Wilson v. Milwaukee County

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 2/28/2018 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. By 3/30/2018, Plaintiff to file an amended complaint in accordance with this Order; failure to do so will result in dismissal of this action. See Order for further details. (cc: all counsel, via mail to Derrick Alan Wilson, Jr.) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DERRICK ALAN WILSON, JR.,

v.

Plaintiff,

Case No. 18-CV-241-JPS

MILWAUKEE COUNTY,
Defendant.

ORDER

Plaintiff, Derrick Alan Wilson, Jr. (“Wilson”), proceeding pro se, filed
a complaint alleging that Defendant, Milwaukee County, violated his
rights. (Docket #1). Before the Court is Wilson’s motion to proceed in forma
pauperis. (Docket #2). In order to allow a plaintiff to proceed without paying
the filing fee, the Court must first decide whether the plaintiff has the ability
to pay the filing fee and, if not, whether the lawsuit is frivolous or fails to
state a viable claim. 28 U.S.C. §§ 1915(a), (e)(2)(B). The Court will address
each of these questions below.
1.

Plaintiff’s Indigence
On the first issue, regarding his inability to pay the filing fee, Wilson

avers that he is unemployed, unmarried, and has no dependents. (Docket
#2 at 1). He earns no regular income but has received $900 in the last twelve
months from “Staff Works,” a local temporary staffing agency. Id. at 2.
Wilson reports that he is homeless, (Docket #1 at 1), and explains that he
has no expenses or assets of any kind, (Docket #2 at 2–4). On these
averments, particularly in light of the fact that Wilson is homeless, the
Court finds that he has demonstrated that he cannot pay the $350 filing fee
and $50 administrative fee.

2.

Screening the Complaint
Notwithstanding any filing fee, the Court must dismiss a complaint

or portion thereof if it has raised 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. § 1915(e)(2)(B). 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); Hutchinson ex rel. Baker
v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may, therefore, 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 construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109–10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
a plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his statement need only
“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)). However, a complaint that offers
“labels and conclusions” or “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). To state a claim, 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
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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).
Wilson’s complaint concerns a wide variety of alleged unlawful acts.
Unfortunately, his allegations are too scattered, incoherent, and bereft of
detail to proceed at present. Put simply, Wilson has not told the Court and
the defendants the “who, what, when, and where” of his claims. The
essential function of a complaint is to provide notice, see Fed. R. Civ. P. 8(a),
and defendants should not be forced to incur the cost of defending
themselves in a federal lawsuit absent some indication that the plaintiff has
a cognizable claim and enough information so they know what his claim is
about. The Court will permit Wilson an opportunity to amend his
complaint to rectify this and other problems, but first it will explain why
each of his claims fall short.
2.1

Harassment by Glendale Police Department

First, Wilson says that he has been physically assaulted and harassed
by members of the Glendale Police Department during a three-year span
between 2014 and 2017. (Docket #1 at 2). He explains that on one or more
occasions, his sister would call Glendale police officers to remove him from
their grandfather’s house. Id. Additionally, “one day, [the officers] racially
profiled and illegally stopped, assaulted, and arrested me.” Id. Wilson
contends that the harassment was so severe that officers would show up
while he was shopping at a local store and arrest him without cause. Id.
As to the alleged harassment, unlawful arrest, and use of excessive
force by the Glendale police, Wilson may be able to proceed under 42 U.S.C.
§ 1983 for violations of his rights under the Fourth and Fourteenth
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Amendments. See Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827
(7th Cir. 2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980). However, he must
offer further detail as to the dates and circumstances of each incident he
wishes to challenge as unlawful. Vague suggestions regarding what appear
to be unrelated incidents that occur over a three-year timespan are not
enough to meet even the low pleading standards required by Rule 8. See
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2011) (a complaint must specify
“the bare minimum facts necessary to put the defendant on notice of the
claim so that he can file an answer”).
Moreover, Wilson must name the individual officers involved as
defendants. If he does not know their real names, he should identify them
as John or Jane Does and they can be identified by their true names during
discovery. Further, Wilson cannot simply sue Milwaukee County for the
allegedly unlawful acts he has described even though the conduct appears
to have occurred in Milwaukee County. Local government entities, such as
municipalities and counties, cannot be held vicariously liable for
constitutional violations committed by their employees. Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Instead, such entities
are liable only if their policies or widespread practices lead to the plaintiff’s
injury. Thomas v. Cook Cnty. Sheriff's Dep’t, 604 F.3d 293, 303 (7th Cir. 2010).
If Wilson believes that such a policy or practice exists in this case, he should
name the relevant municipality, not Milwaukee County, and allege
sufficient facts to raise a plausible inference that a such a policy or practice
existed.
2.2

