Cox v. Milwaukee County District Attorney's Office et al
Filing
8
ORDER signed by Judge J P Stadtmueller on 5/21/13: granting 4 Plaintiff's Motion for Leave to Proceed in forma pauperis; directing the Secretary of the Wisconsin Dept of Corrections or his designee to collect from Plaintiff's prison tru st account the $350.00 balance of the filing fee owed by collecting monthly payments and forwarding same to the clerk of the court as specified; Plaintiff shall file an amended complaint within 30 days of the entry of this order. See Order. (cc: Plaintiff, Warden of Green Bay Correctional Institution, all counsel) (nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DWAYNE COX,
Plaintiff,
v.
Case No. 13-CV-434-JPS
MILWAUKEE COUNTY DISTRICT
ATTORNEY’S OFFICE,
MR. ZIER, and MR. DENIS STINGL,
ORDER
Defendants.
In 1992, the plaintiff, Dwayne Cox, was convicted by a jury of first
degree intentional homicide and armed robbery as party to a crime. (See, e.g.,
Docket #1, Ex. E, at 1–2). Prior to trial, Mr. Cox’s accomplice provided a
statement to police that both he and Mr. Cox had struck the victim, strangled
her, and then stabbed her; Mr. Cox, himself, provided the investigating
officers with a consistent confession. (Docket #1, Ex. E, at 1–2). Mr. Cox
testified at trial and essentially contradicted his entire original confession,
instead stating that he had not participated in the murder. (Docket #1, Ex. E,
at 2). Despite this change in his account of the events, the jury convicted Mr.
Cox, who eventually received a sentence of life imprisonment on the
homicide charge and twenty years consecutive on the armed robbery charge.
(Docket #1, Ex. E, at 2).
Nearly twenty years later, on February 15, 2012, Mr. Cox filed a
motion for post-conviction DNA testing under Wis. Stat. § 974.07, in the
Wisconsin courts system. (Docket #1, Ex. A). Wis. Stat. § 974.07(2) allows any
convicted individual to move in the court in which he was convicted for an
order requiring DNA testing of evidence in the underlying case, so long as
three conditions are met: (1) the evidence is relevant to the conviction; (2) the
evidence is in the government’s possession; and (3) the evidence had not
been previously subject to DNA testing (or had been subject to DNA testing
of a less-advanced degree than that available at the time of the motion). Wis.
Stat. § 974.07(2). Assuming that those requirements are met, the circuit court
must then determine whether to order testing by evaluating the convicted
individual’s request for testing under Wis. Stat. § 947.07(7). The circuit court
should order DNA testing when, among other findings, it determines that it
is “reasonably probable that the movant would not have been prosecuted
[or] convicted” or that it is “reasonably probable that the outcome of the
proceedings…would have been more favorable to the movant” had
exculpatory DNA evidence been available. Wis. Stat. §§ 947.07(7)(a–b).
After Mr. Cox had filed his motion and the State of Wisconsin had
been afforded the opportunity to respond, the Milwaukee County Circuit
Court entered an order denying Mr. Cox’s request for a DNA test. (Docket
#1, Ex. E). The Milwaukee County Circuit Court filed that order on April 26,
2012. (Docket #1, Ex. E, at 3). According to Mr. Cox’s complaint and the
Court’s independent check of the Wisconsin Court of Appeals access
database, Mr. Cox has not appealed the Milwaukee County Circuit Court’s
order.
Instead, Mr. Cox filed the case now at hand. In it, he asserts a 42 U.S.C.
§ 1983 claim against the Milwaukee County District Attorney’s Office and the
two prosecutors assigned to his case. (Docket #1). He also filed a motion for
leave to proceed in forma pauperis (Docket #4).
Before the court may allow this action to proceed or grant Mr. Cox’s
motion to proceed in forma pauperis, it must screen his complaint and dismiss
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it or any portion of it, if Mr. Cox 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). The court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).
