final judgment.
For the reasons stated, IT IS ORDERED that the Bloomfield Police Department’s
motion to dismiss (ECF No. 67) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave to file an
amended complaint (ECF No. 70) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for reconsideration (ECF
No. 69) is DENIED.

4

FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 25th day of October, 2018.

s/Lynn Adelman________
LYNN ADELMAN
District Judge

5