Cunningham v. Kenosha Cnty.

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JESSE M. CUNNINGHAM, III, Plaintiff, v. KENOSHA COUNTY, KENOSHA COUNTY PROSECUTOR'S OFFICE, KENOSHA COUNTY POLICE DEPARTMENT, OFFICER ROWLEY, OFFICER SINGH, OFFICER VEGA and OFFICER AQUINO, Defendants.

No. 23-cv-291-pp

United States District Court, E.D. Wisconsin

August 3, 2023

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2) AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A

HON PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE

Jesse M. Cunningham, III, who is incarcerated at Prairie du Chien Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants unlawfully entered his home, searched and arrested him and detained him pending trial. This decision resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1.

I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff to proceed with without prepaying the civil case filing fee. 28 U.S.C §1915(a)(2). When funds exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prison trust account. Id.

On March 10, 2023, the court ordered the plaintiff to pay an initial partial filing fee of $26.74. Dkt. No. 7. The court received that fee on March 20, 2023. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

II. Screening the Complaint

A. Federal Screening Standard

Under the PLRA, the court must screen complaints brought by incarcerated persons 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 incarcerated person 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 it applies when considering whether to dismiss a case 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 to 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 the color of state law. D.S. v. E. Porter 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 liberally complaints filed by plaintiffs who are representing themselves and holds such complaints 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)).

B. The Plaintiff's Allegations

The complaint names as defendants Kenosha County, the Kenosha County Prosecutor's Office, the Kenosha County Police Department and Kenosha County Police Officers Singh, Vega, Rowley and Aquino. Dkt. No. 1 at 1-2. The plaintiff alleges that on or around February 6, 2021, Officers Singh, Rowley, Vega and Aquino illegally entered the home he shared with his daughter without their consent. Id. at 3. He says he and his daughter were “awaken [sic] by police terror and screams of his daughter by police invasion.” Id. His daughter told the officers that the plaintiff “didn't do anything wrong and Melissa Rickey don't live here!” Id. The plaintiff says he told the officers to leave numerous times because Melissa Rickey no longer lived there, and that she was asked to leave that morning after an argument the previous evening. Id. at 4. The plaintiff says the officers searched his home and his person beyond “the area from within [which] he might [have] obtained either a weapon or something that could have been used as evidence against him.” Id. He asserts that there “was [no] constitutional [j]ustification[,] in the absence of a search warrant, for extending the search beyond that area.” Id.

The plaintiff explains that he and his daughter lived at the home for several years. Id. at 5. He says his girlfriend was supposed to come over the following morning, and that he wanted Ms. Rickey “to leave his home because of her behavior.” Id. He says that while he was asleep, Ms. Rickey “called the police falsely, which the District Attorney drop all her false allegations.” Id. The plaintiff says Ms. Rickey has “untreated mental health diagnoises [sic],” and there had been several law enforcement and police contacts regarding her mental health; he says her behavior was indicative of “extreme paranoia and hallucinations.” Id. The plaintiff says the officers told him “that they knew of Ms. Rickey.” Id. at 6. The plaintiff asserts that the officers “blatantly disregarded protocol, because he is an African American male living in Kenosha County.” Id. He claims the officers “took advantage of Ms. Rickey['s] mental health issues so they [could] violate [his] constitutional and civil rights.” Id. He says that the officers terrorized him, separated him from his daughter, wrongfully detained and imprisoned him, all of which caused him to lose his home, his property, his children and his freedom. Id.

The plaintiff asserts that the officers arrested him without first reciting the Miranda warnings. Id. at 8. He says he was then held without bail and without being provided a “court proceeding with out any formal charges for six months.” Id. He says that while he was detained, he asked “the Courts for any evidence or discovery which he was also denied.” Id. at 9. He says, “Brady violation,” which he says “force[d] the Plaintiff to except [ sic] a plea offer.” Id. The plaintiff says that when he realized that a “vindictive, malicious prosecution [was] being set forth,” he wanted to withdraw “his plea offer,” but the court denied that request. Id. The docket from the plaintiff's state court criminal case shows that he pleaded guilty on February 21, 2022, to one charge of unlawful possession of a firearm. See State of Wisconsin v. Jesse M. Cunningham III, Kenosha County Case Number 2021CF000925 (available at https://wcca.wicourts.gov/case.html). The court dismissed a second count of possession of THC. Id.

The plaintiff asserts that the officers violated his rights under the Fourth Amendment and “Sec II of Wisconsin Constitution” by entering his home without his consent, searching his home and seizing him without a “constitutional justification” or a warrant. Dkt. No. 1 at 4, 9. He says the prosecution detained him “illegally by use of stalking horse which he supposed to have been charged with a crime within 48 hours of arrest which it took 6 month to be charged [sic].” Id. at 9. He also claims that state prosecutors violated Brady and his right to due process, and he says they committed “stalking horse violations.” Id. at 10. He also says he was given an unconstitutional, “[i]llusory plea offer.” Id.

The plaintiff says the officers' behavior led to him losing custody of his children, his home and his “material wealth and freedom.” Id. at 10. He says the “proper punishment for racially motivated behavior is to be terminated.” Id. The plaintiff seeks to have custody of his children returned and “money so [he] can replace some of the things [he's] lost and could have gain[ed] over these few years or more.” Id. He also seeks unspecified punitive damages and declaratory relief. Id.

C. Analysis

The plaintiff seeks to proceed on claims related to the allegedly unlawful entry and search of his home, arrest/seizure of his person, his detention pending charges and various issues with his state criminal case proceedings, including due process violations and what he calls an illusory plea offer. The court will address each of these claims separately.

1. Unlawful Entry and Search

The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. Const. Amend. IV; Alexander v. McKinney, 692 F.3d 553, 558 (7th Cir. 2012) (citing Albright v. Oliver, 510 U.S. 266, 275 (1994) (plurality opinion)). “With few exceptions, the Fourth Amendment prohibits the warrantless entry of a person's home to make an arrest or to conduct a search.” Peals v. Terre Haute Police Dep't, 535 F.3d 621, 627 (7th Cir. 2008) (citing Kyllo v. United States, 533 U.S. 27, 31 (2001)). One exception to the warrant requirement is where the owner of the home consents. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

The plaintiff claims that the officers...