Brown v. Uhl

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MERCEDEZ BROWN,

Plaintiff,

Case No. 22-CV-131-JPS

v.

BROWN COUNTY, VILLAGE OF

ASHWAUBENON, ST. VINCENT’S ORDER

HOSPITAL, and PREVEA HEALTH,

Defendants.

On February 1, 2022, Plaintiff Mercedez Brown (“Plaintiff”),

proceeding pro se, filed this action alleging that Defendants Brown County,

Village of Ashwaubenon, St. Vincent’s Hospital, and Prevea Health

(collectively, “Defendants”) violated her civil rights or acted negligently

towards her and her family. ECF No. 1. Plaintiff also filed a motion for leave

to proceed without prepaying the filing fee, ECF No. 2. This Order screens

Plaintiff’s complaint and addresses her motion for leave to proceed without

prepaying the filing fee.

1. MOTION TO PROCEED IN FORMA PAUPERIS

On the question of indigence, although Plaintiff need not show that

she is totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), the

privilege of proceeding in forma pauperis “is reserved to the many truly

impoverished litigants who, within the District Court’s sound discretion,

would remain without legal remedy if such privilege were not afforded to

them,” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).

In her motion, Plaintiff avers that she is unmarried, has three

children, and is employed at Celerity Staffing with a total monthly income

of $2,560. ECF No. 2 at 1–2. Her total monthly expenses, which include rent,

court-ordered payments, household expenses, and loans, amount to $2,820.

She does not own any real estate, vehicles, or any other assets or financial

accounts. Id. at 3–4. The Court accepts that Plaintiff is indigent. However,

the inquiry does not end there; the Court must also screen the action.

2. SCREENING STANDARDS

Notwithstanding the payment of any filing fee, when a plaintiff

requests leave to proceed in forma pauperis, the Court must screen the

complaint and dismiss it or any portion thereof if it 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. § 1915(e)(2)(B). A claim is legally

frivolous when it lacks an arguable basis either in law or in fact. Denton v.

Hernandez, 504 U.S. 25, 31 (1992); Hutchinson ex rel. Baker v. Spink, 126 F.3d

895, 900 (7th Cir. 1997). The Court may dismiss a claim as frivolous where

it is based on an indisputably meritless legal theory or where the factual

contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989).

To state a claim, a complaint must provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). In other words, the complaint must give “fair notice of what

the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The allegations must “plausibly suggest

that the plaintiff has a right to relief, raising that possibility above a

speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016)

(internal citation omitted). Plausibility requires “more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556). In reviewing the complaint,

the Court is required to “accept as true all of the well-pleaded facts in the

complaint and draw all reasonable inferences in favor of the plaintiff.”

Kubiak, 810 F.3d at 480–81. However, the Court “need not accept as true

‘legal conclusions, or threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.’” Brooks v. Ross, 578 F.3d 574, 581

(7th Cir. 2009) (citing Iqbal, 556 U.S. at 678) (internal bracketing omitted).

“Rule 8(a) requires parties to make their pleadings straightforward,

so that judges and adverse parties need not try to fish a gold coin from a

bucket of mud.” U.S. ex rel. Garst v. Lockheed–Martin Corp., 328 F.3d 374, 378

(7th Cir. 2003). “[L]ength may make a complaint unintelligible, by

scattering and concealing in a morass of irrelevancies the few allegations

that matter.” Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 2013) (quoting

Garst, 328 F.3d at 378). “District judges are busy, and therefore have a right

to dismiss a complaint that is so long that it imposes an undue burden on

the judge, to the prejudice of other litigants seeking the judge’s attention.”

Id. In Garst, the Seventh Circuit upheld the district court’s decision to

dismiss a complaint that was 155 pages with more than 400 numbered

paragraphs and 99 attachments. Garst, 328 F.3d at 379.

3. RELEVANT ALLEGATIONS

Plaintiff’s complaint is 49 typed pages. While this, alone, is not

dispositively long, the Court’s review of the complaint indicates that much

of it is biographical backstory that recounts, at length, interpersonal

disputes. To some extent, backstory can help contextualize legal disputes.

However, too much backstory detracts from the legal analysis, and makes

it difficult for the Court to identify precisely what conduct gives rise to

Plaintiff’s lawsuit. Below, the Court has summarized the portions of the

complaint that appear relevant to Plaintiff’s claims of civil rights violations

and negligence.

Plaintiff’s complaint describes her relationship with her aunt, Jean,

who is still heavily involved in her life. For example, Plaintiff’s official

address is Jean’s address. Child Protective Services (“CPS”) approved the

placement of Plaintiff’s children with Jean. Nonetheless, when Plaintiff was

a child, she suffered severe abuse from many people, including Jean’s

husband, James. Plaintiff has told CPS about this and has objected to Jean’s

involvement in her children’s lives.1 While it is not clear if James is still

involved in Plaintiff’s life, her relationship with Jean is tumultuous and

emotionally abusive. Plaintiff’s son has told her that he does not feel safe in

Jean’s home. Notwithstanding Plaintiff’s complaints to CPS, the placement

continues.

