Wilkins v. Borgmann

Filing 12

OPINION AND ORDER DISMISSING CASE pursuant to 28 U.S.C. § 1915A. Signed by Judge Rudy Lozano on 8/8/13. (mlc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DANIEL E. WILKINS,
Plaintiff,
vs.
LISBETH A. BORGMANN,
Defendant.

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CAUSE NO. 3:13-CV-278

OPINION AND ORDER
This matter is before the Court on the amended complaint filed
pursuant to 42 U.S.C. § 1983 by Daniel E. Wilkins, a pro se
prisoner, on May 23, 2013. For the reasons set forth below, this
case is DISMISSED pursuant to 28 U.S.C. § 1915A.

BACKGROUND
Daniel E. Wilkins, a pro se prisoner, alleges that Lisbeth A.
Borgmann, the Allen County Clerk of Court, (or some other unknown
employee(s) of the clerk’s office) backdated filings he sent to the
Allen Superior Court and did not present them to the judge for
review during his state post-conviction relief proceeding under
cause number 02D04-1004-PC-27. In support of his claim he presents
several documents including a Chronological Case Summary (CCS)
printed on February 2, 2013, (DE 6-1 at 9-12) and another one
printed on March 8, 2013, (DE 6-1 at 14-16). The March CCS printout
includes the missing filings which Wilkins speculates were withheld
and backdated.

DISCUSSION
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). However, pursuant to 28 U.S.C. § 1915A, the
court must review the merits of a prisoner complaint and dismiss it
if the action is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. A complaint must
contain sufficient factual matter to “state a claim that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). “[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (quotation marks, citations and footnote
omitted). “[W]here the well-pleaded facts do not permit the court

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to

infer

more

than

the

mere

possibility

of

misconduct,

the

complaint has alleged — but it has not shown — that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quotation marks and
brackets omitted). Thus, “a plaintiff must do better than putting
a few words on paper that, in the hands of an imaginative reader,
might suggest that something has happened to her that might be
redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403
(7th Cir. 2010) (emphasis in original). “In order to state a claim
under § 1983 a plaintiff must allege: (1) that defendants deprived
him of a federal constitutional right; and (2) that the defendants
acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670
(7th Cir. 2006).
Wilkins has concluded that his filings in the Allen Superior
Court were backdated, but he has not pled any facts which plausibly
support that conclusion. It appears that he believes that they were
backdated because they were not docketed the same day that they
were file stamped. This is not a reasonable inference. The March
CCS printout shows that the “missing” filings were docketed on
March 1, 2013. However, it also shows that they were received and
file stamped on December 28, 2013,1 January 9, 2013, and January
30, 2013. Wilkins has not pled any facts from which it can be
plausibly inferred that the clerk backdated any of these entries.
1

The December 28, 2013, date is clearly a scriveners error because that
date has not yet occurred. It seems likely that the correct date was December 28,
2012. Given that the CCS entry was made in 2013, erroneously entering 2013
instead of 2012 would be an common typo.

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Indeed, the March CCS printout shows that many of the judge’s
orders were not entered until a day or two (in one instance three)
days after they were signed. See (DE 6-1 at 14-15).2 This is not an
indication that the orders were backdated. Rather, the facts
presented merely show that it is not the routine practice of the
Allen County Clerk to contemporaneously docket filings when they
are received by the office. That does not state a claim.
Wilkins has also concluded that his filings were withheld from
the judge, but he has not pled any facts which plausibly support
that conclusion. Though the February CCS printout shows that the
case was dismissed before his filings were docketed, the March CCS
printout shows that the “missing” filings were received and file
stamped before the order of dismissal. It appears that Wilkins
surmises that the judge did not see them because they were not
docketed before the case was dismissed. This is mere speculation.
Though it is not the practice in this Court for a judge to
commonly review file stamped documents before they are docketed, a
review of the March CCS printout shows that this occurred four
other times in Wilkins’ Post-Conviction Relief proceeding. (DE 6-1

2

The order signed May 7, 2012, was docketed two days later on May 9, 2012.
The order signed May 30, 2012, was docketed one day later on May 31, 2012. The
order signed June 18, 2012, was docketed two days later on June 20, 2012. The
order signed October 29, 2012, was docketed two days later on October 31, 2012.
The order signed February 8, 2013, was docketed three days later on February 11,
2013.

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at 14-15).3 This pattern of docketing motions after they were ruled
on occurred two other times in this case. See Wilkins v. State,
02D04-1004-PC-27
official

(Allen

Indiana

Superior

trial

court

Court

filed

docket

April

sheet

7,

2010),

available

at

http://mycase.in.gov/.4 Clearly the State court judge saw all of
those filings even though they had not been docketed. If the judge
had not seen those motions, the judge could not have ruled on them.
The CCS shows that those filings cited above had been received and
file stamped days and weeks before they were docketed. In one
instance it was nearly a month before the file stamped document was
docketed. Therefore, based on the facts presented by Wilkins, it is
not reasonable to infer that anyone in the office of the Allen
County Clerk prevented the judge from seeing his filings.
Nevertheless,
consider)

all

of

if
the

the

judge

filings

did
before

not

see

denying

(or

refused

Wilkins’

to

post-

conviction relief petition, Wilkins is not without a remedy.
Wilkins can (and it appears that he did) file in the State trial
court a motion to correct error. In that motion he could have
alerted the State judge of his concerns and asked that the court

3

On May 7, 2012, that court issued an order ruling on a motion that was
not docketed until May 9, 2012. On May 30, 2012, that court issued an order
ruling on a motion that was not docketed until May 31, 2012. On June 18, 2012,
that court issued an order ruling on a motion that was not docketed until June
20, 2012. Then on October 29, 2012, that court issued an order ruling on two
motions that were not docketed until October 31, 2012.
4

On April 2, 2013, the State trial court issued an order ruling on two
filings that were not docketed until April 3, 2013.

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reconsider the post-conviction relief petition in light of all of
his filings. Additionally, Wilkins can raise this issue on appeal.
However, what he cannot do is sue the clerk based solely on his
speculation that someone improperly handled his filings.

CONCLUSION
For the reasons set forth above, this case is DISMISSED
pursuant to 28 U.S.C. § 1915A.

DATED: August 8, 2013

/s/RUDY LOZANO, Judge
United State District Court

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