Foster v. Tanem

1

NOVEL OTIS FOSTER, Plaintiff, v. MICHAEL TANEM, and SHAUN LESNIEWSKI, Defendants.

No. 21-cv-1244-pp

United States District Court, E.D. Wisconsin

August 24, 2022

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), GRANTING PLAINTIFF'S MOTION TO AMEND COMPLAINT (DKT. NO. 7) AND SCREENING AMENDED COMPLAINT UNDER 28 U.S.C §1915A

HON PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE

Novel Otis Foster, who is incarcerated at Dodge Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants improperly seized and held his property. A few days after receiving the complaint, the court received the plaintiff's motion to amend the complaint. Dkt. No. 7. The motion says that the plaintiff has additional information about his claim that was not included in the first complaint. Id. at ¶2. Under Federal Rule of Civil Procedure 15, “[a] party may amend its pleading once as a matter of course within” twenty-one days of service or within twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a)(1). Because the court has not yet screened the complaint or ordered service on any defendant, the court will grant the plaintiff's motion. This decision resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, and screens the amended complaint, dkt. no. 7-1.

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 the complaint. See 28 U.S.C. §1915(h). The PLRA allows the court to let an incarcerated plaintiff proceed with his case 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 prisoner account. Id.

On October 28, 2021, the court ordered the plaintiff to pay an initial partial filing fee of $36.27. Dkt. No. 6. The court received that fee on November 8, 2021. 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 Amended 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 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).

In determining whether the amended 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, the amended 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 amended 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 liberally construes 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 amended complaint alleges that on August 22, 2019, Detectives Michael Tanem and Shaun Lesniewski of the Milwaukee Police Department were investigating an unspecified crime. Dkt. No. 7-1 at 2. The detectives saw the plaintiff's white pickup truck parked on a parking slab nearby; the parking slab was behind a building on North 11th Lane. Id. at 2-3. The plaintiff says his truck had been parked there since 9:00 a.m. Id. He says the truck contained his personal property, including tools, the truck's title and the plaintiff's carpentry certification. Id. The detectives towed the truck on August 22, 2019, “going into midnight.” Id. at 3. The next morning, Lesniewski obtained a search warrant for the truck, although the plaintiff alleges the detectives never showed him the warrant. Id. The plaintiff alleges that at the time he filed the complaint, it had been twenty-six months since the detectives towed his truck, and they had not contacted him about his missing truck and personal property. Id. He asserts that the truck was not parked illegally on the street; it was parking on the parking slab for “a brake job (Repair service).” Id. He says that the truck wasn't used to assist in committing a crime, or as a getaway car or to commit a crime. Id.

The plaintiff says that after his “pending case was done,” he asked his attorney how he could obtain his property. Id. at 3-4.^[1] The attorney told the plaintiff that the officers “on the case” were supposed to contact him about his property; she also told him that he could petition the state court for its return. Id. The plaintiff says he filed a petition with the clerk of the state court, but the petition was returned to him with instructions to have it stamped by the Office of the City Attorney and the District Attorney's Office. Id. The plaintiff followed those instructions and obtained a stamp from the City Attorney's Office, but the District Attorney's Office never returned his request for a stamp. Id. The plaintiff “waited a couple month's [sic] to give them time.” Id. On August 27, 2021, he sent another petition and letter to the District Attorney's Office against requesting a stamp for his petition. Id. After thirty days, he still had not received a response. Id. He sent a third petition and letter via certified mail to be sure the office received his materials, but as of the date he filed the complaint, he still hadn't received a response from the District Attorney's Office. Id. at 4-5.

The plaintiff also sent a letter to the tow lot. Id. at 5. He says the tow lot informed him that his truck was held as evidence until March 22, 2021, and that it was “was disposed on 6-22-2021.” Id. The plaintiff says he never was notified about this and that officers never tried to contact him. Id. The plaintiff appears to assume that his truck and the tools and other property inside it were destroyed or sold at an auction. Id.; Dkt. No. 7 at ¶2.

The plaintiff asserts the detectives unlawfully seized his truck. Dkt. No. 7-1 at 3. He says his truck was not used to assist or commit a crime but was parked for repair services. Id. He says the detectives never contacted him about his truck, as state law requires. Id. at 5 (citing Wis.Stat. §968.20(2)). He asserts the detectives violated his rights under the Fourth and Fourteenth Amendments and Wisconsin law. Id. at 3. He seeks compensatory damages for the destruction or sale of his truck and personal property and for his emotional distress. Id. at 5. He also asks the court “to let them know they should follow the rules on return of property because [he] has a right to know about property [he] own[s].” Id. at 6.

C. Analysis

The court reviews the plaintiff's claim about the initial seizure of his property under the Fourth Amendment, which applies to the states through the Fourteenth Amendment. See Ker v. California, 374 U.S. 23, 30-31 (1963). The Fourth Amendment protects against unreasonable seizures of property, including personal property, by government actors. See Bell v. City of Chi., 835 F.3d 736, 739 (7th Cir. 2016) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)); Pepper v. Vill. of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005) (citing Oliver v. United States, 466 U.S. 170, 177 n.7 (1984)). A seizure of personal property “occurs when ‘there is some meaningful interference with an individual's possessory interests in that property.'” Soldal v. Cook Cty., Ill., 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

Generally “‘seizures of personal property are unreasonable within the meaning of the Fourth Amendment . . . [unless] accomplished pursuant to a judicial warrant.'” United States v. Burgard, 675 F.3d 1029, 1032 (7th Cir. 2012) (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001) (cleaned up)). But officers may temporarily seize personal property without a warrant if they have “‘probable cause to believe that . . . [the property] holds contraband or evidence of a crime'” and if exigent circumstances warrant the seizure. Id. (quoting United States v. Place, 462 U.S. 696, 701 (1983)). Even permissible, warrantless seizures must be reasonable under the Fourth...