Troupe v. Fenderson et al
ORDER signed by Chief Judge Pamela Pepper on 7/15/2021. 9 Plaintiff's objections OVERRULED. 7 Judge Joseph's report and recommendations ADOPTED. Defendants Hamad, Rudebusch, Mueller, Christensen, Flancher, McClendon, Constantine, Goepel , Boyle, Larsen, Kallenbach, Brehm, Herold, Rivers, Spaulding, Smith, Van Hecke DISMISSED. 21 Plaintiff's request for speedy trial DENIED. 25 Plaintiff's request for summary of evidence and request that Asia Barry be granted power of at torney DENIED. 26 Proposed amended complaint CONSTRUED as motion to amend, motion DENIED. 32 Plaintiff's request for body cam footage DENIED without prejudice. 36 Plaintiff's motion for in-custody speedy trial DENIED. USMS to serve copy of amended complaint and this order on defendants Thill, Neubauer, Dummer, Amundsen, Longrie, Wassil, Fenderson, Frieri Gaines, Webb under FRCP 4; those defendants to file responsive pleading. (cc: all counsel and mailed to Anthony Troupe)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTHONY L. TROUPE,
Case No. 19-cv-1318-pp
LAVONTAY FENDERSON, HELMI HAMAD,
ALICE RUDEBUSCH, EMILY S. MUELLER,
SAMUEL A. CHRISTENSEN, FAYE M. FLANCHER,
JAMIE M. MCCLENDON, CHARLES CONSTANTINE,
ROBERT GOEPEL, TIMOTHY D. BOYLE, KELLY LARSEN,
TERRANCE KALLENBACH, BENNETT F. THILL,
GARY F. NEUBAUER, RACHEL A. BREHM,
ADAM R. AMUNDSEN, NATALIE E. LONGRIE,
CODY J. DUMMER, ALLEN J. WASSIL,
A. FELICIA FRIERI GAINES, STEVEN R. HEROLD,
RICHARD RIVERS, JOSEPH R. SPAULDING,
MICHAEL E. SMITH, LENNET WEBB,
and JEREMIAH C. VAN HECKE,
ORDER ADOPTING JUDGE JOSEPH’S RECOMMENDATION (DKT. NO. 7)
AND DISMISSING DEFENDANTS, DENYING PLAINTIFF’S REQUEST FOR
SPEEDY TRIAL (DKT. NO. 21), DENYING PLAINTIFF’S REQUEST FOR
SUMMARY OF EVIDENCE AND THAT ASIA BARRY BE GRANTED POWER
OF ATTORNEY (DKT. NO. 25), CONSTRUING PLAINTIFF’S PROPOSED
AMENDED COMPLAINT AS A MOTION TO AMEND THE COMPLAINT AND
DENYING SAME (DKT. NO. 26), DENYING PLAINTIFF’S MOTION FOR INCUSTODY SPEEDY TRIAL (DKT. NO. 36) AND ORDERING THE U.S.
MARSHAL TO SERVE DEFENDANTS
On September 11, 2019, the plaintiff, who is representing himself and
does not have the assistance of a lawyer, filed a complaint against fifteen
defendants employed by the City of Racine. Dkt. No. 1. As to all fifteen
defendants, the plaintiff made a single allegation: “perjury and threats by
officers, beaten by those that I assumed authority, stalled case starting with a
false riverside hearing has court without representation.” Id. at 2. On
September 16, 2019, Magistrate Judge Nancy Joseph ordered the plaintiff to
file an amended complaint within thirty days, dkt. no. 4, and the plaintiff
complied, dkt. no. 5. On October 18, 2019, Judge Joseph granted the plaintiff’s
motion to proceed without prepaying the filing fee, dkt. no. 6, but issued a
separate report recommending that many of the defendants be dismissed for
failure to state a claim, dkt. no. 7.
