T v. Milwaukee Police Department et al
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 4/26/2021. §2241 habeas petition DENIED. Case DISMISSED. The court DECLINES to issue certificate of appealability. (cc: all counsel and mailed to Valerie Thames)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
E.T., by mother
and next friend Valerie Thames,
Case No. 20-cv-170-pp
MILWAUKEE POLICE DEPARTMENT,
JANE/JOHN DOE, and
VEL PHILIPS CHILDREN DETENTION CENTER,
ORDER SCREENING AND DENYING HABEAS PETITION (DKT. NO. 1),
DISMISSING CASE AND DECLINING TO ISSUE A CERTIFICATE OF
On February 4, 2020, the petitioner filed a petition for writ of habeas
corpus under 28 U.S.C. §2241. Dkt. No. 1. The petitioner paid the $5.00 filing
fee. This order screens the petition, denies it and dismisses the case.
The petition lists “Ex rel Valerie Thames, on behalf of her minor child
E.T. by next friend Valerie Thames” as the petitioner. Dkt. No. 1 at 1. Ms.
Thames states that she is the biological parent of E.T. (who appears to be her
son). Id. at 3; see also id. at 4 (“… without reading him his Miranda rights …”)
(emphasis added). Under a subsection titled “Preliminary Injunction,” the
petitioner states that the respondents “should be immediately enjoined from
continuation the false imprisonment and the void jurisdiction of the Petitioner
minor E.T.,” and “are engaging in an unlawful restraint by of the physical
liberty of Petitioner.” Id. at 3. The petition lists three grounds for relief: (1)
“false arrest;” (2) a violation of E.T.’s Fourth Amendment right to be free from
unlawful seizures; and (3) deliberate indifference, excessive force and assault in
violation of the Eighth Amendment. Id. at 4-6.
Rule 4 Standard
Under Rule 1(b) of the Rules Governing Section 2254 Cases and Civil
Local Rule 9(a)(2) of the Local Rules for the Eastern District of Wisconsin, the
court applies the Rules Governing Section 2254 Cases to petitions for a writ
of habeas corpus under 28 U.S.C. §2241. Chagala v. Beth, No. 15-CV-531,
2015 WL 2345613, at *1 (E.D. Wis. May 15, 2015). Those rules require the
court to review, or “screen” the petition. Rule 4 of the Rules Governing Section
2254 Cases provides:
If it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk to
notify the petitioner. If the petition is not dismissed, the judge must
order the respondent to file an answer, motion or other response
within a fixed time, or to take other action the judge may order.
“The appropriate vehicle for a state pre-trial detainee to challenge his detention
is §2241.” Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015). While
§2241 allows a pretrial detainee to petition for habeas relief, the Younger
abstention doctrine limits the ability of a federal court to interfere with pending
state criminal prosecutions absent special circumstances. See, e.g., Olsson v.
O’Malley, 352 F. App’x. 92, 94 (7th Cir. 2009) (citing Younger v. Harris, 401
U.S. 37, 43-45 (1971)).
A court must allow a habeas petition to proceed unless it is clear that the
petitioner is not entitled to relief in the district court. At the screening stage,
the court expresses no view as to the merits of the petitioner's claims. The
court considers only whether the petitioner has stated cognizable grounds for
federal habeas relief and whether the petitioner has exhausted state court
Ms. Thames provided few facts. The petition states the following:
Respondents’ Milwaukee police kicked in the petitioner’s residential
door, seized the petitioner, placed the petitioner, a minor child in
handcuffs, without Defendants arrested the plaintiff without reading
him his Miranda rights, without consent of his biological parent took
the minor child to an adult interrogation room inside of the
Milwaukee Police headquarters, located at 749W State Street, and
though the petitioner and the petitioner biological mother asked for
the mother and a lawyer to be present, was denied both. The
whereabouts of the minor child is assumed to be with the Milwaukee
Police Department whom alleged that the minor E.T. would be at the
Vel Philips Children Detention center. The respondents are
fabricating a crime in order to justify the illegal and unlawful arrest
and detainment against the petitioner.
Dkt. No. 1 at 4. It also alleges that the respondents subjected E.T. to
“unnecessary and wanton infliction of pain, including damages to Petitioner’s
body, as a result of excessive force, and assault committed.” Id. at 5-6.
Ms. Thames’ Standing to File the Petition
Under 28 U.S.C. §1654, “[i]n all courts of the United States the parties
may plead and conduct their own cases personally or by counsel as, by the
rules of such courts, respectively, are permitted to manage and conduct causes
therein.” Under Federal Rule of Civil Procedure 17(c)(1), a minor can sue
through a general guardian, a committee, a conservator or a like fiduciary. Fed.
R. Civ. P. 17(c)(1)(A)-(D). Minors without such representatives “may sue by a
next friend or by a guardian ad litem.” Id. at (c)(2).
