Yeoman v. Fry et al

Filing 51

SCREENING ORDER re 50 Plaintiff's Second Amended Complaint signed by Judge J P Stadtmueller on 1/28/2025. 49 Plaintiff's Motion for Extension of Time is DENIED as moot. Defendants Racine County Sheriff's Office and Township of Yorkville are DISMISSED from this action. Plaintiff may PROCEED on: a Fourth Amendment malicious prosecution claim and a Wisconsin state law malicious prosecution claim against Fry, Embrey, and Doe Defendants; a Monell claim agai nst Racine County; and a negligent supervision state law claim against Schmaling. USMS to SERVE a copy of Plaintiff's Second Amended Complaint and this Order on Defendants Schmaling and Racine County. Defendants to FILE a responsive pleading. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Joseph J Yeoman at Redgranite Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH J. YEOMAN,
Plaintiff,
v.

Case No. 23-CV-188-JPS

JON FRY, WILLIAM EMBREY, JOHN
DOE, JOHN DOE 1, RACINE
COUNTY, RACINE COUNTY
SHERIFF’S OFFICE, TOWNSHIP OF
YORKVILLE, and CHRISTOPHER
SCHMALING,

ORDER

Defendants.

Plaintiff Joseph Yeoman, an inmate confined at Redgranite
Correctional Institution filed a pro se complaint under 42 U.S.C. § 1983
alleging that his constitutional rights were violated. ECF No. 1. On February
12, 2024, the Court screened Plaintiff’s amended complaint and allowed
him to proceed on various claims. ECF No. 15. On September 26, 2024, the
Court granted Plaintiff leave to file an amended complaint. ECF No. 46.
Following an extension of time, Plaintiff filed a second amended complaint
on November 19, 2024. ECF No. 50. The Court will accordingly deny as
moot Plaintiff’s second motion for an extension of time to file an amended
complaint, ECF No. 49. This order screens the second amended complaint.
1.

FEDERAL SCREENING STANDARD
Under the Prison Litigation Reform Act, the Court must screen

complaints brought by prisoners seeking relief from a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

The Court must dismiss a complaint if the prisoner raises 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. § 1915A(b).
In determining whether a complaint states a claim, the Court applies
the same standard that applies to dismissals under Federal Rule of Civil
Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing
Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir.
2012)). A complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must contain enough facts, accepted as true, to “state a claim for
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows a
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States and that whoever deprived him of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).

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2.

PLAINTIFF’S ALLEGATIONS
On August 3, 2016, Plaintiff was a passenger in a vehicle in Racine

County, in the town of Yorkville, when an accident occurred. ECF No. 50 at
7. Another person was driving Plaintiff’s vehicle at the time, a maroon 2002
Pontiac Montana Minivan, and it was struck from behind on a local
highway. Id. The vehicle that struck the car was a blue Dodge Ram SUV of
an unknown year. Id. The driver of the vehicle that hit Plaintiff’s car was a
Caucasian male in his late forties and the passenger of that car was a
Caucasian female in her mid-thirties. Id. The driver of Plaintiff’s vehicle,
Stephan Eary (“Eary”), was a Native American male in his early thirties. Id.
The accident caused Plaintiff’s vehicle to crash into the median at sixty
miles per hour. Id. Plaintiff’s vehicle was damaged and Eary pulled off the
road at the closest exit for safety purposes. Id.
Eary pulled into a Kwik Trip gas station and parked Plaintiff’s
vehicle. Id. The other vehicle involved in the accident also pulled into the
gas station. Id. Plaintiff stepped out of the vehicle and approached the man
who struck his vehicle. Id. Plaintiff asked if the man was alright and then
asked if he had a license and insurance. Id. The man replied that the vehicle
did not belong to him and that he did not have a driver’s license. Id. Plaintiff
then walked into the gas station and asked the clerk to call the police. Id.
Plaintiff returned to his vehicle, and Eary had fled the scene. Id. Plaintiff
approached his vehicle and saw that Eary had left the keys on the passenger
seat. Id. Plaintiff retrieved the keys, shut and locked the doors to the vehicle,
and waited outside for the police to arrive. Id.
As the driver who struck Plaintiff’s vehicle exited the gas station, a
Racine County Sheriff squad car pulled into the parking lot. Id. Defendant
Racine County Sheriff Jon Fry (“Fry”) stepped out of the vehicle and
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proceeded to walk between Plaintiff and the other driver. Id. Fry asked if
the van belonged to Plaintiff, who responded affirmatively. Id. Plaintiff then
pointed to the other driver and said, “That is the man who hit me.” Id.
Absent any investigation or warning, Fry grabbed Plaintiff by the right arm
and twisted it behind his back. Id. at 8. Seconds later, Fry threw Plaintiff to
the ground, causing severe pain to his face and head. Id. Fry punched and
elbowed Plaintiff in the head over thirty times while screaming profanity
and racial slurs, such as “sand [N-word]” and “towel head.” Id. While
detaining Plaintiff, Fry spit on his head as he kneeled on Plaintiff’s neck and
restricted his breathing. Id. Plaintiff struggled to tell Fry that he could not
breath. Id. While lying on his stomach, face-first on the ground and
handcuffed, Fry continued to beat Plaintiff as a second sheriff showed up.
Id. Defendant Deputy William Embrey (“Embrey”) watched as Fry
continued to assault Plaintiff. Id. at 8. For no reason, Embrey held a taser to
Plaintiff’s head and threatened to shoot, repeatedly yelling, “I will shoot
you [N-word].” Id. Fry struck Plaintiff in the head several more times
without cause. At no time did Plaintiff resist or struggle with either
defendant. Id.
Fry and Embry performed a cursory search of Plaintiff. Fry obtained
the keys to Plaintiff’s vehicle, his wallet containing his driver’s license, and
a necklace. Id. No contraband was found on Plaintiff during the search. Id.
Plaintiff was placed in the back of a squad car for over ninety minutes while
law enforcement used the keys to unlock and illegally search and seize
Plaintiff’s legally