Plaintiff also alleges that Lauren Saverin (“Saverin”), a case worker

with Brown County, coerced her into signing a paper so that her son, J.A.B.,

could see a therapist. Id. at 12. Plaintiff says that she signed the permission

form on the condition that J.A.B. not be medicated. Shortly thereafter,

however, Saverin gave Plaintiff a paper to sign to permit medication, which

upset Plaintiff. It is not clear from the complaint whether Plaintiff signed

the medication permission. At some point, one of Plaintiff’s children was

prescribed a medication. Id. at 20. Plaintiff also complains that Saverin is a

poor communicator, which results in Plaintiff missing visits with her

children. Id. at 17–18.

1It is not clear if CPS knew about the abuse that Plaintiff experienced from

James as it occurred during her childhood or whether CPS learned of it after the

fact. Plaintiff alleges that CPS knew, but she also states that Jean and James never

left her alone with her caseworker and monitored what she said. Id. at 26. In any

case, it is clear that Plaintiff’s abuse went unchecked.

Plaintiff also recounts how the Brown County Jail responded to her

suggestions that she might be suicidal by placing her in a suicide cell and

then in a suicide chair for six hours. While this appears to have been

standard protocol, Plaintiff explains that it worsened her mental health and

anxiety. Id. at 22–24. After a psychiatric evaluation, Plaintiff was released

back into general population, whereupon she had an allergic reaction to

black pepper. She went to the hospital, and, when readmitted to the jail,

received an EPI-pen for her multiple allergies. However, her diet was not

changed. It is not clear whether her other allergies were food-related or

whether the black pepper could be easily avoided. She bonded out days

later.

When she arrived back at her apartment, her landlord, with whom

she had previously had a good relationship, evicted her. The landlord

mentioned that CPS and the Brown County Police had told her things about

Plaintiff. However, the landlord would not elaborate on what was said.

On June 30, 2019, Plaintiff’s neighbor was stabbed and sought refuge

in Plaintiff’s residence. Plaintiff went outside with him, where the police

and paramedics had gathered. Plaintiff’s neighbor told the police what

happened to him, which did not involve Plaintiff. The police asked if they

could search Plaintiff’s home, but she said no. The police drew their guns

and roughed her up in front of her children, who were watching from a

window. When one of her children opened the front door to run to her, the

police pulled Plaintiff into her house and handcuffed her. She relented to

signing a consent-to-search form because she wanted the ordeal to be over.

The police also took her phone to search, but they never returned it. Id. at

28–29.

Based on this and other ordeals with the police, Plaintiff filed

multiple complaints with the Ashwaubenon Police Department. She

believes that they retaliated against her by filing complaints with CPS. Id.

at 28–29. She experienced several intense investigations by CPS, paid over

$3,000 in ticket citations in 2019, and suffered at least one allegedly

erroneous arrest, which occurred after Plaintiff’s neighbor called the police

on Plaintiff because the neighbor was upset about a romantic situation. Id.

at 30–31. It appears that this arrest resulted in charges, the outcome of which

are unclear. See id. at 50–51. Later, Jean also received citations from Brown

County. Plaintiff alleges that these citations were retaliatory and erroneous,

prompted by Jean’s association with Plaintiff, because they do not appear

on the website rsf.greenbaywi.gov.

Later that year, on September 24, 2019, Plaintiff called the police

because her infant son died. The responding police included many officers

about whom Plaintiff had filed complaints. When she screamed and cried

in grief, the police allegedly beat her up and arrested her. Id. at 32–33. The

officers involved were Lieutenant Amerson, who ordered her detention,

and Officer Hennessy, who put her in the squad car in handcuffs and drove

her to a willow tree, where she was questioned. Id. Plaintiff believes that the

circumstances surrounding her infant son’s death are suspicious. Her son

was “stuffed very deep into the side of [her] mattress. Almost as if he was

shoved there.” Id. at 34. She calls for a federal investigation of his death.

After the death of her son, CPS did not check on Plaintiff until April 2020.

Plaintiff faults CPS for not offering any relief to her during the difficult

aftermath of her son’s death.

Towards the end of April 2020, as the pandemic raged, Plaintiff

struggled to make ends meet while caring for her children. One of her sons,

R.B., came down with an illness and had trouble breathing. Plaintiff called

the police, who told her that R.B.’s airways were clear and counseled her

that it might be a virus that will run its course. Prevea Health told her the

same thing. She attempted to make appointments with her physician but to

no avail. A few days later, while she was out running errands for a friend

in exchange for payment, R.B.’s situation grew critical, and her other

children called an ambulance. When she came home, the police officers on

the scene were very judgmental towards her. R.B. was admitted to the

pediatric intensive care unit at St. Vincent’s Hospital. He was ultimately

diagnosed with cancer. CPS began paperwork to remove Plaintiff’s children

from her home.

