Martin v. Gray, 20-CV-741-JPS

• Decision Date: 27 August 2021
• Docket Number: 20-CV-741-JPS
• Parties: RONNIE MARTIN, Plaintiff, v. TIMOTHY P. GRAY, DOES, and ABC INSURANCE COMPANY, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

RONNIE MARTIN, Plaintiff, v. TIMOTHY P. GRAY, DOES, and ABC INSURANCE COMPANY, Defendants.

No. 20-CV-741-JPS

United States District Court, E.D. Wisconsin

August 27, 2021

ORDER

J. P STADTMUELLER U.S. DISTRICT JUDGE

Plaintiff Ronnie Martin, a former inmate, filed a pro se complaint under 42 U.S.C. § 1983 alleging that Defendants violated his rights under the Constitution as well as under federal and state law. (Docket #1). In addition to a motion to proceed in forma pauperis, Plaintiff has filed a motion to proceed, (Docket #6), motion for justice (Docket #8), and motion for a status hearing, (Docket #9). This order resolves Plaintiff's motion for leave to proceed without prepaying the filing fee, screens his complaint, and addresses his other pending motions.

1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE

The Prison Litigation Reform Act (the “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 provide 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 as he is able. Id.

On October 29, 2020, the Court ordered Plaintiff to pay an initial partial filing fee of $29.83. (Docket #7). Plaintiff paid that fee on November 17, 2020. The Court will grant Plaintiff's motion for leave to proceed without prepaying the filing fee. (Docket #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 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 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 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). 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 alleges that, since 2015, Defendant Timothy Gray (“Gray”), a Wisconsin Department of Criminal Investigation (“WDCI”) special agent and task-force officer for the Drug Enforcement Agency (“DEA”), and the Doe Defendant (“Doe”), a confidential source, have worked together on a DEA investigation of Plaintiff and others. (Docket #1 at 2-5). Plaintiff alleges that, as a part of the DEA investigation, Doe had several phone conversations with a person to arrange a sale of morphine. (Id.) Reporting to Gray, Doe falsely identified Plaintiff as the person he was talking to on the phone and that Plaintiff was arranging the drug sale. (Id.) After the phone calls, Doe successfully completed the controlled purchase of morphine on March 20, 2015. (Id.) Plaintiff was not the person from whom Doe purchased drugs. (Id.)

On September 1, 2017, Plaintiff filed a § 1983 case against Gray. (Id.) One month later, in October of 2017, Plaintiff was charged for the alleged delivery of a controlled substance on March 20, 2015, by the Milwaukee District Attorneys' Office. (Id.) On December 13, 2017, Plaintiff was taken into custody at the Milwaukee County Jail for the drug charge. (Id. at 4-5). Plaintiff states that Gray and Doe caused him to be taken into custody without probable cause, consent, or exigent circumstances. (Id. at 7). Plaintiff also claims that based upon Doe's false allegations at the direction of Gray, Gray and Doe “willfully, wantonly and maliciously caused Plaintiff to be charged with a felony and held [him] in custody for more than eleven months.” (Id. at 7-8). On October 10, 2018, Gray interviewed an individual who provided him with the true identity of the person who had arranged the drug sale with Doe in March 2015. (Id. at 6). On November 7, 2018, the State of Wisconsin dismissed the case against Plaintiff after it determined that it was not Plaintiff on the phone with Doe. (Id.) Plaintiff was held at the Milwaukee County Jail for almost one year before the case was dismissed. (Id.)

Plaintiff alleges that Gray and Doe both knew that it was not Plaintiff's voice on the phone call arranging the drug deal but, nevertheless, allowed Plaintiff to remain incarcerated. (Id.) Plaintiff states that both Doe and Gray are intimately familiar with his voice, as Doe and Plaintiff were close friends and had many conversations, and that Gray had listened to phone calls of Plaintiff and interviewed him. (Id.) Plaintiff states that Gray and Doe “knowingly and deliberately conspired to deprive Plaintiff of his Civil Rights.” (Id. at 7). Further, Plaintiff alleges that Gray allowed Plaintiff to remain in custody because he was upset about the pending § 1983 case against him and he was upset that Plaintiff had refused to cooperate with him. (Id. at 6-7).

2.3 Analysis

Plaintiff alleges eight claims against Defendants: (1) False Imprisonment; (2) Malicious Prosecution;, (3) Deceit under 28 U.S.C. § 2671; (4) State and Federal Tort; (5) Violation of the Eighth Amendment; (6) Due Process Violation under the Fourth and Fourteenth Amendments; (7) Slavery and Involuntary Servitude in Violation of the Thirteenth Amendment; and (8) Punitive Damages. (Docket #1 at 7-11).

2.3.1 Color of Law

To begin, the Court must address whether Defendant Gray was operating under the color of state or federal law, as this dictates what claims Plaintiff may bring against him. If Gray was operating under the color of state law, Plaintiff will need to bring his constitutional claims under 42 U.S.C. § 1983. Under § 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)). However, if Gray was operating under the color of federal law, Plaintiff will need to bring his constitutional claims under Bivens v. Six Unknown Federal Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than under § 1983. See Hernandez v. Mesa, 140 S.Ct. 735, 747 (2020) (“We have described Bivens as a ‘more limited' ‘federal analog' to § 1983.”).

Based upon the complaint, it appears that Gray was operating under the color of federal law because he was investigating Plaintiff as part of a DEA task-force investigation. (Docket #1 at 2-5). Although Gray was a state employee, he was assigned to a federal task force. In this situation, courts have generally found that the state employee is acting under color of federal law. See e.g., Guerrero v. Scarazzini, 274 Fed.Appx. 11, 12 n.1 (2d Cir. 2008) (noting that because the defendant officers were deputized members of a DEA task force, plaintiff's claim was properly brought as a Bivens action); Majors v. City of Clarksville, 113 Fed.Appx. 659 (6th Cir. 2004) (interpreting a plaintiff's § 1983 claim against local officers acting as DEA task force agents as a Bivens claim); Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976) (holding that local law enforcement officer was acting under the color of federal law while assigned to federal agency and during a federally authorized raid); Amoakohene v. Bobko, 792 F.Supp. 605, 608 (N.D. Ill. 1992) (holding that local officers arresting someone for a municipal code violation incident to activities in connection with a DEA task force, of which the officers were members, did not act under color of state law).

Because Gray was acting under the color of federal law rather than under the color of state law, Plaintiff's constitutional claims against him arise under Bivens. Therefore, Plaintiff's constitutional claims against Gray are not cognizable under § 1983 and the Court will proceed with screening Plaintiff's constitutional claims against Gray under Bivens.

2.3.2 Bivens

The Supreme Court has recognized a Bivens claim in only three cases: Bivens (Fourth Amendment unreasonable search and seizure); Davis v. Passman, 442 U.S. 228 248-49 (1979) (Fifth Amendment Due Process Clause gender discrimination); and Carlson v. Green, 446 U.S. 14, 17-19 (1980) (Eighth Amendment inadequate medical treatment). “These three cases- Bivens, Davis, and Carlson-represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution its...