The plaintiff filed a timely “objection and grievance” to the
recommendation. Dkt. No. 9. He has since flooded the court with documents
regarding his efforts in connection with this case and ongoing proceedings in
Racine County. See, e.g., Dkt. Nos. 10, 11, 13, 14, 15, 16, 17, 19, 20, 22, 23,
24, 27, 29, 30, 31, 33, 34. He also has filed a proposed amended complaint,
dkt. no. 26, motions for a speedy trial, dkt. nos. 21, 36, and a request for a
summary of the evidence filed and the appointment of Asia Barry as his power
of attorney, dkt. no. 25, and he has asked for a copy of the body cam footage
from the Racine Police Commission, dkt. no. 32. The court will adopt the report
and recommendation, dismiss some of the defendants, deny the plaintiff’s
motions and order the U.S. Marshal to serve the remaining defendants.
Review of the Report and Recommendation
The court reviews de novo any portion of the recommendation to which
the plaintiff filed a timely objection. 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).
The court may accept, reject or modify, in whole or in part, the magistrate
judge’s recommendation. 28 U.S.C. §636(b)(1).
In his amended complaint, the plaintiff alleges that the defendants
violated the Fourth Amendment and says that he is suing “within the definition
of Bivens or U.S.C. § 1983 of Title 42.” Dkt. No. 5 at 2. The plaintiffs says that
on March 28, 2018, he noticed he was being followed “by unmarked cars” after
leaving a class in Racine, Wisconsin to return to HALO1. Id. at 3. The plaintiff
states that “[a]fter discovering that [he’d] lost the means to return to
Milwaukee,” he began to panic “in order to” find his belongings, particularly the
school laptop given to him by Asia Barry. Id. at 3-4. The plaintiff says that
because he was still being followed and harassed during the “panicked search,”
the plaintiff asked security at S.C. Johnson Wax Headquarters to call the police
to help him search for his belongings. Id. at 4.
The plaintiff says that “[d]uring the initial questioning,” he noticed that
defendant “Fenderson was upset, almost to the point of tears, when he notified
a ‘51st squad’ that he” had had found the plaintiff. Id. The plaintiff says that
defendant Amundsen offered to drop the plaintiff off at HALO and the plaintiff
accepted on the condition that he ride with Fenderson. Id. The plaintiff says
that during the ride, he noticed that Fenderson was “still corresponding with a
“HALO” is an acronym for the Homeless Assistance Leadership Organization,”
located in Racine, Wisconsin. Among other things, HALO provides supportive
housing units. https://haloinc.org/housing.
‘51st squad’” until Fenderson asked why the plaintiff was in Racine; the plaintiff
responded he was there “ultimately” there for the “finest woman in Racine.” Id.
at 4-5. The plaintiff searched for, but did not locate, his belongings at HALO.
Id. at 5. He says that afterward, he “felt [he] absolutely had to leave because
[he] couldn’t find the armed security of HALO,” and he went searching for
them. Id. He thought they were outside, until someone shined a spotlight in the
plaintiff’s face and yelled at him in the rain. Id.
The plaintiff says that this time “was identified as [his] altercation with
police of Racine.” Id. He says that he felt “stings, someone forcing [his] head
down from [his] neck, another pulling [his] pants down, ears ringing and [his]
jaw not being able to close before [he] blacked out completely.” Id. The plaintiff
believes he was handcuffed more than one time because he could not defend
himself against blows to his face or the hand pressing on the side of his neck.
Id. The plaintiff has no recollection of being sedated or time at the hospital. Id.
at 5-6. He recalls only a “clapping when [he] woke up at a room with armed
men asking [him] questions while feeling groggy.” Id. at 6.
The plaintiff says that the members of the Racine Police Department that
he has named “are based of those mentioned of the alleged batter to a officer.”
Id. He says that he is not able to identify the officers who allegedly prevented
him from going to court on April 2, 2018, except for defendant Helmi Hamad
and an officer Leax (Leax is not named as a defendant). Id. According to the
plaintiff, was not booked or given a Wisconsin Department of Corrections
number. Id. He alleges that during his “unlawful stay” at the Racine County
Jail, he was “subjected to; pork, breaks of fasting, soundbites played at [his]
cell, no phone access without a third party, and threats of home invasion to
[the plaintiff] and Asia Barry.” Id. at 6-7. The plaintiff says that after his mother
paid his $100 bail on April 24, 2018, he eventually found a “rostor sheet,” but
that he didn’t see “any recognizable names of cellmates of the units [he] was
at.” Id. at 7. The plaintiff says that he wanted to “confirm the well being of Asia”
after she had contacted his mother and several mutual close friends. Id. The
plaintiff says that his attempts to contact Asia “during the case of 18CF00448”
“led to the cases of 18CV000178, 19CV000205 and currently 19CM001221.”