parked vehicle.

Id.

Plaintiff’s vehicle

and

its

compartments were searched without his consent or a search warrant. Id.
The person who hit Plaintiff’s vehicle was allowed to leave the parking lot

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and, to this day, no one knows the man’s identity. Id. This fact is
documented in circuit court records and police reports. Id.
On August 4, 2016, somewhere between the hours of 2:00 a.m. and
4:00 a.m., Fry transported Plaintiff to the hospital. Id. Plaintiff was forced to
submit to a blood draw. Id. This incident took place hours after the
warrantless search of Plaintiff’s minivan. Id. After the blood draw, Fry
aggressively beat Plaintiff in the hospital parking lot after he was placed in
the back seat of the squad car and handcuffed. Id. Fry repeatedly struck
Plaintiff in the back of the head with a blunt object until he was
unconscious. Id.
While still unconscious, Plaintiff was taken to Racine County Jail,
cavity searched, fingerprinted, and left on the floor of the observation cell,
still unconscious, for days. Id. at 9. Plaintiff was refused medical treatment
for weeks after the incident. Id. Plaintiff’s booking photo shows the bruising
and cuts and that he was completely unconscious during the booking
process. Id.
During the illegal search of Plaintiff’s car, unknown Racine County
law enforcement officials seized numerous items that went undocumented,
and Plaintiff received no receipt. Id. at 9. These items included: Plaintiff’s
deceased grandmother’s gold necklace, a platinum and diamond bracelet,
a diamond faceted men’s engagement ring, CDs and DVDs, two laptop
computers, a video recorder, construction and other power tools, vacation
photographs of Plaintiff’s autistic child, personal documents, birth
certificates, social security card, and other items of personal and highly
confidential nature that could not reasonably be considered within the
scope of the warrantless search. Id. The search occurred while Plaintiff was
in the squad car on scene. Id. Approximately seven to ten sheriff deputies
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participated in the warrantless search. Id. No audio or video of the search
exists. Id. There were numerous discrepancies in the submitted police
affidavits, including mischaracterizations, exaggerations, omissions, and
fabrications that could not have been unintentional. Id.
Fry falsified police reports and wrongfully issued Plaintiff several
citations, including a DUI as a cover charge with the intent to disguise their
own misconduct. Id. at 10. The record is completely devoid of any criminal
activity, no indicia of impairment or a field sobriety test, and Plaintiff was
never witnessed driving the vehicle. Id. Plaintiff was located outside the
vehicle when police arrived on scene. Id.
Days before Plaintiff’s evidentiary hearing on November 14, 2016,
Fry visited Plaintiff in Racine County Jail at approximately 3:00-4:00 a.m. to
deliver Plaintiff’s blood draw test results in person. Id. Fry attempted to
intimidate Plaintiff with verbal threats of further isolation in segregation
confinement and physical abuse. Id. During the hearing, the officers
revealed that Plaintiff had the option of denying consent and could have
declined to have the vehicle transported with him. Id. There is nothing in
the record, however, that the officers asked for consent to search Plaintiff’s
vehicle or what would have happened to the vehicle after Plaintiff was
placed in the squad car. Id. Plaintiff provides that his vehicle could have
remained parked at the gas station or that it could have been towed to his
home instead of searched. Id. Despite no probable cause for the arrest and
searches, the circuit court denied Plaintiff’s motion to suppress on January
12, 2017. Plaintiff served 245-300 days of wrongful custody and was
acquitted on December 10, 2021. Id. at 10–11.
Fry, Embrey, and approximately seven to ten Doe defendants seized
him and illegally searched his vehicle. Id. at 11. Approximately two weeks
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after Plaintiff’s arrest, two unknown officers in the Racine County Sheriff’s
Office encouraged Eary to provide a false statement implicating Plaintiff as
the driver of the vehicle. Id. The officers forced Eary to do so under the
threat of criminal charges. Id. This coerced information allowed the DA’s
office to continue the malicious prosecution of Plaintiff. Id. All officers were
aware that evidence found linked Eary to the illegally obtained evidence.
Id. Eary was arrested after attempting to flee the scene of the gas station. Id.
Racine County Jail officers found a knife and a bullet in his pocket. Id. This
material issue of fact was suppressed exculpatory evidence in violation of
Plaintiff’s constitutional rights. Id. Plaintiff met Eary less than twenty-four
hours prior to the car accident. Id. Plaintiff was in the process of moving at
the time and was allowing Eary to drive a mutual friend, Gregory
Thompson (“Thompson”), a ride to work in Chicago. Id. Thompson is a
material witness that Eary was driving the minivan that day. Id.
Plaintiff

