Dotson v. Milwaukee Police Dep't Dist. 2, Sgt. Kaltenbrun, Case No. 18-CV-182-JPS
| Decision Date | 16 May 2018 |
| Docket Number | Case No. 18-CV-182-JPS |
| Parties | ANDRAE L. DOTSON, Plaintiff, v. MILWAUKEE POLICE DEPARTMENT DISTRICT 2, SGT. KALTENBRUN, AARON FRANTAL, P.O. VARGAS-RAMOS, P.O. KLARKOWSKI, and JOHN DOES, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Plaintiff Andrae L. Dotson ("Dotson"), proceeding pro se, filed a complaint under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights. (Docket #1). On February 14, 2018, Dotson filed two motions to amend/correct his complaint. (Docket #4 and #5). On April 11, 2018, Dotson filed another motion to amend/correct his complaint. (Docket #14). On April 20, 2018, he filed a motion to supplement his complaint. (Docket #15). Dotson has also filed a motion for leave to proceed without prepayment of the filing fee, (Docket #2), a motion for discovery, (Docket #7), and a motion for counsel, (Docket #13). This decision resolves Dotson's motions and screens his complaint.
This case is currently assigned to Magistrate Judge David E. Jones. However, because not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was randomly referred to District Judge J. P. Stadtmueller for the limited purpose of screening the complaint. The case will be returned to Magistrate Jones for further proceedings after entry of this Order.
The Prison Litigation Reform Act applies to this case because Dotson was incarcerated when he filed his complaint. 28 U.S.C. § 1915. That law allows a Court to give an incarcerated plaintiff the ability to proceed with his case without prepaying the civil case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b). Once the plaintiff pays the initial partial filing fee, the Court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.
On March 1, 2018, the Court ordered Dotson to pay an initial partial filing fee of $57.10. (Docket #11). Dotson paid that fee on March 12, 2018. Therefore, the Court will grant Dotson's motion for leave to proceed without prepayment of the filing fee. He must pay the remainder of the filing fee over time in the manner explained at the end of this Order.
Dotson has filed three different motions seeking to amend his complaint and a motion to supplement his complaint. With regard to his motions to amend, Dotson did not comply with the procedural rules in connection with amending a complaint. Federal Rule of Civil Procedure 15 and Civil Local Rule 15 (E.D. Wis.) require that the plaintiff file a motion seeking leave to amend his complaint and attach to the motion the proposed amended complaint. An amended complaint replaces previously filed complaints, so a plaintiff cannot simply tack on claims or defendants with separate filings. All of the parties and claims need to be included inone document. Because Dotson did not comply with the applicable rules in any of his motions to amend his complaint, the Court will deny all of those motions.
Dotson also failed to comply with the applicable rules for supplementing his complaint. Under Federal Rule Civil Procedure 15(d), "on motion and reasonable notice, the Court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." That is, a Court will "permit a supplemental pleading when a party wishes to bring up events occurring subsequent to the original pleading that relate to a claim or defense presented in the original pleading." Habitat Educ. Ctr., Inc. v. Kimbell, 250 F.R.D. 397, 402 (E.D. Wis. 2008). Dotson, however, asks to be allowed to supplement his original complaint with a claim based on an event that occurred prior to when he filed his original complaint. Therefore, he failed to comply with applicable rules. The Court will deny his motion and will move forward with screening his original complaint.
4.1 Federal Screening Standard
The law requires the Court to screen complaints brought by prisoners seeking relief against 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 plaintiff 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).
To state a claim, a complaint must contain sufficient factual matter, accepted as true, "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 under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was caused by the defendant was acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court gives a pro se plaintiff's allegations, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
4.2 Complaint's Allegations
Dotson alleges that on June 20, 2017, he was physically assaulted after being pulled over to be arrested by police officers from District 2 of the Milwaukee Police Department. He states that this assault was due to the officers becoming irritated because he did "not exit[] the vehicle once they opened the door." (Docket #1 at 3). Dotson asserts that "after 45 minutes of talking 5 or more officers from District 2 who purposely kept their identities unknown tazed, kicked, punched, and choked [him] while he was still in his seat belt." Id. at 2. Dotson states that the assault resulted in him suffering a black eye, taser burns, cuff marks, a bruised shoulder, back pain, and post-traumatic stress. Id. at 2-3. He alleges that he was taken to the hospital forhis injuries and that he was not charged with resisting arrest. Id. at 3. Dotson seeks compensatory and punitive damages.
4.3 The Court's Analysis
"An officer who has the right to arrest an individual also has the right to use some degree of physical force or threat of force to effectuate the arrest" as long as their actions are reasonable under the Fourth Amendment. Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009) (citation omitted). Factors relevant to the reasonableness of that officer's actions include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted). At this stage, the Court finds Dotson has stated a Fourth Amendment claim for excessive use of force against the John Doe defendants.
Dotson, however, names Sergeant Kaltenbrun and Police Officers Aaron Frantal, Vargas-Ramos, and Klarkowski in the caption of his complaint, but he does not state what they did, or what they failed to do, to violate his rights. See Morfin v. City of E. Chicago, 349 F.3d 989, 1001 (7th Cir. 2003) (). The Court is aware that these defendants may be part of the "5 or more officers from District 2" that participated in the purported harm inflicted on Dotson. However, Dotson must directly state who violated his rights; the Court will not make this assumption on his behalf. Kaltenbrun, Frantal, Vargas-Ramos, and Klarkowski will be dismissed as defendants.
Dotson also names the Milwaukee Police Department District 2 as a defendant. A suit against the police department, as an arm of the City ofMilwaukee, is in reality a suit against the city itself. "Despite the fact that Monell allows for municipalities to be held liable under § 1983, it does not allow for liability under § 1983 on a theory of respondeat superior or vicarious liability." Freeman v. City of Milwaukee, 994 F. Supp. 2d 957, 964 (E.D. Wis. 2014). Dotson's theory of liability against the police department appears to be for vicarious liability. The Court will, therefore, dismiss the Milwaukee Police Department District 2 as a defendant.
Because Dotson does not know the names of any of the police officers he has been allowed to proceed against, the court will add Alfonso Morales, Milwaukee Police Department Chief of Police, as a defendant for the limited purpose of helping Dotson identify the real names of the John Doe defendants. See Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 556 (7th Cir. 1996).
The Court will order the U.S. Marshals to serve Chief Morales with Dotson's complaint and a copy of this order. Chief Morales does not have to respond to Dotson's complaint. After Chief Morales' attorney files an appearance in this case, Dotson may serve discovery upon Chief Morales (by mailing it to his attorney at the address in his notice of appearance) to get information that will help him identify the real names of the John Doe defendants.
For example, Dotson may serve interrogatories (written questions) under Fed. R. Civ. P. 33 or document requests under Fed. R. Civ. P. 34. Because Dotson has not stated a claim against...
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