The plaintiff says that every case of his in Racine County violates the
First, Fourth, Sixth and Eighth Amendments of the Constitution and he wants
to contest the defendants’ inhumane treatment and prove that he is a “MAN
(and not 3/5ths human) in a federal court of law.” Id. at 7-8.
The plaintiff attached to the amended complaint seventy-nine pages of
exhibits, including police reports from the Racine Police Department
concerning an incident on March 29, 2018 involving the plaintiff and several of
the officers he mentioned in the complaint. Dkt. No. 5-1 at 9-42.
Report and Recommendation
After reviewing the amended complaint, Judge Joseph determined that
the plaintiff had stated a claim against some—but not all—of the defendants
and recommended the dismissal of those against whom the plaintiff had not
stated a claim. Dkt.k No. 7. Judge Joseph concluded that, “very liberally
construed,” the amended complaint stated a claim for excessive force or
unlawful arrest in violation of the Fourth Amendment under 42 U.S.C. §1983
against officers who were involved in the arrest of the plaintiff on March 29
2018—defendants Thill (dkt. no. 5-1 at 9-11), Neubauer (id. at 12-13), Dummer
(id. at 14-19), Amundsen (id. at 22-29), Longrie (id. at 30-32), Wassil (id. at 3335), Fenderson (id. at 36-39), Frieri Gaines (id. at 40-42), and Webb (id. at 15,
24, 30, 36). Dkt. No. 7 at 3.
Judge Joseph recommended that the court dismiss those defendants
who were not on the scene but who either photographed the plaintiff’s injuries
or reviewed other officers’ reports. Id. at 3-4. These officers included defendants
Brehm, Rivers, Smith, Spaulding and Herold. Id. She also recommended that
the court dismiss Hamad and Leax, noting that there was no defendant named
Leax and that the plaintiff had not provided enough information for the court to
infer that either defendant prevented the plaintiff from going to court. Id. at 4.
Finally, she recommended the dismissal of defendants Rudebusch, Mueller,
Christensen, Flancher, McClendon, Constantine, Goepel, Boyle, Larsen,
Kallenbach and VanHecke2 because the amended complaint failed to allege any
action (or inaction) by these individuals. Id.
Judge Joseph recommended the dismissal of VanHecke but did not refer to
him in her analysis. There are no allegations in the amended complaint against
The plaintiff filed a timely objection to the report and recommendation.
Dkt. No. 9. The basis for the objection is not clear, although the plaintiff
believes that each of these officers are responsible for the alleged violation of
his constitutional rights. He asserts that officer Brehm “is liable for the
sedation of a control substance and treatment during my time of a hospital
that [he] cannot recall after [his] handcuffed beating by Racine Police
Department during my search for HALO’s armed security.” Id. at 2. He asserts
that more officers may have been involved, including Mark J. Heifner, for
threats made “during [the plaintiff’s] time of illegal detention and now involved
in current case 19CM001877.” Id. He also suspects there “may have been
tampering and restructuring of police statements” by supervising officer Webb.
The plaintiff next states:
Of the tempering of my school laptop by Racine Police department
(on 4/11/2018 at 6:28 pm) with Asia Barry being the previous owner
I am afraid of her wellbeing more so than my own since she is a
resident of Racine county. I believe that we are under persecution of
those under the color of law as if we have 3/5th of the civil rights
applied to us. From even at the those acting under the enforcement
and color of law such as; Rudebusch, Mueller, Christensen,
Flancher, Boyle. Such as example, of Flancher forfeiture of my bail
for conditions not set under terms of my release and Antoinette L.
Rich’s stalling tactics with no production of rescue records which
was made by Officer Brehm. In addition, no reason was made for
Van Hecke of the Wisconsin Judicial Commission for his negligence
of my initial report on the violations of Wisconsin Supreme Court
rule 60 for his cause for it being outside of his jurisdiction for Racine
circuit court’s misconduct at the judicial level.
