Birkley v. Nitz et al

Filing 16

ORDER signed by Chief Judge Pamela Pepper on 11/14/2023. 11 Plaintiff's motion to add claims DENIED as to false imprisonment claim; GRANTED as to defamation of character claim. (cc: all counsel and mailed to Syris Birkley)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
SYRIS T. BIRKLEY,
Plaintiff,
v.

Case No. 23-cv-110-pp

LIAM NITZ, LT. STEVESON
and CAPTAIN HANNAH,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
TO ADD CLAIMS (DKT. NO. 11)
______________________________________________________________________________
Syris T. Birkley, who was incarcerated at the Milwaukee County Jail
when he filed this lawsuit and is representing himself, filed a complaint under
42 U.S.C. §1983 alleging that the defendants violated his constitutional rights.
On September 7, 2023, the court screened the complaint and allowed the
plaintiff to proceed on a due process claim against Lt. Steveson and Captain
Hannah based on allegations that they did not give the plaintiff an opportunity
to be heard or present witnesses at his disciplinary hearing, they were not
neutral about the plaintiff’s charges and the plaintiff spent at least sixty days
in segregation based on the guilty finding from the conduct report. Dkt. No. 10
at 6. The court also allowed the plaintiff to proceed on a due process claim
against Liam Nitz because if, as alleged, the plaintiff did not receive the process
due before and after his disciplinary hearing, then Nitz’s false accusation that
the plaintiff spit on him could be considered “arbitrary action” which also could
be a violation of the plaintiff’s right to due process. Id. at 6-7. The plaintiff has
1

filed a request to proceed on a false imprisonment claim and a defamation of
character claim, based on his complaint allegations.1 Dkt. No. 11.
The plaintiff’s filing states that he wants to add a “false imprisonment”
claim because he was “unlawfully and [sic] Milwaukee County Jail for and Seg
4D (hole) for ov[er] 60 plus day and months fighting said criminal cha[rg]es for
the f[al]se Information on the ‘Criminal Complaint’ by Nitz[.]” Id. He also says
also wants to add a defamation of character claim “due to his false statements
cause me harm by being put in the hole (4D Seg) for over 60 days.” Id. The
plaintiff adds that “this is ‘negligence’ by the above defendant(s) [and] this
caused det[ri]mental harm to me, to my reputation and the community w[h]ere
I had to defend my honor at trial w[h]ere I won.” Id. He concludes that he
wants to add a false imprisonment claim and a defamation of character claim
to the complaint. Id.
The complaint alleges that the plaintiff was a pretrial detainee when the
incidents described in the complaint occurred (Liam’s alleged false accusation
that the plaintiff spit on him, the conduct report, the disciplinary hearing and
the sixty-plus days in segregation). For purposes of a §1983 claim, false
imprisonment means detention without legal process. Cibulka v. City of
Madison, 448 F. Supp. 3d 1001, 1023 (W.D. Wis. 2020) (citing Brown v. Dart,
876 F.3d 939, 941 (7th Cir. 2017)). Under Wisconsin state law, “[f]alse
imprisonment is the unlawful and intentional restraint by one person of the

The plaintiff’s one-page filing is titled “Amend Complaint,” but he clarifies that
he wants to proceed on the existing complaint and add a claim. Dkt. No. 11.
1

2

physical liberty of another.” Buchanan v. Weaver, No. 12-cv-408, 2013 WL
12180997, at *4 (W.D. Wis. Dec. 23, 2013) (citing Strong v. City of Milwaukee,
38 Wis. 2d 564, 568 (1968)). The plaintiff already was detained when the
incident described in the complaint occurred, so he has not stated a claim for
false imprisonment under federal or state law. The due process claims upon
which the court allowed the plaintiff to proceed include his allegations that the
defendants’ actions caused him to spend time in “4D seg” at the jail. The
plaintiff has not stated a separate claim for false imprisonment based on these
allegations.
The plaintiff also wants to proceed on a defamation of character claim
under Wisconsin state law based on Nitz’s alleged false statements in the
criminal complaint. Under Wisconsin law, defamation claims require that “the
particular words complained of shall be set forth in the complaint.” Wis. Stat.
§802.03; see also Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). The
plaintiff may proceed on a claim for defamation of character and the court will
exercise supplemental jurisdiction over that state law claim. See 28 U.S.C.
§1367.
The court GRANTS IN PART AND DENIES IN PART the plaintiff’s
motion to add claims. Dkt. No. 11. The court DENIES the motion to the extent
the plaintiff asks to proceed on a false imprisonment claim. The court GRANTS

3

the motion regarding the plaintiff’s request to proceed on a defamation of
character claim under Wisconsin state law.
Dated in Milwaukee, Wisconsin this 14th day of November, 2023.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

4