alleges

that

Defendants

Christopher

Schmaling

(“Schmaling”) and Racine County Sheriff’s Office (“RCSO”) are liable for
the harm he sustained. Id. at 13–14. These defendants knew or should have
known that their employees were violent and disposed to maliciously
prosecute members of the public. Id. at 14. The defendant officers became
vicious and demonstrated an “ungovernable temper.” As such, Schmaling
and RCSO were negligent in the hiring and supervision of their officers. Id.
Plaintiff also alleges that the Township of Yorkville and Racine
County have an illegal custom to pursue suspects by any means necessary
to obtain a conviction. Id. at 16. These customs are the moving force behind
the harms Plaintiff suffered. Id. Specifically, Plaintiff alleges the following
illegal policies and practices: (1) a code of silence where officers refuse to
report unconstitutional and criminal misconduct of other officers; (2) failure
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to train, supervise and discipline officers in regards to unconstitutional and
criminal misconduct; (3) the failure to adequately investigate and
substantiate allegations of unconstitutional conduct; and (4) the failure to
adequately discipline police officers that engage in unconstitutional and
criminal misconduct. Id. at 17–18.
3.

ANALYSIS1
First, the Court finds that Plaintiff may proceed on a Fourth

Amendment malicious prosecution claim against Defendants Fry, Embrey,
and Doe defendants. In Manuel v. City of Joliet, 580 U.S. 357 (2017), the
Supreme Court clarified that “detention without probable cause violates
the Fourth Amendment ‘when it precedes, but also when it follows, the start
of legal process in a criminal case.’” Lewis v. City of Chicago, 914 F.3d 472,
474 (7th Cir. 2019) (quoting Manuel, 580 U.S. at 358); see also Kuri v. City of
Chicago, 990 F.3d 573, 575 (7th Cir. 2021) (“Manuel held that the Fourth
Amendment supplies the basis for a [wrongful-detention] claim until the
suspect is either convicted or acquitted.”). More recently, the Supreme
Court held in Thompson v. Clark, 596 U.S. 36 (2022), that a Fourth
Amendment malicious prosecution claim “does not require the plaintiff to
show that the criminal prosecution ended with some affirmative indication

The Court notes that it analyzes the claims that Plaintiff brings in the
second amended complaint. Though there are factual allegations that suggest
excessive force, false arrest, and illegal searches, it appears Plaintiff does not
intend to proceed on those claims. The Court had previously allowed those claims
to proceed after screening an earlier complaint. ECF No. 15. However, following a
motion to dismiss, the Court instructed the parties to meet and confer regarding
the filing of an amended complaint. ECF No. 46. In that order, the Court noted
various claims were likely barred by the statute of limitations. Id. As such, the
Court does not consider these claims in its analysis because Plaintiff clearly does
not assert them in this instance. The Court sincerely appreciates the parties’ efforts
in working together to resolve these issues and to preserve judicial resources.
1