Id. at 2-3.
The plaintiff attached the docket sheet from Racine County Circuit Court
Case No. 2018CF000448, which indicates that Judge Faye M. Flancher was the
responsible official in that case, that Antoinette L. Rich was the prosecuting
attorney and that Jamie Marie McClendon was defense counsel. Dkt. No. 9-1 at
The plaintiff objects to the portion of Judge Joseph’s report
recommending dismissal of defendants Hamad, Rudebusch, Mueller,
Christensen, Flancher, McClendon, Constantine, Goepel, Boyle, Larsen,
Kallenbach, Brehm, Herold, Rivers, Spaulding, Smith and Van Hecke. Dkt No.
9 at 1. He explains that, because he does not have access to PACER, he must
“type, copy, and notarized [his] objection in order to comply with the rebuke of
the Magistrate’s plausible biased recommendation.” Id. The plaintiff cites
Wisconsin Supreme Court Rule 60 and says that he is currently facing
additional charges in Racine. Id. at 1-2.
The objection adds nothing to the plaintiff’s previous allegations against
these defendants except to say that Brehm is “liable for the sedation of a
control substance and treatment during” the plaintiff’s time in the hospital.
But he alleged in the amended complaint that he cannot recall being sedated or
the time spent in the hospital. Dkt. No. 5 at 5, 6. There is nothing in his
objection, amended complaint or attachments to suggest that he now has a
basis for asserting that Brehm, who arrived at the hospital to photograph the
plaintiff’s injuries, was responsible for sedating him with a controlled
substance while he was in the hospital. The plaintiff says he believes that
supervising officer Webb “may” have tampered with and restructured police
accounts but he doesn’t allege that Webb actually did those things or explain
what causes him to believe that Webb did those things. Mere speculation is not
enough even at the pleadings stage. Finally, the plaintiff says he believes that
other officers may have been involved such as Mark Heifner, but Heifner is not
A complaint must include a short, plain statement describing what each
defendant did or did not do to allegedly violate the plaintiff’s rights. It is not
enough to name an individual or to speculate that an individual may have
taken some action. The plaintiff must allege that the defendant was personally
involved in the deprivation of a constitutional right. Matz v. Kotka, 769 F.3d
517, 528 (7th Cir. 2014). In other words, to be liable for a constitutional
deprivation, the defendant must have caused or participated in the
constitutional deprivation. Pepper v. Vill. of Oak Park, 430 F.3d 806, 810 (7th
Cir. 2005). Moreover, a person is not liable simply because he was a
supervising officer. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
The court has reviewed the allegations in the amended complaint and
will adopt Judge Joseph’s recommendation. The plaintiff has not described any
acts taken by defendants Hamad, Rudebusch, Mueller, Christensen, Flancher,
McClendon, Constantine, Goepel, Boyle, Larsen, Kallenbach, Brehm, Herold,
Rivers, Spaulding, Smith and Van Hecke that would rise to a violation of the
plaintiff’s constitutional rights. Mueller and Flancher are judges in the Racine
County Circuit Court and Rudebusch is a court commissioner. The judges and
court commissioner who entered orders in the plaintiff’s cases are absolutely
immune from awards of damages for acts taken in their judicial capacities,
regardless of whether the plaintiff believes they made mistakes in their rulings.
See Myrick v. Greenwood, 856 F.3d 487, 488 (7th Cir. 2017).
Finally, the court agrees with Judge Joseph, that construing the
allegations in the complaint and the attachments very liberally, the plaintiff
has stated excessive force/false arrest claims against the remaining
Plaintiff’s Request for a Speedy Trial (Dkt. No. 21)
The plaintiff filed a motion for speedy trial of Case No. 19-cv-1318, and
attached a letter addressed to the Wisconsin Judicial Commission regarding
the Racine County Circuit Court. Dkt. No. 21. Assuming that the plaintiff is
demanding a speedy trial in this federal case, there is no right to a speedy trial
in a civil case. Only criminal defendants have a right to a speedy trial. 18
U.S.C. §3161. The plaintiff filed this lawsuit—he is not a criminal defendant,
but a plaintiff in a civil lawsuit. The court will deny the motion.
