Robles v. Widdman et al

Filing 9

ORDER signed by Chief Judge William C Griesbach on 7/14/2017 Granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. It is further ordered the complaint is DISMISSED without prejudice. Robles shall file an amended complaint on or before 8/13/2017. (cc: all counsel and via US Mail to Robles, Warden) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CRUZ ROBLES,
Plaintiff,
v.

Case No. 17-C-708

JENNIFER WIDDMAN, et al.,
Defendants.

ORDER

Plaintiff Cruz Robles, who is incarcerated at Racine Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes
before the court on the plaintiff’s petition for leave to proceed without prepaying the full filing fee.
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Plaintiff has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing fee of his complaint, as required under 28
U.S.C. § 1915(a)(2). Plaintiff lacks the funds to pay the partial filing fee. Therefore, the court
waives the initial partial filing fee. 28 U.S.C. § 1915(b)(4). Plaintiff’s motion to proceed in forma
pauperis will be granted.
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the prisoner has raised 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). 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); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997).
To state a cognizable claim under the federal notice pleading system, the plaintiff is required
to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain sufficient factual matter “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court accepts
the factual allegations as true and liberally construes them in the plaintiff’s favor. Turley v. Rednour,
729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint’s allegations “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
The precise nature of Robles’ action is unclear.

Robles claims he was wrongfully

incarcerated from April 21, 2015 to December 1, 2015 in Waukesha County, Wisconsin Case No.
2011CF1116. He alleges that his sentence was intended to be consecutive, but his probation agent
wrongfully determined that his sentence was concurrent. This makes no sense. If his sentence was
supposed to be consecutive and his PO made it concurrent, how did this error result in extra time
in jail? It should have caused less.
Robles also asserts that Judge Foster ordered that his sentence be consecutive to any other
sentence. He claims that as a result of the imposition of the consecutive sentence, his probation
agent revoked his probation on September 26, 2013, and he began serving the wrongfully imposed
sentence on or about April 21, 2015. But this doesn’t follow either. If the judge imposed a

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consecutive sentence, what did his PO have to do with it? Revoking his probation doesn’t affect the
sentence imposed by the judge.
Based on these confused factual allegations, Robles has brought this 42 U.S.C. § 1983 action
against his parole agent, her supervisor, and the regional supervisor seeking an award of damages
for each day he was wrongfully incarcerated as well as lost wages at $15.00 per hour. Although pro
se filings are to be read liberally, Robles’ complaint does not provide enough facts to determine
whether he states a claim upon which relief may be granted. The complaint does not allow any of
the named defendants or the court to understand what they are alleged to have actually done or not
done that caused him to serve additional time in jail over and above what the judge ordered as his
sentence. Robles needs to tell the court and the defendants the who, what, when, and where of his
claim, and what injury or damage the defendants’ actions actually caused the plaintiff. The essential
function of a complaint is to provide such notice, see Federal Rule of Civil Procedure 8(a), and the
defendants should not be forced to incur the cost of defending themselves in a federal lawsuit absent
some indication that the plaintiff has a cognizable federal claim and enough information so they know
what his claim is about.
I also note that in order for a plaintiff to prevail on an Eighth Amendment claim for continued
incarceration beyond the lawful sentence imposed by the court, the plaintiff must show more than
a mere mistake by government officers or employees. To establish liability under § 1983 on such
a claim, a plaintiff must prove three elements:
First, a plaintiff must demonstrate that a prison official had knowledge of the
prisoner's problem and thus of the risk that unwarranted punishment was being, or
would be, inflicted. Second, the plaintiff must show that the official either failed to
act or took only ineffectual action under the circumstances, indicating that his
response to the problem was a product of deliberate indifference to the prisoner's
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plight. Finally, the plaintiff must show a casual connection between the official's
response to the problem and the unjustified detention.
Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993); see also Campbell v. Peters, 256 F.3d 695, 700
(7th Cir. 2001) (noting that “courts that have recognized this problem have been careful to note that
the extended incarceration must also be the product of deliberate indifference before a constitutional
violation, as opposed to an error of state law, is implicated”). In other words, if Robles’
incarceration was extended beyond the sentence imposed by law, he must show it was the result of
something more than a simple mistake in order to establish a federal claim.
Some of the confusion may be the result of Robles’ use or misuse of the terms “concurrent”
and “consecutive” sentence. The court notes that concurrent sentences are sentences that are served
at the same time, while consecutive sentences are served sequentially, one after another. Based on
the allegations of Robles’ complaint, it appears he received his intended sentence, which would mean
that he was not wrongfully incarcerated. Therefore, if Robles wishes to proceed, he must file an
amended complaint that clearly sets forth the who, what, when, and where of what he alleges
occurred within the next thirty days. Failure to do so will result in the dismissal of the action.
The plaintiff is advised that the amended complaint must bear the docket number assigned
to this case and must be labeled “Amended Complaint.” The amended complaint supersedes the
prior complaint and must be complete in itself without reference to the original complaint. See Duda
v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998).
In Duda, the appellate court emphasized that in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading.” Id. at 1057 (citation omitted).
If an amended complaint is received, it will be screened pursuant to 28 U.S.C. § 1915A.

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IT IS THEREFORE ORDERED that the motion to proceed without prepaying the filing
fee (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the complaint is DISMISSED without prejudice.
IT IS ALSO ORDERED that Robles shall file an amended complaint on or before August
13, 2017 curing the defects in the original complaint.
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350.00 balance of the filing fee by collecting monthly
payments from the plaintiff’s prison trust account in an amount equal to 20% of the preceding
month’s income credited to the prisoner’s trust account and forwarding payments to the Clerk of
Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
The payments shall be clearly identified by the case name and number assigned to this action. If the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
Order along with plaintiff’s remaining balance to the receiving institution.
IT IS ALSO ORDERED that the plaintiff shall submit all correspondence and legal material
to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.

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The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of
Court of any change of address. Failure to do so could result in orders for other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated this 14th day of July, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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