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of innocence.” Id. at 49. Instead, “[a] plaintiff need only show that the
criminal prosecution ended without a conviction.” Id. Following Thompson,
the Seven Circuit considered a federal malicious prosecution claim in a case
where the district court had previously analyzed it only under Wisconsin
law. See Evans v. Matson, No. 23-2954, 2024 WL 2206638, at *2 (7th Cir. May
16, 2024). It clarified that a Fourth Amendment malicious prosecution claim
arises if a criminal prosecution “(1) was instituted without probable cause;
(2) for a “malicious” motive—a purpose other than bringing the defendant
to justice; and (3) “ended without a conviction.” Id. (citing Thompson, 596
U.S. at 44, 49.
Here, Plaintiff alleges that Fry, Embrey, and various Does lacked
probable cause to arrest him, knowingly submitted false police reports, and
fabricated evidence. Plaintiff further alleges that the State later dismissed
those charges due to a lack of evidence and that he suffered significant
injury as a result of the illegal pretrial detention. At the pleading stage, the
Court finds that Plaintiff may proceed against Fry, Embrey, and Doe
defendants for a Fourth Amendment malicious prosecution claim.
Second, Plaintiff also brings a Wisconsin state-claim for malicious
prosecution. At this early stage, the Court will exercise its supplemental
jurisdiction under 28 U.S.C. § 1367(a). Establishing malicious prosecution
under Wisconsin law requires proof of six elements: (1) there must have
been a prior institution or continuation of some regular judicial proceedings
against the plaintiff in this action for malicious prosecution; (2) such former
proceedings must have been by, or at the instance of, the defendant in this
action for malicious prosecution; (3) the former proceedings must have
terminated in favor of the defendant therein, the plaintiff in the action for
malicious prosecution; (4) there must have been malice in instituting the
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former proceedings; (5) there must have been want of probable cause for
the institution of the former proceedings; and (6) there must have been
injury or damage resulting to the plaintiff from the former proceedings.
Wisconsin Pub. Serv. Corp. v. Andrews, 2009 WI App 30, ¶ 23, 766 N.W.2d
232, 238. Similar to its analysis for the federal claim, the Court finds that, at
the pleading stage, Plaintiff may proceed against Fry, Embrey, and Doe
defendants for a Wisconsin state-law malicious prosecution claim.
Third, the Court does not find that Plaintiff states a due process
violation against any defendants for the fabrication of evidence.
“Allegations of evidence fabrication may state a colorable due-process
claim.” Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016). However, a
claim for unlawful pretrial detention “rests exclusively on the Fourth
Amendment,” not the Fourteenth. Lewis v. City of Chicago, 914 F.3d 472, 478
(7th Cir. 2019) (emphasis in original); see also DeLaRosa v. Village of
Romeoville, No. 23 CV 7049, 2024 WL 1579394, at *2 (N.D. Ill. Apr. 11, 2024)
(“Because the plaintiff’s unlawful pretrial detention and unlawful seizure
claims fall squarely within the ambit of the Fourth Amendment, Counts XIII
and XIV are dismissed.”). “[U]nlike wrongful pretrial detention claims
based on fabricated evidence, fabrication-based wrongful conviction claims
implicate due process.” Id. (citing Lewis, 914 F.3d at 479–80). Here, Plaintiff
is already proceeding on a Fourth Amendment claim. Plaintiff does not,
however, allege that he was convicted, and therefore a due process
violation for the fabrication of evidence is therefore inapplicable.
Fourth the Court finds that Plaintiff may proceed on a Monell claim
against Defendant Racine County. Section 1983 grants a private right of
action against a “person” who acts under color of state law to deprive
another of rights under federal law, including the Constitution. A key part
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of § 1983’s doctrinal structure is the difference between individual and
governmental liability. In Monell v. Department of Social Services of City of
New York, 436 U.S. 658 (1978), the United States Supreme Court found that
a plaintiff may proceed against a municipal government so long as a
constitutional violation was caused by: (1) an express government policy;
(2) a widespread and persistent practice that amounted to a custom
approaching the force of law; or (3) an official with final policymaking
authority. 436 U.S. at 690–91; Glisson v. Ind. Dep't of Correction, 849 F.3d 372,
379 (7th Cir. 2017) (en banc).
Here, Plaintiff alleges that Racine County’s customs and practices
caused the harm of the unconstitutional actions of Racine County officers.
Plaintiff alleges a number of specific unconstitutional customs and practices
that caused his injuries. At the pleading stage, the Court finds Plaintiff’s
allegations are sufficient to proceed against Racine County for a Monell
claim. The Court will not, however, allow Plaintiff to proceed against the
Township of Yorkville. Plaintiff alleges that the officers involved in the
constitutional violations are Racine County Employees. Plaintiff’s arrest
took place in Yorkville; however, the Court is unable to discern any factual
allegations suggesting how Yorkville as a municipality caused the alleged
constitutional violations. As such, the Court will dismiss the Township of
Yorkville for the failure to state a claim against it. The Court will similarly
dismiss Defendant RCSO because it is not a “person” for the purposes of
§ 1983 and therefore not a suable entity. See Smith v. Knox Cnty. Jail, 666 F.3d
1037, 1040 (7th Cir. 2012) (“[T]he district court was correct that, in listing
the Knox County Jail as the sole defendant, [Plaintiff] named a non-suable
entity.”).