Mr. Cox raises only one legal claim: that he is entitled to have his DNA
tested. The issue of whether Mr. Cox’s claim is frivolous, malicious or fails to
state a claim is very difficult to determine. While, at first, the Court’s reaction
was that Mr. Cox’s claim should be barred under the Rooker-Feldman doctrine
as a collateral attack on a state court judgment, further research gave the
Court pause. In Skinner v. Switzer, the Supreme Court held that RookerFeldman does not bar a prisoner’s 42 U.S.C. § 1983 action seeking DNA
testing of crime scene evidence. Skinner v. Switzer, --- U.S. ----, 131 S.Ct. 1289,
1297 (2011). However, the Supreme Court made sure to note that the plaintiff
in that case did “not challenge the adverse [court] decisions themselves;
instead, he target[ed] as unconstitutional the Texas statute they
authoritatively construed.” Id., at 198. Thus, the 42 U.S.C. § 1983 suit in
Skinner was not a prohibited review of a state court decision by a lower
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federal court, but was instead a permissible federal challenge to a statute. Id.
(citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 487 (1983);
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 286 (2005)).
Since the Supreme Court issued its Skinner decision, the Seventh Circuit has
further extrapolated Skinner’s holding, in conjunction with the holdings in
the preceding related cases of Wilkinson v. Dotson and Heck v. Humphrey. Burd
v. Sessler, 702 F.3d 429, 432–33 (7th Cir. 2012). Essentially, the Seventh Circuit
has treated Skinner as holding that 42 U.S.C. § 1983 suits challenging the
denial of DNA evidence are permissible, so long as they satisfy Heck’s
requirement that a federal judgment in the 42 U.S.C. § 1983 action “will not
demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff.” Burd, 702 F.3d at 433 (citing Heck, 512 U.S. at 487).
In analyzing whether to allow Mr. Cox’s suit to proceed, there are two
important things to remember. First, Mr. Cox is not challenging his criminal
judgment, per se. Just as was the case in Skinner, and as Mr. Cox points out in
his complaint, if this Court were to hold that Mr. Cox is entitled to DNA
evidence, that fact standing alone does not establish invalidity of the
underlying criminal judgment against Mr. Cox. Skinner, 131 S.Ct. at 1298–99
(citing Nelson v. Campbell, 541 U.S. 637, 647 (2004), and pointing out that DNA
“results might prove inconclusive or they might further incriminate Skinner”
and would not necessarily imply the invalidity of the underlying criminal
judgment).
However, second, the Court must also be aware that a decision
granting post-conviction DNA testing would necessarily imply the invalidity
of a state court judgment. The Milwaukee County Circuit Court held that
Mr. Cox is not entitled to additional DNA testing. Mr. Cox did not appeal
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that decision, but instead challenged it directly in this Court. That move
looks suspiciously similar to the Rooker-Feldman prohibition against
“cases…brought by state-court losers…inviting district court review and
rejection of [a state court’s] judgments.” Exxon, 544 U.S. at 284.
It is not entirely clear which of those two scenarios Mr. Cox proceeds
under—whether he is attempting to complain that the application of the
Wisconsin statute to him deprives him of civil rights, thus enabling a suit
under 42 U.S.C. § 1983; or whether he is attempting (perhaps impermissibly)
to directly challenge the Milwaukee County Circuit Court’s decision in this
federal court.
Mr. Cox’s citations point to the former. He cites to a line of cases
construing requests for DNA relief under 42 U.S.C. § 1983. Moreover, similar
to what the plaintiff did in Skinner, Mr. Cox has sued the assistant district
attorneys who prosecuted him and the Milwaukee County District
Attorney’s Office, who are allegedly in possession of the DNA evidence Mr.
Cox seeks.
However, he specifically asks this court to remand this matter to the
Milwaukee County Circuit Court to enforce an order to produce the DNA
evidence—a request that is much more in line with the impermissible direct
review of state court decisions. (Docket #1, at 6).
In the end, the Court is obliged to determine that Mr. Cox is
attempting to proceed in this matter by claiming a deprivation of his rights
under 42 U.S.C. § 1983. Where the plaintiff proceeds pro se, this Court must
give the plaintiff’s complaint a liberal construction, no matter how “inartfully
pleaded” the complaint may be. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, despite Mr. Cox’s
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confusing complaint, the Court will construe it liberally to allege the only
possible claim that Mr. Cox can make in this situation: a 42 U.S.C. § 1983
claim asserting that he has been denied procedural due process by the
Wisconsin court’s construction of Wisconsin’s post-conviction DNA statute.
See, e.g., Skinner, 131 S.Ct. at 1296.1 Additionally, this decision is fully in line
with the Supreme Court’s repeated statement that this form of 42 U.S.C.
§ 1983 suit should be allowed to proceed where it would not necessarily imply
the invalidity of a state criminal judgment. See, e.g., Skinner, 131 S.Ct. at
1298–99; Dotson, 544 U.S. at 82; Heck, 512 U.S. at 487; Nelson, 541 U.S. at 647.
