Stojanovic v. Kostich

Filing 7

ORDER signed by Judge J P Stadtmueller on 7/2/09 as follows: granting 2 plaintiff's motion for leave to proceed in forma pauperis; dismissing this action for failure to state a claim; directing the Clerk of Court to document that the plaintiff 's action was dismissed for failure to state a claim and that the plaintiff has incurred a "strike"; directing the Wis Dept of Corrections to collect the balance of the filing fee from the plaintiff's prison trust account and forwarding payment to the Clerk as specified. See Order. (cc: plaintiff, Warden of Wisconsin Resource Center, AAG Corey Finkelmeyer, all counsel of record)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
P E T E R STOJANOVIC, P l a i n t if f, v. N IK O L A P. KOSTICH. D e fe n d a n t. C a s e No. 09-CV-176

DECISION AND ORDER
T h e plaintiff, Peter Stojanovic, who is incarcerated at the W is c o n s in Resource C e n te r, filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that his c ivil rights were violated. This matter comes before the court on the plaintiff's p e titio n to proceed in forma pauperis and for screening of the plaintiff's complaint. T h e plaintiff is required to pay the statutory filing fee of $350.00 for this action. S e e 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fe e , he can request leave to proceed in forma pauperis. In this case, the plaintiff has file d a certified copy of his prison trust account statement for the six-month period im m e d ia te ly preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $4.75 and a n additional partial filing fee of $.03. The court will grant the plaintiff's motion for le a ve to proceed in forma pauperis. The court is required to screen complaints brought by prisoners seeking relief a g a i n s t 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 p ris o n e r 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 d e fen d a n t 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 fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o avoid dismissal for failure to state a claim, the complaint must contain a "s h o rt and plain statement of the claim showing that the pleader is entitled to relief." F e d . R. Civ. P. 8(a). It is not necessary for the plaintiff to plead specific facts; his s ta te m e n t need only "give the defendant fair notice of what the . . . claim is and the g ro u n d s upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2 2 0 0 (2007) (citations omitted). In deciding whether the complaint states a claim, th e court must accept as true all of the factual allegations contained in the complaint. B e ll Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). There is no heightened pleading requirement for pro se prisoner civil rights complaints. -2-

T h o m s o n v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). Of course, if a c o m p la in t pleads facts that show that a plaintiff does not have a claim, the complaint s h o u ld be dismissed "without further ado." Id. at 970. T o state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege: (1) th a t he was deprived of a right secured by the Constitution or laws of the United S ta te s ; and (2) that the deprivation was visited upon the plaintiff by a person acting u n d e r color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is o b lig e d to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tru c tio n . See Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 9 7 , 106 (1976)). T h e plaintiff's sworn complaint contains the following statement of claim: M y parents paid Mr. Kostich $5000.00 to appeal my c rim in a l conviction in 1999. He didn't provide reasonable c o u n s e l. Kostich was asked to return money. He did not a g re e . I filed two complaints to the Office of Lawyer R e g u la tio n . In 2005 Kostich was ordered to refund $ 3 2 0 0 .0 0 by the OLR. He was also publicaly [sic] re p rim a n d e d and costs of the proceedings were paid by h im . In April 2005 Attorney Ellen Henak successfully b ro u g h t my case back to the Court on Appeal. She was g ive n the exact same information as Kostich was. I was a b le to vacate my plea. I declined to do so. I was near th e end of my sentence. Had Kostich done the same a m o u n t of work that Henak did I would have went to trial. B u t because Kostich would not represent me or return the u n u s e d fee, I was not able to hire other counsel or be r e p r e s e n te d by other counsel and had to do the majority o f my 16 year sentence with a mandatory release date c a lc u la te d at 10 years 8 months.

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(P la in tiff's Complaint at 3-4). As legal authority, the plaintiff cites a number of W isc o n s in Supreme Court rules, W isc o n s in statutes, and the Eighth and Fourteenth A m e n d m e n ts . He requests $500,000 in compensatory damages. C rim in a l defense attorneys cannot be sued under 42 U.S.C. § 1983 because the y do not qualify as a "state actor." Polk County v. Dodson, 454 U.S. 312, 318 (1 9 8 1 ). Even an appointed public defender does not act under color of state law. Id . Here, where Kostich was privately retained, there is no question. He was not a c tin g under the color of law in his representation of and later dealings with the p la in tiff. As a result, the plaintiff's claim under § 1983 fails and the court lacks s u b je c t matter jurisdiction over the plaintiff's claims against Kostich. It also appears that the plaintiff and Kostich are both residents of W is c o n s in , s o there is not federal jurisdiction to hear this matter under the diversity statute. See 2 8 U.S.C. § 1332; Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 676 (7th C ir. 2006). Finally, because the plaintiff does not have a viable federal claim, the c o u rt will not exercise its supplement jurisdiction to entertain the plaintiff's state law c la im s . See 28 U.S.C. § 1367. The court will dismiss the plaintiff's complaint. Accordingly, IT IS ORDERED that the plaintiff's motion for leave to proceed in forma p a u p e r is (Docket #2) be and hereby is GRANTED. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED p u rs u a n t to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. -4-

IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s brought an action that was dismissed for failure to state a claim under 28 U.S.C. § § 1915(e)(2)(B) and 1915A(b)(1). IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s incurred a "strike" under 28 U.S.C. §1915(g). IT IS FURTHER ORDERED that the Secretary of the W is c o n s in Department o f Corrections or his designee shall collect from the plaintiff's prison trust account the $ 3 4 5 .2 2 balance of the filing fee by collecting monthly payments from the plaintiff's p ris o n trust account in an amount equal to 20% of the preceding month's income c re d ite d to the prisoner's trust account and forwarding payments to the Clerk of C o u rt each time the amount in the account exceeds $10.00 in accordance with 28 U .S .C . § 1915(b)(2). The payments shall be clearly identified by the case name and n u m b e r assigned to this action. IT IS FURTHER ORDERED that the Clerk of Court enter judgment a c c o r d in g ly . IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857.

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I FURTHER CERTIFY that any appeal from this matter would not be taken in g o o d faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide a rg u m e n ts supporting his appeal. D a te d at Milwaukee, W is c o n s in , this 2nd day of July, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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