During this time, Plaintiff butted heads with the one of the nurses,

Kim, who did not want Plaintiff in the intensive care unit with her son and

disliked that Plaintiff kept going in and out of the ward. Eventually, the

nurse called the police, who drew their guns and escorted Plaintiff out of

the hospital. Plaintiff believes that she was unfairly categorized as a drug

user and a bad mother.

In the summer of 2020, one of Plaintiff’s friends passed away. For

reasons unclear to the Court, Plaintiff believes that she knows who killed

him and that the police tampered with emails and video evidence. See id. at

45. She requests a federal investigation of the friend’s death, as well as an

investigation of one of her relatives, who she believes is selling drugs with

the help of the police, and an investigation of the Oneida Indian Reservation

and the Menominee Indian Reservation, due to their high death rates,

which she believes is drug related.

Plaintiff has several open cases in Brown County and is represented

by at least three public defenders. She expresses dissatisfaction with how

the cases have progressed and believes they are being unnecessarily

prolonged. Plaintiff’s complaint seems to allude to a conspiracy between

the police office, the public defender’s office, the state courts, and possibly

a cartel. See id. at 54.

4. ANALYSIS

4.1 Civil Rights Claims

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must

allege that: (1) she was deprived of a right secured by the Constitution or

laws of the United States; and (2) the deprivation was visited upon her by

a person or persons acting under color of state law. Buchanan-Moore v.

County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446

U.S. 635, 640 (1980). The Court is obliged to give Plaintiff’s pro se

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)).

The Fourth Amendment protects individuals from unreasonable

searches and seizures. U.S. Const. amend. IV. “The reasonableness of a

search is determined ‘by assessing, on the one hand, the degree to which it

intrudes upon an individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate governmental interests.’”

United States v. Knights, 534 U.S. 112, 118–19 (2001) (quoting Wyoming v.

Houghton, 526 U.S. 295, 300 (1999)). This typically requires the government

agent to have probable cause to conduct a search, which demands a “fair

probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). A search warrant

will embody the probable cause requirements; thus, warrantless searches

that are conducted without consent “are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions,” none of which are alleged to be present here.

Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted).

The Fourth Amendment also protects individuals from excessive

force during an arrest. Bayon v. Berkebile, 29 F.4th 850, 854 (7th Cir. 2022). To

evaluate a claim for excessive force, a court must “consider ‘the facts and

circumstances of each particular case, including 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 was actively resisting arrest or attempting

to evade arrest by flight.’” Id. (citing Siler v. City of Kenosha, 957 F.3d 751,

758–59 (7th Cir. 2020) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

The allegations in Plaintiff’s complaint illustrate a complicated and

traumatic life marred by several upsetting interactions with CPS and the

police. The Court gleans two instances of potential constitutional violations.

First, in July 2019, when, while investigating Plaintiff’s neighbor’s stabbing,

John Doe Ashwaubenon Police Officers drew their guns on Plaintiff (and

her family), arrested her, entered her home, and subsequently forced her to

consent to a search of her home. This appears to have been an unlawful

search and seizure in violation of her Fourth Amendment rights.

Second, in September 2019, Plaintiff alleges that she was roughed up

and restrained by the police after the death of her child. This is sufficient to

allege a violation of her Fourth Amendment right to an arrest with

reasonable force. However, it is not clear whether the Ashwaubenon Public

Safety Department or the Brown County Sheriff’s Office responded to this

call. Plaintiff named Lieutenant Amerson and Officer Hennessy as being

involved in this second arrest. The Court will, therefore, add Lieutenant

Amerson and Officer Hennessy as defendants to the docket given their

involvement and to facilitate discovery as to Plaintiff’s claims that law

enforcement beat her up.

4.2 Negligence Claims

Plaintiff has not stated negligence claims against Prevea Health or

St. Vincent’s Hospital. To sustain a claim for negligence, Plaintiff must

allege “(1) a breach of (2) a duty owed (3) that results in (4) an injury or

injuries, or damages.” Paul v. Skemp, 625 N.W.2d 860, 865 (Wis. 2001). The

Court may exercise supplemental jurisdiction over any negligence claims

that are related to the federal constitutional violations. 28 U.S.C. § 1367.

Plaintiff has not adequately alleged a breach of any standard of care.

