Washington v. Cepress et al

Filing 9

SCREENING ORDER re #7 Plaintiff's Amended Complaint signed by Judge J P Stadtmueller on 3/26/2024. #2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as specified. Clerk of Court is DIRECTED to administratively close this action. Plaintiff must FILE a motion to reopen this case within 90 days of the conclusion of his state court proceedings; failure to do so will result in dismissal of this action. See Order. (cc: all counsel, via mail to Tiron Washington with prisoner and pro se guides and to Sheriff (order only) at Kenosha County Detention Center)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TIRON WASHINGTON,

v.

Plaintiff,

TIMOTHY CEPRESS, ERIC
KUKOWSKI, LORN ANSCHUTZ,
DETECTIVE ZELLER, HEIDI
NEISEN, NATHANAEL MORENZ,
JOHN/JANE DOES, and KENOSHA
COUNTY,

Case No. 24-CV-153-JPS

ORDER

Defendants.
Plaintiff Tiron Washington, an inmate confined at Kenosha County
Detention Center, filed a pro se complaint under 42 U.S.C. § 1983 alleging
that the defendants violated his constitutional rights during an illegal
search. ECF No. 1. Plaintiff filed an amended complaint, ECF No. 7, prior
to this screening order, and the Court will therefore treat it as the operative
complaint. This Order resolves Plaintiff’s motion for leave to proceed
without prepaying the filing fee and screens his amended complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing

fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On February 12, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $53.94. ECF No. 5. Plaintiff paid that fee on March 4,
2024.1 The Court will grant Plaintiff’s motion for leave to proceed without
prepaying the filing fee. ECF No. 2. He must pay the remainder of the filing
fee over time in the manner explained at the end of this Order.
2.

SCREENING THE AMENDED COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, 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)

Plaintiff paid $84.00 on this date. The Court’s instructions below to collect
the full filing fee will reflect this payment.
1

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(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)).
2.2

Plaintiff’s Allegations

Plaintiff’s allegations revolve around his arrest and detention in
Kenosha County. ECF No. 7. Plaintiff alleges that Defendants illegally
searched his residence during a homicide investigation. Id. at 3. The illegal
search allegedly occurred on December 10, 2021. Id. Public records show
that a criminal complaint was filed against Plaintiff in Kenosha County on
December 13, 2021, for First-Degree Intentional Homicide, among other
crimes.2 Public records also show that this criminal case is still pending. The
Court will not elaborate on Plaintiff’s allegations further since, as discussed
below, the Court finds that Plaintiff’s case is barred by the Younger
abstention doctrine.

See State of Wisconsin v. Washington, Kenosha Cnty. Case No. 2021CF001550,
https://wcca.wicourts.gov/caseDetail.html?caseNo=2021CF001550&countyNo=30&in
dex=0&mode=details (last visited Mar. 26, 2024).
2

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2.3

Analysis

The Younger abstention doctrine prohibits federal judges from
intervening in state prosecutions unless there are extraordinary
circumstances involved. Younger v. Harris, 401 U.S. 37 (1971). Federal courts
must abstain from exercising jurisdiction over federal constitutional claims
that may interfere with on-going state proceedings. See SKS & Assocs., Inc.
v. Dart, 619 F.3d 674, 677 (7th Cir. 2010). Extraordinary circumstances exist
only where the danger of irreparable loss is both great and immediate.
Younger, 401 U.S. at 45.
Federal claims arising from illegal searches, seizures, and detentions
involve constitutional issues that a criminal defendant can litigate during
the course of the state criminal case. See Gakuba v. O'Brien, 711 F.3d 751, 751
(7th Cir. 2013). Such issues do not present a danger of irreparable and
immediate loss, because the criminal defendant can address them during
his trial in state court. See id. If the criminal defendant loses at trial, he can
appeal to a higher state court, such as the Wisconsin Court of Appeals or
the Wisconsin Supreme Court, for relief. Id. For that reason, federal courts
stay civil rights cases pending in federal courts until any state criminal case
from which the plaintiff's federal claims may arise is resolved. Id.
Plaintiff's claims in this federal case involve his alleged illegal arrest
and subsequent detention based on an illegal search. “Resolving the
constitutionality of law enforcement’s conduct throughout [Plaintiff’s]
cases would inject this court into Wisconsin’s criminal proceedings,
offending the principles of equity, comity, and federalism that counsel
toward abstention.” Shaw v. County of Milwaukee, No. 21-1410, 2022 WL
1001434, at *2 (7th Cir. Apr. 4, 2022) Because Plaintiff’s state criminal case is
not over, there is nothing the federal court can do for him at this time. In
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order for this Court to consider Plaintiff’s claims, he must complete his
underlying criminal cases and then exhaust all of his appellate, or postconviction, options in state court. See Simpson v. Rowan, 73 F.3d 134, 138 (7th
Cir. 1995). This Court can consider his constitutional claims only after
Plaintiff has litigated his claims to the highest state court.
The Court will accordingly administratively close Plaintiff’s case at
this time. When Plaintiff has fully litigated his pending state criminal cases
through every level of the state system, he may file a motion with this
Court, asking to reopen the case. There is no additional fee for filing a
motion to reopen. The Court will preserve the original filing date for this
case—February 5, 2024—regardless of when Plaintiff files his motion to
reopen. Plaintiff must file a motion to reopen this case within ninety days
of the conclusion of his state court proceedings; the failure to do so will
result in dismissal for the failure to prosecute.
Finally, the Court cautions Plaintiff that if his state-court case results
in a conviction, he may not be able to proceed with his claims in this case;
the Court would have to later dismiss this case on the merits if a judgment
in his favor would imply the invalidity of a state conviction. See Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994).
3.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without

prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT

IS

FURTHER

ORDERED

that

the

Clerk

of

Court

ADMINISTRATIVELY CLOSE this case; Plaintiff must file a motion to
reopen this case within ninety days of the conclusion of his state court

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proceedings; the failure to do so will result in dismissal of this case for the
failure to prosecute;
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $266.00 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’s trust account and forwarding payments to the Clerk
of Court each time the amount in the account exceeds $10 in accordance
with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 26th day of March, 2024.
BY THE COURT:

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

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Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to 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
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply 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. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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