In habeas litigation, “next friend” standing “has long been an accepted
basis for jurisdiction in certain circumstances.” Whitmore v. Arkansas, 495
U.S. 149, 162 (1990). “Next friend” standing “is by no means granted
automatically to whomever seeks to pursue an action on behalf of another.” Id.
at 163. For “next friend” standing to apply, “[t]he burden is on ‘the next friend’
clearly to establish the propriety of [her] status and thereby justify the
jurisdiction of the court.” Id. at 164 (citing Smith by & through Missouri Pub.
Def. Comm’n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987)). That
burden requires a putative “next friend” to show (1) “an adequate explanation—
such as inaccessibility, mental incompetence, or other disability—why the real
party in interest cannot appear on his own behalf to prosecute the action,” id.
at 163 (citing Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir. 1989)); and (2)
that the “next friend” is “truly dedicated to the best interests of the person on
whose behalf [she] seeks to litigate.” Id. (citing Morris v. United States, 399 F.
Supp. 720, 722 (E.D. Va. 1975)); see also Bria Health Serv’s, LLC v. Eagleson,
950 F.3d 378, 384 (7th Cir. 2020). “[I]t has been further suggested that a ‘next
friend’ must have some significant relationship with the real party in interest.”
Id. at 163-64 (citing Davis v. Austin, 492 F. Supp. 273, 275-76 (N.D. Ga.
1980)). “These limitations on the ‘next friend’ doctrine are driven by the
recognition that ‘[i]t was not intended that the writ of habeas corpus should be
availed of, as a matter of course, by intruders or uninvited meddlers, styling
themselves as next friends.’” Id. at 164 (quoting United States ex rel. Bryant v.
Houston, 273 F. 915, 916 (2d Cir. 1921)).
One cannot file a habeas petition on behalf of a detainee if that detainee
could file the petition; a “next-friend applicant, among other things, must
therefore explain why the detainee did not sign and verify the petition.” Lane,
870 F.3d at 1253 (citing Weber v. Garza, 570 F.2d 511, 513 (5th Cir. 1978)).
Without such an explanation, “the court is without jurisdiction to consider the
petition.” Id. (citing Weber, 570 F.2d at 513).
Ms. Thames has alleged that she is E.T.’s mother and that E.T. is a
minor. Taking the allegations of the petition as true, Ms. Thames has
established that she has a significant relationship with E.T. The court can infer
from the sparse facts that the reason E.T. could not file the petition on his own
behalf is because was in custody. Ms. Thames does not appear to have known
exactly where E.T. was being held—she suspects it was at Children’s Court (the
Vel Philips Center). Perhaps that is why E.T. did not sign or verify the petition.
Construing the allegations in the petition in the light most favorable to the
petitioner, the court will assume that Ms. Thames is qualified to act as E.T.’s
Pro Se Status
While a parent may sue on behalf of a child as a guardian under Rule
17(c), a parent who is not an attorney cannot do so without counsel. Amaya v.
Pitner, 130 F. App’x. 25, 27 (7th Cir. 2005) (citing Navin v. Park Ridge Sch.
Dist., 270 F.3d 1147, 1149 (7th Cir. 2001)). “Normally, representative parties
such as next friends may not conduct litigation pro se; pleadings may be
brought before the court only by parties or their attorney.” Elustra v. Mineo,
595 F.3d 699, 704 (7th Cir. 2010) (citing 28 U.S.C. §1654; Fed. R. Civ. P. 11(a);
Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir. 1986)).
Ms. Thames filed this petition pro se—without counsel. She does not
indicate that she is a lawyer. She needs an attorney to prosecute a habeas
petition on behalf of her minor child.
Even if a lawyer had filed the petition on Ms. Thames’ (and E.T.’s) behalf,
it appears from the limited facts that the court would be required to dismiss
the petition. Ms. Thames implies that the police entered E.T.’s house without a
warrant, and arrested him without a warrant, for a crime she says the police
fabricated. If E.T. is still in custody,1 that likely means that there are criminal
charges pending against him and he is awaiting adjudication on those charges.
Ms. Thames filed the petition on February 4, 2020. While the court deeply
regrets that its heavy case load prevented it from screening the petition sooner,
it notes that Ms. Thames has not contacted the court or filed anything further
since the date on which she filed the petition. E.T. may no longer be in custody,
in which case this §2241 petition would be moot.
E.T. may challenge the constitutionality of the officers’ entry into his home and
his arrest—and may seek release through bond or acquittal—in state court.
The doctrine of Younger abstention limits this federal court’s ability to
interfere with ongoing state-court criminal proceedings absent special
circumstances. See, e.g., O’Malley, 352 F. App’x at 94 (citing Younger, 401 U.S.
at 43-45). Exceptional circumstances exist where irreparable damage would
occur, such as claims of prosecutorial harassment and prosecutions brought in
bad faith. Younger, 401 U.S. at 49. Generally, relief is available only after the
petitioner has exhausted state-court remedies. Olsson v. Curran, 328 F. App’x.
