Harris v. Market et al

Filing 10

SCREENING ORDER signed by Magistrate Judge William E Duffin on 5/9/2024. Harris's motion for leave to proceed without prepayment of the filing fee (ECF No. #2 ) is GRANTED. IT IS FURTHER ORDERED that on or before May 28, 2024, Harris may file an amended complaint. (cc: all counsel and mailed to pro se party with Prisoner pamphlet and Amended Complaint form)(mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRELL HARRIS,
Plaintiff,
v.

Case No. 24-CV-314

OFFICER MARKET, OFFICER SHOUP,
and MILWAUKEE POLICE DEPARTMENT
DISTRICT 4,
Defendants.
ORDER
Plaintiff Terrell Harris, who is currently confined at Green Bay Correctional
Institution and representing himself, filed a complaint under 42 U.S.C. § 1983
alleging that the defendants violated his constitutional rights. (ECF No. 1.) Harris
also filed a motion for leave to proceed without prepayment of the filing fee. (ECF
No. 2.)
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE

The Prison Litigation Reform Act (PLRA) applies to this case because Harris
was incarcerated 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. 28 U.S.C. § 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 March 11, 2024, Harris filed a motion for leave to proceed without
prepayment of the filing fee. (ECF No. 2.) On March 12, 2024, the court ordered that
Harris shall pay $57.04 as an initial partial filing fee by April 11, 2024. (ECF No. 5.)
Harris paid the fee on April 1, 2024. The court will grant Harris’s motion for leave
to proceed without prepayment of the filing fee and allow him to pay the full filing
fee over time in the manner explained at the end of this order.
SCREENING OF THE COMPLAINT
Federal Screening Standard
Under the PLRA the court must screen complaints brought by prisoners
seeking relief from a governmental entity or 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 the 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)). To state a
claim 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
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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 Atlantic 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 color
of state law. D.S. v. E. Morris Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015)
(citing Buchanan–Moore v. Cty. 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)).
Harris’s Allegations
Harris alleges that, while he was detained at the Milwaukee Secure
Detention Facility (MSDF), defendants Officer Market and Officer Shoup, who were
with the Milwaukee Police Department District 4, came to take Harris’s “formal
report” because prior to his detainment he was a victim of sexual assault. (ECF No.
1 at 2.) During the interview the officers made insulting comments, stating that he
was too “grown” to be a victim of sexual assault and that they did not believe him.
(Id. at 2-3.) They also referenced Harris’s previous conviction for child enticement.
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(Id. at 3.) Additionally, they walked out without taking a full report, which resulted
in the district attorney not having enough evidence to move forward with
prosecution. (Id.)
Analysis
Harris claims that his constitutional rights were violated by Market and
Shoup when they made insulting comments and did not properly investigate his
allegations of sexual assault. In addition to Market and Shoup, Harris sues
“Milwaukee Police Department District 4.” Section 1983 allows a plaintiff to sue a
“person” who, acting under color of law, violates his constitutional rights. The
Milwaukee Police Department District 4 is not a person, nor is it a separate legal
entity that can be sued under §1983. See Louis v. Milwaukee County Jail, No. 17-cv113-wed-pp, 2017 WL 3037567 at *2 (E.D. Wis. July, 18 2017) (citing Powell v. Cook
Cty. Jail, 814 F. Supp. 757, 758 N.D. Ill. 1993)). Therefore, …
Harris also alleges that he was verbally harassed by Market and Shoup.
“Only on rare occasions does verbal harassment of a pretrial detainee or
incarcerated person rise to the level of a constitutional violation.” Griffin v. Garcia,
Case No. 19-cv-1070-pp, 2024 WL 1071651 at * 5 (E.D. Wis. Mar. 12, 2024) (citing
Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015). Verbal harassment rises to the
level of cruel and unusual punishment only where it incites psychological pain, such
as a guard purposely telling an inmate with a headache that the doctor told him
that the inmate had terminal brain cancer. Lisle v. Welborn, 933 F.3d 705, 718 (7th
Cir. 2019).
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Harris does not provide details regarding the effect the verbal harassment
had on him. Although he states it caused mental anguish, he does not elaborate.
Harris filed a supplement to his complaint that contains more detail (ECF No. 8),
but under Federal Rule of Civil Procedure 15(d) a supplemental pleading is only for
transactions, occurrences or events that occurred after the filing of the pleading to
be supplemented. Supplemental pleadings are distinguished from amended
pleadings and are not to be used to provide detail that is missing from the original
complaint.
As for the failure to investigate, generally there is no constitutional right to
an investigation, see Davis v. Owens, 973 F.2d 574, 577 (7th Cir. 1992), but Harris
may have a claim under the Equal Protection Clause. However, he does not include
enough detail for the court to make this determination.
For these reasons, Harris fails to state a claim upon which relief may be
granted.

The Seventh Circuit has emphasized, however, that the district court

generally must afford a plaintiff at least one opportunity to amend his complaint.
See Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022).

Accordingly, if

Harris so chooses, he may file an amended complaint by May 28, 2024, and specify
what impact the defendants’ actions had on him. He is advised that an amended
complaint replaces the prior complaint and must be complete in itself without
reference to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th Cir. 1998).

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If an amended complaint is received, the court will screen it as required by 28
U.S.C. § 1915A. If an amended complaint is not received, the court will dismiss the
action based on Harris’s failure to state a claim in his original amended complaint.
The court will enclose an amended complaint form along with this decision. Harris
must use the form. If he needs more space, he may attach up to five additional
pages.
CONCLUSION
NOW, THEREFORE, IT IS HEREBY ORDERED that Harris’s motion for
leave to proceed without prepayment of the filing fee (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that on or before May 28, 2024, Harris may
file an amended complaint. If the court does not receive an amended complaint by
that date, the court will dismiss this action based on the original complaint’s failure
to state a claim and will issue him a “strike” under 28 U.S.C. § 1915(g)
IT IS FURTHER ORDERED that the agency having custody of Harris
shall collect from his institution trust account the $292.96 balance of the filing fee
by collecting monthly payments from Harris’s prison trust account in an amount
equal to 20% of the preceding month’s income credited to Harris’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 Harris is
transferred to another county, state, or federal institution, the transferring

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institution shall forward a copy of this order along with his remaining balance to
the receiving institution.
IT IS FURTHER ORDERED that a copy of this order be sent to the officer
in charge of the agency where Harris is confined.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner
E-Filing Program institutions1 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs who are
inmates at all other prison facilities must submit the original document for each
filing to the court to the following address:
Office of the Clerk
517 E. Wisconsin Avenue, Room 362
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS.
It will only delay the processing of the matter.
Harris is further advised that failure to make a timely submission may result
in the dismissal of this case for failure to diligently pursue it. In addition, the
parties must notify the Clerk of Court of any change of address. Harris is reminded
that it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. Harris’s failure to keep the court
advised of his whereabouts may result in the dismissal of this case without further
notice.
The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution.
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Enclosed is a guide prepared by court staff to address common questions that
arise in cases filed by prisoners. Entitled “Answers to Prisoner Litigants’ Common
Questions,” this guide contains information that Harris may find useful in
prosecuting his case.

Dated at Milwaukee, Wisconsin this 9th day of May, 2024.
BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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