Having addressed the first screening prong under 28 U.S.C.
§ 1915A(b)(1), the Court must now examine the second: whether any of the
defendants are immune from suit. Under Monell v. Department of Social
Services, 436 U.S. 658, municipalities may be subject to liability in suits
brought under 42 U.S.C. § 1983 if the municipality engaged in an official
policy, regulation, ordinance, or custom that deprived the plaintiff of his
constitutional rights. Here, the Court has construed Mr. Cox’s complaint to
allege that he was deprived of his civil rights through the application of
Wisconsin’s DNA statute to him. Though that claim may be tenuous, as the
Court has already noted, the Milwaukee County District Attorney’s office
may be viewed to have some official policy related to that application that
deprives Mr. Cox of his constitutional rights, and therefore the Court cannot
1
Mr. Cox likely has an uphill battle in this regard. In Skinner, the plaintiff
made clear that he was challenging Texas’ state collateral review procedures.
Skinner, 131 S.Ct. at 1301, and fn. 2 (Thomas, dissenting). Here, it is not clear that Mr.
Cox is challenging the procedure provided by Wisconsin’s statute or courts. Indeed,
given his failure to even appeal the Milwaukee County Circuit Court’s order
denying his request for access to evidence, the Court has difficulty pinpointing Mr.
Cox’s injury-in-fact.
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determine that the Milwaukee County District Attorney’s office is immune
from suit at this time. However, traditionally municipal departments are not
separately suable entities, and claims against them should instead be brought
against the municipality, itself. Martin A. Schwartz, SECTION 1983 LITIGATION
CLAIMS AND DEFENSES, Suable Entities, § 7.03 (2013). Accordingly, Mr. Cox
may sustain this claim, but (as further required below) must amend his
complaint to allege his claims against Milwaukee County instead of the
district attorney’s office. Moreover, governmental employees may be held
personally liable for violations of constitutional rights. See, e.g., Dennis v.
Higgins, 498 U.S. 439 (1991); Gomez v. Toledo, 446 U.S. 635 (1980). The Court
notes that, in reaching this decision, it is not holding that the immunity issue
is conclusively settled. Rather, it holds only that, at this point, the record is
not clear enough to establish whether any defendant may be immune from
suit.2
While the Court has construed this claim liberally and will allow Mr.
Cox to maintain this action, it must request that he file an amended
complaint that more clearly sets out his allegations that the Wisconsin postconviction DNA testing statute, as applied by the Wisconsin courts, violates
his procedural due process rights. Without an amended complaint that more
cognizably sets forth those allegations, the Court cannot expect the named
defendants to file an answer. The defendants should not be expected to
respond to claims against them that they (and the Court) can hardly
understand. Furthermore, as the Court set forth above, Mr. Cox must also
2
Thus, at a point in the future, the defendants should be aware that this
issue may still be raised as the Court is not definitively foreclosing it, but is rather
simply allowing Mr. Cox’s complaint to escape dismissal at this early stage.
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amend his complaint to name Milwaukee County, instead of the district
attorney’s office, as named defendant. Mr. Cox is advised that the amended
complaint must bear the case number assigned to this case and must be
labeled “Amended Complaint.” The Court also warns Mr. Cox that the
amended complaint will supersede 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). Mr. Cox must file his
amended complaint within 30 days of the entry of this order. Failure to file
an amended complaint within this time period will result in dismissal of this
action without further notice. After the Court receives Mr. Cox’s complaint,
it will direct that the complaint be served upon the defendants.
Having found that Mr. Cox has stated a cognizable claim against
suable defendants, the Court will allow this case to proceed and will also
grant the defendant’s motion to proceed in forma pauperis. However, as
already noted, Mr. Cox must file an amended complaint in compliance with
the Court’s directives. After he files that amended complaint, the Court will
direct that it be served on the named defendant(s).
Accordingly,
IT IS ORDERED that the plaintiff’s motion to proceed in forma
pauperis (Docket #4) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the $350.00 balance of the filing fee by collecting
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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 the court 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
number assigned to this action;
IT IS FURTHER ORDERED that the plaintiff file an amended
complaint within 30 days of the entry of this order;
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined; and
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable J.P. Stadtmueller
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.
Dated at Milwaukee, Wisconsin, this 21st day of May, 2013.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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