Plaintiff’s Request for Summary of Evidence and to Grant Asia Barry
Power of Attorney (Dkt. No. 25)
On September 21, 2020, the plaintiff filed a motion for a summary of the
evidence filed to date and asked the court to grant Asia Barry power of attorney
in the event he cannot continue the case. Dkt. No. 25. He explains that Barry is
his “company’s partner and asset’s heiress.” Id.
The court will deny this motion. First, the defendants have not been
served with the complaint. As a result, there is no evidence before the court
beyond the police reports and other documents the plaintiff himself has filed.
The court can provide the plaintiff with a copy of the docket but will not
summarize the documents the plaintiff has filed on his own behalf. Second, the
plaintiff asks the court to appoint Asia Barry as his power of attorney or coplaintiff. The Federal Rules of Civil Procedure require that a case must be
prosecuted in the name of the “real party in interest.” Fed. R. Civ. P. 17. The
plaintiff has alleged that certain defendants violated his constitutional rights by
using excessive force against him. Asia Barry has not filed any allegations in
this case. In fact, it appears that, at one point, Barry had a restraining order
against the plaintiff. Barry v. Troupe, Racine County Circuit Court Case No.
2019cv205. Nothing in the amended complaint or any of the filings suggests
that Barry desires to join in this case as a plaintiff (or in any capacity). The
court will deny this motion.
Proposed Amended Complaint (Dkt. No. 26)
The plaintiff filed an amended complaint on October 11, 2019, dkt. no. 5,
which Judge Joseph screened, dkt. no. 7. Over a year later, the plaintiff filed a
proposed amended complaint; he listed himself and “Asia M Barry as power of
attorney” as plaintiffs and named Fenderson, all other defendants and added
Jessica Lynott as a defendant. Dkt. No. 26. The plaintiff says that Lynott, an
Assistant District Attorney, violated Wis. Stat. §971.10(3c) during his
misdemeanor cases in Racine County. Id. at 3. He accuses Lynott of pushing
back court dates and attempting to “void” his not guilty plea with a competency
hearing. Id. For relief, the proposed amended complaint seeks “Standardize
humans detainment by law enforcement in the state of Wisconsin,” the creation
of a mental illness protocol, federal investigation of each of his cases, seeks
$8,000,008.01 (after taxes and in one payment), and the right to organize,
research and confide in Barry. Id. at 5.
To the extent that the plaintiff is asking the court to amend his
complaint a second time, the court will deny his request. It is procedurally
incorrect for a plaintiff to file a proposed amended complaint that refers to
another document but does not re-state the allegations against each defendant.
If a plaintiff wants to add a party to a complaint, he must reproduce the
complaint in full, with all the allegations against the former defendants as well
as the new allegations against any new defendants. This is because an
amended complaint takes the place of any prior complaints. The rules allow a
plaintiff to amend his complaint once as a matter of course, which the plaintiff
has already done. The plaintiff must ask the court’s permission to file any
amended complaints, and the plaintiff has not done so.
The plaintiff seeks to add the Assistant District Attorney assigned to two
cases which appear to have nothing to do with the alleged use of excessive
force during his arrest. The court is allowing the plaintiff to proceed against the
officers he alleges were involved with his arrest. Unrelated claims against
different defendants must be filed in a separate lawsuit. Owens v. Evans, 878
F.3d 559, 566 (7th Cir. 2017).
The plaintiff names an assistant district attorney who he claims is
moving to continue court dates and asking for a competency hearing. Like the
judges and court commissioner, a prosecutor is absolutely immune from suit
for actions taken in initiating and pursuing criminal prosecutions because the
conduct is “intimately associated with the judicial phase of the criminal
process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). Absolute
immunity applies even if the attorneys acted “in a manner flawed by grave
procedural error.” John v. Barron, 897 F.2d 1387, 1391 (7th Cir. 1990)).