Incidents in the Milwaukee House of Corrections

Next, Wilson levies complaints against correctional officers at the
Milwaukee County House of Corrections, though he does not explain when
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or why he was housed there. Id. at 2–3. First, Wilson claims he was assaulted
without reason by a correctional officer whose last name is Janik. Id. at 3.
Second, he states that he was sexually harassed by a different male
correctional officer, who was “frisky around [his] ‘ass crack’ and attempted
to grab [his] penis.” Id.
These allegations may be able to proceed under Section 1983 on a
theory that the officers’ actions violated Wilson’s Fourteenth or Eighth
Amendment rights. See Fillmore v. Page, 358 F.3d 496, 503–05 (7th Cir. 2004);
Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2006). However, Wilson
must provide more information as to when these incidents occurred and
identify the officer in the second incident as a Doe defendant. He should
also identify the reason for his incarceration if he can.
There is another problem with Wilson’s complaint, and it arises
because he attempts to join together in one suit several seemingly unrelated
claims. Federal Rule of Civil Procedure 18 permits a plaintiff to bring in one
lawsuit every claim he has against a single defendant. Fed. R. Civ. P. 18(a).
However, to join multiple defendants in a single action, Rule 20 requires
that the plaintiff assert at least one claim against all of them “arising out of
the same transaction, occurrence, or series of transactions or occurrences”
and that “any question of law or fact common to all defendants will arise in
the action.” Id. 20(a)(2). Working together, these two rules mean that
“[u]nrelated claims against different defendants belong in different suits.”
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Thus, “multiple claims
against a single party are fine, but Claim A against Defendant 1 should not
be joined with unrelated Claim B against Defendant 2.” Id.
In Wilson’s case, there are no allegations tying his claims against the
Glendale police to his claims against the House of Corrections officials.
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They appear to be unrelated in time, scope, legal theory, and operative facts.
As a result, Wilson must include in his amended complaint some
allegations showing that the claims against these two groups of people arise
from the same occurrence or series of occurrences, otherwise the Court will
be forced to sever them into separate actions.1
2.3

Mistreatment at Milwaukee Area Hospitals

Third, Wilson states that from 2015 to the present, he has been
neglected while seeking treatment in Milwaukee area hospitals. Id. These
include St. Joseph’s, Columbia St. Mary’s, Aurora Sinai Samaritan, and
Froedtert hospitals. Id. He cannot recall the exact dates or circumstances of
any instance of mistreatment. Id.
Wilson may not include any of these allegations in his amended
complaint, as such claims should not be brought in federal court. First, these
private hospitals are not amenable to suit under Section 1983, since they are
not state actors, nor did they act in concert with state actors to violate
Wilson’s rights. Norman v. Campbell, 87 F. App’x 582, 584 (7th Cir. 2003).
Second, Wilson’s allegations reveal that, at worst, he was subjected to
medical malpractice, which is a matter of state, not federal, law. See Steele v.
Choi, 82 F.3d 175, 178 (7th Cir. 1996). Third, there is no diversity jurisdiction
over such claims, as Wilson and these defendants are all citizens of
Wisconsin. Norman, 87 F. App’x at 585. Moreover, because these allegations
do not appear related in time or scope to his other claims, there is no reason
to hear them under the Court’s supplemental jurisdiction. See 28 U.S.C. §
1367(a). They must be dismissed.

This same joinder problem arises with respect to Wilson’s other claims,
too, although those claims are subject to dismissal for different reasons, as will be
explained further below.
1

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2.4

Assault at Family Dollar

Fourth, Wilson complains that in late September 2017, he was
assaulted by employees of the Family Dollar store at 60th Street and Silver
Spring Drive while leaving that store. Id. He alleges that ordinary citizens
were also involved in the assault. Id. He later tried to file a police report
about the incident. Id.
These allegations, like those against the local hospitals, cannot
proceed further and may not be included in Wilson’s amended complaint.
Private citizens and employees of the Family Dollar are, like the hospitals,
not state actors and therefore are not subject to suit under Section 1983. See
Proffitt v. Ridgway, 279 F.3d 503, 507 (7th Cir. 2002). If they indeed assaulted
Wilson, his only resort would be a suit under state law for battery. That
claim is not sufficiently related to his potential federal claims, however, see
28 U.S.C. § 1367(a), and so it should be brought only in a separate state court
lawsuit.
2.5

Monitoring

Finally, Wilson alleges that he has been subject to monitoring and
filming by “the whole County of Milwaukee.” Id. at 4. He claims that
Milwaukee residents have been “recording/filming [him] on their cell
phones” since at least 2014. Id. He worries that everyone in the county is
“literally watching [him]” and that they have “turn[ed] on [him].” Id.
Wilson may not proceed on these claims, nor should he try to include
them in an amended complaint. A claim may be dismissed “because the
facts alleged are so. . .unbelievable, even though there has been no
evidentiary hearing to determine their truth or falsity.” Gladney v. Pendleton
Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). “[N]o evidentiary hearing is
required in a prisoner’s case (or anyone else’s, for that matter) when the
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factual allegations are incredible.” Id. Wilson’s allegations in this claim are
clearly of the incredible variety—it is simply impossible to believe that all
Milwaukee County residents are engaged in an ongoing, years-long spying
campaign against him. See Denton, 504 U.S. at 32–33. As the claim appears
to the product of only paranoid delusion, it must be dismissed as frivolous.
Gladney, 302 F.3d at 775.
2.6.

Amending the Complaint

If Wilson wishes to proceed, he must file an amended complaint
curing the deficiencies in the original complaint as described herein. The
Court reminds him that he should omit from his amended complaint any
reference to his claims relating to Milwaukee area hospitals, the Family
Dollar assault incident, and the monitoring issue. Wilson’s amended
complaint must be filed on or before March 30, 2018. Failure to file an
amended complaint within this time period will result in dismissal of this
action.
The amended complaint must bear the docket number assigned to
this case and must be labeled “Amended Complaint.” The amended
complaint supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th Cir. 1998). In
Duda, the appellate court emphasized that in such instances, the “prior
pleading is in effect withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted). If an amended complaint is
received, the Court will screen it pursuant to 28 U.S.C. § 1915.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that on or before March 30, 2018,
Plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein; and
IT IS FURTHER ORDERED that Plaintiff shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE
COURT’S CHAMBERS. It will only delay the processing of the matter.
Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. In addition,
the parties must notify the Clerk of Court of any change of address. Failure
to do so could result in orders or other information not being timely
delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 28th day of February, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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