Scott v. Carr Kulkoski & Stuller SC et al

Filing 9

DECISION AND ORDER signed by Judge Lynn Adelman on 2/24/15 granting 5 Motion for Leave to Proceed in forma pauperis; denying as moot 2 Motion for identification of civil action; denying as moot 8 second motion for identification of civil act ion. Further ordering that this action is DISMISSED for failure to state a claim and that the Clerk of Court document that this inmate has brought an action that was dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) a nd 1915A(b)(1) and that this inmate has incurred a "strike" under 28 U.S.C. §1915(g). Further ordering that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the plaintiff's prison trust account the $333.49 balance of the filing fee as set forth herein. Further ordering the Clerk of Court to enter judgment accordingly. (cc: via USPS to plaintiff, Warden-GBCI, AAG Corey Finkelmeyer) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEVEN DIONNE SCOTT,
Plaintiff,
v.

Case No. 14-CV-762

CARR KULKOSKI & STULLER SC and
ABC INSURANCE COMPANY,
Defendants,

DECISION AND ORDER
Plaintiff, Steven Dionne Scott, a state prisoner, filed a pro se complaint. This matter
comes before me on plaintiff's motion for leave to proceed in forma pauperis, plaintiff’s two
motions for identification of civil action, and for screening of plaintiff’s complaint.
The plaintiff has been assessed and paid an initial partial filing fee of $16.51. I will
grant his motion for leave to proceed in forma pauperis.
In each of plaintiff’s motions for the identification of civil action, plaintiff asks the
court to take note that his action is filed under 42 U.S.C. § 1981, the Civil Rights Act of
1886, 42 U.S.C. § 1985, the Civil Rights Act of 1871, and Wisconsin state law. Plaintiff’s
causes of action are identified in his complaint. Therefore, these motions are unnecessary
and I will deny them as moot.
I am required to screen complaints brought by prisoners seeking leave to proceed
in forma pauperis. 28 U.S.C. § 1915(e)(2). I 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. § 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); 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).
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). It is not necessary for the plaintiff to plead specific facts
and his statement need only “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

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In considering whether a complaint states a claim, courts should follow the principles
set forth in Twombly by first, “identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
Plaintiff’s complaint details at length the inadequacy of the legal work and
communication of his criminal post-conviction/appellate counsel, Attorney Glen B. Kulkoski.
Oddly, though, plaintiff has named as defendants only Attorney Kulkoski’s law firm and the
law firm’s insurance company.
In another case, Case No. 13-cv-980 (E.D. Wis.), I instructed plaintiff repeatedly that
his claims against his workers compensation attorneys belonged in state court. Attorneys
representing litigants, even those paid by the State Public Defender, are not state actors
and cannot be sued under 42 U.S.C. § 1983. See Polk v. Dodson, 454 U.S. 312, 318, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981); Walton v. Neslund, 248 Fed.Appx. 733, 733-34 (7th Cir.
2007).
This explains plaintiff’s insistence that he is not bringing his claims in this case under
§ 1983. However, plaintiff fares no better under the other civil rights statutes he has cited.
To establish a prima facie claim under § 1981, the plaintiff must show that (1) he is
a member of a racial minority; (2) the defendants had the intent to discriminate on the basis
of race; and (3) the discrimination concerned the making or enforcing of a contract. Morris
v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). Plaintiff’s complaint contains none
of these elements.
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The other statute plaintiff cites, 42 U.S.C. § 1985 prohibits conspiracy to interfere
with civil rights. First, plaintiff’s complaint addresses only the actions of Attorney Kulkoski.
There are no facts that suggests he conspired with anyone, let alone his law firm or an
insurance company, to deprive plaintiff of his civil rights.
Second, to establish a claim for civil conspiracy under § 1985(3), a plaintiff must
demonstrate 1) the existence of a conspiracy, 2) a purpose of depriving a person or class
of persons of equal protection of the laws, 3) an act in furtherance of a conspiracy, and 4)
an injury to person or property or a deprivation of a right or privilege granted to United
States citizens. Hernandez v. Joliet Police Dept., 197 F.3d 256, 263 (7th Cir. 1999).
Claims under §§ 1985(3) require allegations or “racial or class-based discrimination,” i.e.,
there must be some averment of “some racial, or perhaps other class-based invidiously
discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S.
88, 102 (1971). Plaintiff’s complaint does not state a claim under § 1985.
Plaintiff’s complaint sets forth state law legal malpractice claims against Attorney
Kulkoski. In the complaint, plaintiff does not even attempt to explain why he has named
the law firm and the insurer and not Attorney Kulkoski. He acknowledges that he has
already filed a grievance with the Office of Lawyer Regulation as well as a petition for a writ
of habeas corpus. These are his appropriate means of redress, not a lawsuit in federal
court.
THEREFORE, IT IS ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #5) is GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s motion for identification of civil action
(Docket #2) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s second motion for identification of civil
action (Docket #8) is DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
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 has
incurred a "strike" under 28 U.S.C. §1915(g).
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 $333.49
balance of the filing fee by collecting monthly payments from 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.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney

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General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments
supporting his appeal.
Dated at Milwaukee, Wisconsin, this 24th day of February, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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