The court will not allow the plaintiff to proceed on the proposed amended
Plaintiff’s Request for Bodycam Footage (Dkt. No. 32)
On February 3, 2021, the plaintiff filed a copy of his request to the
Racine Police & Fire Commission and Racine Affirmative Action & Human
Rights for bodycam footage. Dkt. No. 32. The plaintiff had a notary sign the
request and instructed the Commission to send the evidence to this court. Id.
That is not how discovery works in federal court. After the court orders the
complaint to be served on the defendants and after they have responded, the
court will order the parties to confer and file a Rule 26(f) plan—a scheduling
plan. The court will use that plan to set deadlines for the parties to exchange
initial disclosures and discovery and to file dispositive motions. At that point,
the parties may start to collect discovery, following the requirements in the
Federal Rules of Criminal Procedure. If the plaintiff filed this letter in the hope
that the court would order the Racine Police and Fire Commission to turn over
the report, his hope will not be realized; the court will not issue such an order.
Plaintiff’s Motion for In-Custody Speedy Trial (Dkt. No. 36)
On March 1, 2021, the plaintiff filed a motion for an in-custody speedy
trial demand. Dkt. No. 36. The court explained above that the plaintiff has no
right to an “in-custody speedy trial” in a civil case. The court will deny this
The court OVERRULES the plaintiff’s objections, dkt. no. 9 and ADOPTS
Magistrate Judge Joesph’s recommendation, dkt. no. 7.
The court ORDERS that defendants Helmi Hamad, Alice Rudebusch,
Emily S. Mueller, Samuel A. Christensen, Faye M. Flancher, Jamie M.
McClendon, Charles Constantine, Robert Goepel, Timothy D. Boyle, Kelly
Larsen, Terrance Kallenbach, Rachel A. Brehm, Steven R. Herold, Richard
Rivers, Joseph R. Spaulding, Michael E. Smith and Jeremiah C. Van Hecke are
The court DENIES the plaintiff’s request for a speedy trial. Dkt. No. 21.
The court DENIES the plaintiff’s request for summary of evidence and
that Asia Barry be granted power of attorney if the plaintiff cannot continue
with this case. Dkt. No. 25.
The court CONSTRUES the plaintiff’s proposed amended complaint as a
motion to amend the complaint and DENIES that motion. Dkt. No. 26.
The court DENIES WITHOUT PREJUDICE the plaintiff’s request for
bodycam footage. Dkt. No. 32.
The court DENIES the plaintiff’s motion for in-custody speedy trial. Dkt.
The court ORDERS the United States Marshal to serve a copy of the
amended complaint and this order on defendants Bennett F. Thill, Gary F.
Neubauer, Cody J. Dummer, Adam R. Amundsen, Natalie E. Longrie, Allen J.
Wassil, LaVontay Fenderson, A. Felicia Frieri Gaines, and Lennet Webb under
Federal Rule of Civil Procedure 4. The court advises the plaintiff that Congress
requires the U.S. Marshals Service to charge for making or attempting service.
28 U.S.C. §1921(a). The current fee for waiver-of-service packages is $8.00 per
item mailed. The full fee schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the U.S. Marshals
Service precisely because indigent plaintiffs do not have the funds to pay filing
fees, it has not made any provision for these service fees to be waived by either
the court or the U.S. Marshals Service. The court is not involved in collection of
The court ORDERS that the defendants must answer or otherwise
respond to the complaint within the time allowed by the Federal Rules of Civil
The court ORDERS that plaintiff must submit all correspondence and
United States District Court
Office of the Clerk
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
DO NOT MAIL ANYTHING DIRECTLY TO CHAMBERS. It will only delay the
processing of the case.
The plaintiff must communicate only with the defendants’ lawyer. The
parties may not begin discovery (asking each other for documents) until after
the defendants have answered or otherwise responded and the court has
issued a scheduling order setting deadlines for completing discovery and filing
dispositive motions. The plaintiff should keep a copy of every document she
files with the court. If the plaintiff’s address changes, he must notify the court
immediately; if he doesn’t, he may not receive important notices and
documents relating to her case. If the plaintiff does not file documents by the
deadlines the court sets, the court could dismiss his case for failure to
diligently prosecute it. Civil Local Rule 41(c) (E.D. Wis.).
Dated in Milwaukee, Wisconsin this 15th day of July, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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