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Finally, the Court will allow Plaintiff to proceed on a state law
negligent supervision claim against Schmaling. Negligent supervision is an
actionable tort in Wisconsin where “the failure of the employer to exercise
due care was a cause-in-fact of the wrongful act of the employee that in turn
caused the plaintiff's injury.” Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233,
238 (Wis. 1998). The few Wisconsin courts to consider the issue appear to
find negligent supervision distinct from general negligence, and therefore
not duplicative. See Hansen v. Texas Roadhouse, Inc., 827 N.W.2d 99, 108 (Wis.
Ct. App. 2012) (treating the two causes of action as distinct and holding that
a jury’s affirmance of punitive damages in a negligent supervision action
did not imply a cause of action for general negligence, which was never
submitted to the jury); see also John Doe 1 v. Archdiocese of Milwaukee, 734
N.W.2d 827, 837–38 (Wis. 2007) (holding that, for statute of limitations
purposes, negligent supervision is a derivative claim arising from general
negligence, but not foreclosing both). At the pleading stage, the Court will
allow Plaintiff to proceed against Schmaling for negligent supervision.
4.

CONCLUSION
In light of the foregoing, the Court finds that Plaintiff may proceed

on the following claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: Fourth Amendment malicious prosecution claim against
Fry, Embrey, and Doe defendants.
Claim Two: Wisconsin state-law claim for malicious prosecution
against Fry, Embrey, and Doe defendants.
Claim Three: Monell claim against Racine County.
Claim Four: Negligent

supervision

Schmaling.

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state-law

claim

against

Accordingly,
IT IS ORDERED that Plaintiff’s motion for an extension of time to
file an amended complaint, ECF No. 49, be and the same is hereby DENIED
as moot;
IT IS FURTHER ORDERED that Defendants Racine County
Sheriff’s Office and Township of Yorkville be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that the U.S. Marshals Service shall
serve a copy of the second amended complaint, ECF No. 50, and this order
upon Defendants Schmaling and Racine County pursuant to Federal Rule
of Civil Procedure 4. Plaintiff is advised that Congress requires the U.S.
Marshals Service to charge for making or attempting such service. 28 U.S.C.
§ 1921(a). Although Congress requires the Court to order service by the U.S.
Marshals Service, it has not made any provision for these fees to be waived
either by the Court or by the U.S. Marshals Service. 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). The U.S. Marshals Service will
give Plaintiff information on how to remit payment. The Court is not
involved in collection of the fee;
IT IS FURTHER ORDERED that Defendants file a responsive
pleading to the second amended complaint, ECF No. 50; and
IT IS FURTHER ORDERED if Defendants contemplate a motion to
dismiss, the parties must meet and confer before the motion is filed.
Defendants should take care to explain the reasons why they intend to
move to dismiss the second amended complaint, and Plaintiff should
strongly consider filing an amended complaint. The Court expects this
exercise in efficiency will obviate the need to file most motions to dismiss.
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Indeed, when the Court grants a motion to dismiss, it typically grants leave
to amend unless it is “certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted.” Harris v. Meisner,
No. 20-2650, 2021 WL 5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015)). Therefore, it is in both parties’ interest to discuss the
matter prior to motion submissions. Briefs in support of, or opposition to,
motions to dismiss should cite no more than ten (10) cases per claim. No
string citations will be accepted. If Defendants file a motion to dismiss,
Plaintiff is hereby warned that he must file a response, in accordance with
Civil Local Rule 7 (E.D. Wis.), or he may be deemed to have waived any
argument against dismissal and face dismissal of this matter with prejudice.
Dated at Milwaukee, Wisconsin, this 28th day of January, 2025.
BY THE COURT:

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

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