The events involving these medical defendants arose at the beginning of the

COVID-19 pandemic when mortality in the United States was climbing to

a peak and hospitals were at risk of over-filling. At that time, little was

known about how the virus was transmitted and whether it had any severe

effect on children. Under these circumstances, which involve (1) Prevea

Health counselling Plaintiff to take care of her son at home if his airways

were clear; and (2) Saint Vincent’s Hospital’s refusal to let Plaintiff go in

and out of the pediatric intensive care unit, the Court finds that Plaintiff has

not adequately alleged that either defendant acted unreasonably.

Plaintiff also has not stated a negligence claim against CPS or her

caseworkers. As alleged, her interpersonal disputes with her case workers

do not give rise to a federal case. To the extent that Plaintiff takes issue with

her son’s placement with her aunt, federal courts refrain from hearing child

custody matters. Ankenbrant v. Richards, 504 U.S. 689, 703 (1992).

Additionally, as an entity, it would appear that CPS is barred from suit

without its consent pursuant to the Eleventh Amendment. See Rasheed v.

Floyd Cnty. CPS, 4:18-CV-156, 2019 WL 3208119, at *2 (S.D. Ind. 2019)

(dismissing Illinois CPS on Eleventh Amendment grounds). While perhaps

individual caseworkers could be sued for negligence, this Court does not

discern a basis for such a lawsuit based on the scattershot facts Plaintiff has

presented. For example, it is not clear whether James is still in the picture,

nor what Plaintiff told CPS regarding the abuse. In any case, such a lawsuit

would be unrelated to Plaintiff’s excessive force claim, and thus properly

the subject of a separate lawsuit. See George v. Smith, 507 F.3d 605, 607 (7th

Cir. 2007) (“Unrelated claims against different defendants belong in

different suits.”).

5. CONCLUSION

For the reasons stated herein, Plaintiff may proceed on the following

claims:

Claim One: A Fourth Amendment Claim against John Doe members

of the Ashwaubenon Public Safety Department, for unlawful arrest and

unlawful search, arising out of the incident with the neighbor’s stabbing in

July 2019; and

Claim Two: A Fourth Amendment Claim against John Doe Officers,

Lieutenant Amerson and Officer Hennessy, for excessive force arising from

Plaintiff’s arrest after the death of her child.

The Court will add Brian Uhl, the Chief of Public Safety of the Village

of Ashwaubenon, as a defendant in this matter for the limited purposes of

helping to identify the John Doe defendants involved in Plaintiff’s arrests.

Similarly, the Court will add Lieutenants Amerson and Officer Hennessy

for their involvement in Plaintiff’s excessive force claim. The Court will

dismiss Brown County, the Village of Ashwaubenon, Prevea Health, and

St. Vincent’s Hospital from the case. See Donald v. Cook Cnty. Sheriff’s Dep’t,

95 F.3d 548, 556 (7th Cir. 1996).

Federal Rule of Civil Procedure 4(c)(3) provides that the Court must

order service by the U.S. Marshals Service if a plaintiff is authorized to

proceed in forma pauperis under 28 U.S.C. § 1915. See Williams v. Werlinger,

795 F.3d 759, 760 (7th Cir. 2015). Congress requires the U.S. Marshals

Service to charge a fee for making or attempting such service. 28 U.S.C. §

1921(a). The current fee for service by mail is $8.00 per item mailed; for

process served personally by the U.S. Marshals Service, the fee is $65 per

hour. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).

Although Congress requires the Court to order service by the U.S. Marshals

Service because in forma pauperis plaintiffs are indigent, it has not made any

provision for these fees to be waived either by the Court or by the U.S.

Marshals Service. Thus, the Court will allow Plaintiff to elect, within

fourteen (14) days, whether she desires service by the U.S. Marshals Service

or whether she will obtain service of her own accord. If Plaintiff wants to

effect service herself, she should simultaneously file a request for the Clerk

of the Court to issue service packets to her.

The Court warns Plaintiff that if she fails to comply with this or

any of the Court’s orders, her case will be dismissed without further

notice for failure to prosecute.

Accordingly,

IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma

pauperis, ECF No. 2, be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that Defendants Brown County,

Village of Ashwaubenon, Prevea Health, and St. Vincent’s Hospital be and

the same are hereby DISMISSED from this action;

IT IS FURTHER ORDERED that the Clerk of Court add Brian Uhl,

the Chief of Public Safety of the Village of Ashwaubenon, as a defendant in

this matter for the limited purposes of helping to identify the John Doe

defendants involved in Plaintiffs arrests;

IT IS FURTHER ORDERED that the Clerk of Court add Lieutenant

Amerson and Officer Hennessy as defendants in this matter in light of

Plaintiffs excessive force claim; and

IT IS FURTHER ORDERED that Plaintiff shall file, within fourteen

(14) days, a notice indicating which method of service she desires.

Dated at Milwaukee, Wisconsin, this 27th day of May, 2022.

BY THE COURT:

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