Vue, Kong v. State of Wisconsin

Filing 6

ORDER denying plaintiff's request for leave to proceed in forma pauperis, dismissing his complaint without prejudice for violation of Fed. R. Civ. P. 8. Plaintiff may have until June 14, 2012 to submit a proposed amended complaint. Signed by District Judge Barbara B. Crabb on 5/31/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - KONG PHENG VUE,
ORDER
Plaintiff,
12-cv-83-bbc
v.
STATE OF WISCONSIN,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this proposed civil action, plaintiff Kong Pheng Vue is proceeding under the in
forma pauperis statute, 28 U.S.C. § 1915. In an order dated April 3, 2012, I denied plaintiff
leave to proceed because his complaint failed to comply with the notice pleading
requirements of Fed. R. Civ. P. 8. Plaintiff has filed an amended complaint. Dkt. #5.
Plaintiff does not have the means to make an initial partial payment. (From the
affidavit of indigency, I conclude that he is not a prisoner and therefore not subject to the
requirements of the Prison Litigation Reform Act.) Therefore, I must screen his amended
complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim
upon which relief may be granted or asks for money damages from a defendant who by law
cannot be sued for money damages. 28 U.S.C. § 1915(e)(2)(B). In addressing any pro se
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litigant’s complaint, the court must construe the complaint liberally. Having reviewed
plaintiff’s amended complaint, I conclude that it must dismissed. Even when read liberally
as it must be, Haines v. Kerner, 404 U.S. 519, 521 (1972), the allegations still fail to satisfy
the notice pleading standards of Fed. R. Civ. P. 8.
Plaintiff’s complaint arises out of his arrest and prosecution for a violent altercation
with Hilary Kendhammer on June 16, 2011. Although plaintiff suffered a black eye and cut
lip, the La Crosse police arrested him and declined to charge Kendhammer with a crime.
The police did not permit plaintiff to give a statement on his behalf.
On June 17, 2011, plaintiff was charged with battery, strangulation and disorderly
conduct based on fraudulent complaints by Kendhammer. Also on this date Judge Bjerke
“charged [plaintiff] without a trial” and sentenced him to “justice sanctions without a fair
trial.” The meaning of these latter allegations is not clear.
On January 4, 2012, the prosecution voluntarily dismissed the case against plaintiff.
Plaintiff complains that Kendhammer did not appear at any court dates between June 17,
2011 and January 4, 2012. Plaintiff asserts that Kendhammer should have been the party
to prosecute him for battery, rather than the State of Wisconsin or the district attorney.
Last, plaintiff alleges generally that the La Crosse County courthouse deprived him
of his right to freedom of speech, his right to due process and his right to be free from
unreasonable searches and seizures. He does not allege any specific facts to explain how
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these rights were violated.
While his criminal case was ongoing, plaintiff filed a complaint against the La Crosse
County Courthouse and the La Crosse Police Department. In an order dated December 15,
2011, I dismissed his case without prejudice because the defendants are not entities that can
be sued. Kong Pheng Vue v. La Crosse County Courthouse, No. 11-cv-713, dkt. #4. On
February 2, 2012, plaintiff filed a second complaint against the State of Wisconsin based on
similar facts. I dismissed that complaint without prejudice in an order dated April 3, 2012,
because it failed to meet the pleading standards of Rule 8 of the Federal Rules of Civil
Procedure.
Unfortunately for plaintiff, I cannot consider the merits of his amended complaint
at this time because it fails to correct the shortcomings of his previous complaints. First, the
amended complaint still violates Rule 8. Under Fed. R. Civ. P. 8(a)(2), a complaint must
include “a short and plain statement of the claim showing that the pleader is entitled to
relief.” This means that “the complaint must describe the claim in sufficient detail to give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Plaintiff
should understand that when the court reviews his complaints, it does not consider any facts
alleged in prior complaints.
Although the amended complaint has more detail than the previous complaint, it is
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still insufficient to provide notice to the proposed defendants. Undoubtedly, the criminal
prosecution was an unfortunate event for plaintiff. However, his complaint does not identify
any specific actions taken during the prosecution that might have violated his constitutional
rights. An individual’s rights are not violated simply because he is charged with a crime and
believes he is innocent. Baker v. McCollan, 443 U.S. 137, 144 (1979). Moreover, plaintiff
does not have a claim that his rights were violated simply because the state chose not to
charge Kendhammer with a crime. Private individuals do not have a right to have criminal
prosecutions brought against others. It is the job of the district attorney to decide whether
to charge an individual for violations of state law.
Because plaintiff’s complaint does not comply with Rule 8, I must dismiss it without
prejudice. Plaintiff may file a second amended complaint that fixes these problems. As I
instructed plaintiff in the previous order, he must write his complaint as if he is telling a
story to someone who knows nothing about his situation. Plaintiff should not assume that
the reader knows anything about his case. The court will not incorporate information from
any of his prior complaints into his newly amended complaint.
Second, I also instructed plaintiff in the order dated April 3, 2012 that he must
identify the actions taken by each individual that he believes violated his rights and list these
individuals as defendants. The amended complaint does not include a caption naming any
defendants.

His initial complaint in this case named the State of Wisconsin as the
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defendant. However, the Supreme Court has held that a state is not a suable entity under
28 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). I
discussed the proper entities for plaintiff’s complaint in the order dismissing plaintiff’s prior
case. Kong Pheng Vue v. La Crosse County Courthouse, No. 11-cv-713, dkt. #4, at 2.
Plaintiff should read that order again before filing a second amended complaint.

ORDER
IT IS ORDERED that plaintiff Kong Pheng Vue’s request for leave to proceed in
forma pauperis in this action is DENIED and his complaint is DISMISSED WITHOUT
PREJUDICE for violation of Fed. R. Civ. P. 8. Plaintiff may have until June 14, 2012, to
submit a proposed amended complaint. If plaintiff fails to respond by that date, then the
clerk of court is directed to close this case for petitioner’s failure to prosecute. If plaintiff
submits a revised complaint by that date, I will take that complaint under advisement for
screening pursuant to 28 U.S.C. § 1915(e)(2).
Entered this 31st day of May, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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