334, 335 (7th Cir. 2009). Exceptional circumstances do not exist when the
threatened injury “is solely ‘that incidental to every criminal proceeding
brought lawfully and in good faith.’” Younger, 401 U.S. at 49 (citing Douglas v.
City of Jeannette, 319 U.S. 157, 164 (1943)).
Ms. Thames did not include a state-court case number, so the court
cannot determine whether E.T. currently is subject to ongoing state-court
criminal proceedings. If he is, he has what the United States Supreme Court
has characterized as “an acute, live controversy with the State and its
prosecutor.” Younger, 401 U.S. at 41.
“Ex parte Young, 209 U.S. 123, . . . and following cases have
established the doctrine that, when absolutely necessary for
protection of constitutional rights, courts of the United States have
power to enjoin state officers from instituting criminal actions. But
this may not be done, except under extraordinary circumstances,
where the danger of irreparable loss is both great and immediate.
Ordinarily, there should be no interference with such officers;
primarily, they are charged with the duty of prosecuting offenders
against the laws of the state, and must decide when and how this is
to be done. The accused should first set up and rely u[p]on his
defense in the state courts . . . .”
Id. at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 243-44 (1926)).
This federal court could not interfere with those ongoing state criminal
Ms. Thames has not cited extraordinary circumstances. She asserts that
E.T. has not exhausted his remedies in state court because no adequate
remedy exists and she says that any attempt to exhaust would be futile. Dkt.
No. 1 at 3. She does not explain why E.T. cannot file a motion to quash his
arrest, he may challenge the sufficiency of the evidence by having a jury trial or
may seek release from custody from the state-court judge.
The habeas petition also is premature if E.T. is subject to ongoing statecourt criminal proceedings. “A federal court will not hear a state prisoner's
habeas claim unless the prisoner has first exhausted his state remedies by
presenting the claim to the state courts for one full round of
review.” Crutchfield v. Dennison, 910 F.3d 968, 972 (7th Cir. 2018)
(citing Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2064 (2017)). Ms. Thames
has not explained whether E.T. is subject to ongoing state-court criminal
proceedings, whether he has had his constitutional claims determined by the
trial court, or whether he has presented his claims to the court of appeals or
sought review of the court of appeals’ decision in the Wisconsin Supreme
Court. Without that information, the court cannot determine whether, as Ms.
Thames indicates, exhaustion would be futile.
Ms. Thames seeks relief for E.T. under 28 U.S.C. §2241. Dkt. No. 1.
While §2241 is the appropriate statute for a pretrial detainee to use to
challenge the fact of his confinement, see Jackson v. Clements, 796 F.3d 841,
843 (7th Cir. 2015), it is not the appropriate statute for him to use to challenge
the conditions of his confinement (Ms. Thames alleges that E.T.’s confinement
constitutes cruel and unusual punishment). See Debruzzi v. Williams, Nos.
3:20-cv-00596-SMY, 3:20-cv-00783-SMY, 2020 WL 5110714, at *2 (S.D. Ill.
Aug. 31, 2020) (citing Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki
v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994); Glaus v. Anderson, 408 F.3d
382, 386-87 (7th Cir. 2005)). An incarcerated person who wishes to challenge
the conditions of confinement must file a lawsuit under 42 U.S.C. §1983. Id.
(citing Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999)).
Failure to State a Claim
Finally, the court has noted that Ms. Thames provided little detail about
what happened to E.T. She does not explain the date on which these events
occurred. She does not say what the police accused E.T. of doing. She says that
the respondents hurt E.T., but does not say what they did to hurt him or how
he was injured. Even if an attorney had filed the petition for Ms. Thames, and
even if the petition was not asking this federal court to interfere in a state
criminal proceeding by seeking the release of what appears to have been a
person incarcerated in state custody, Ms. Thames has not stated sufficient
facts to allow her to proceed.
This is not Ms. Thames’ first time in federal court. This is the fourth case
Ms. Thames has filed in this district. She previously was a plaintiff in the
following three cases: Charles Griffin, Jr., et al. v. City of Milwaukee, et al.,
Case No. 05-cv-510 (dismissed on August 11, 2005); Gabriel Griffin, et al. v.
State of Wisconsin, et al., Case No. 06-cv-203 (dismissed January 18, 2007);
Thames v. City of Milwaukee, et al., Case No. 07-cv-12 (dismissed May 22,
2007). She should be aware of the fact that she needs to state sufficient facts
about the who, what, when, where and why of her allegations in order to
Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court
must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotations omitted). The court declines to issue a certificate of
appealability, because reasonable jurists could not debate that the petition
does not warrant habeas relief under 28 U.S.C.§ 2241.
The court DENIES the petition for writ of habeas corpus under 28 U.S.C.
§2241. Dkt. No. 1.
The court ORDERS that this case is DISMISSED. The clerk will enter
Dated in Milwaukee, Wisconsin this 26th day of April, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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