Ealy v. Department of Corrections et al

Filing 8

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 10/31/2014. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Action DISMISSED without prejudice. Milwaukee County Sheriff to collect $331.81 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via US mail to Lamonte Ealy at Milwaukee County Jail, Milwawukee County Sheriff)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LAMONTE A. EALY,
Plaintiff,
-vs-

Case No.

14-CV-943

WISCONSIN DEPARTMENT OF CORRECTIONS,
SHAYLA FENCEROY, DIANN BINK,
JOHN DOES, and JANE DOES,
Defendants.

SCREENING ORDER

The plaintiff, who is confined at the Milwaukee County Jail, 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 to proceed in forma pauperis. He has been
assessed and paid an initial partial filing fee of $13.19.
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). 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

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
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.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that:
1) he was deprived of a right secured by the Constitution or laws of the United States; and 2)
the deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff alleges that on May 26, 2012, he was involved in a car accident.
He was then taken to the hospital where he was arrested for sexual assault, but the charges
were dropped. The plaintiff’s parole agent had him incarcerated at the Milwaukee Secure
Detention Facility (MSDF) pending an investigation. His extended supervision was revoked,
and the plaintiff was sentenced to serve nine months at MSDF for violating community

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supervision rules. The plaintiff alleges that the administrative law judge revoked his extended
supervision based on false allegations and without proof, and as a result the plaintiff had to
serve nine months in MSDF. He was not given an alternative to revocation despite lack of
evidence to revoke and positive conduct. The plaintiff seeks compensatory damages.
Claims challenging the fact or duration of state confinement are not cognizable
under § 1983. Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). This is true whether a
claimant seeks an injunction, Preiser v. Rodriguez, 411 U.S. 475, 490 (1973), or seeks
damages, Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and regardless of the nature of
that confinement, “whether a warrant, indictment, information, summons, parole revocation,
conviction or other judgment, or disciplinary punishment for the violation of a prison’s rules.”
Antonelli v. Foster, 104 F.3d 899, 900-01 (7th Cir. 1997); see also Knowlin v. Thompson, 207
F.3d 907, 909 (7th Cir. 2000) (finding that Heck bars a § 1983 suit that would necessarily
imply the invalidity of a parole revocation). However, a claimant is not barred from bringing
a § 1983 suit that challenges official misconduct unrelated to legal process, including
detention in the absence of any legal process. Antonelli, 104 F.3d at 901 (stating that Heck
would not bar a claim of “an unconstitutional arrest without a warrant, the gratuitous beating
of the arrested person, his confinement in the Black Hole of Calcutta whether pre- or
postconviction, and so forth”).
The plaintiff challenges the validity of his extended supervision revocation. As
such, his § 1983 claim is barred by Heck and this case will be dismissed without prejudice.

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See Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011).
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket # 2) be and hereby is GRANTED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Milwaukee County Sheriff shall collect
from the plaintiff’s prison trust account the $331.81 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.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
IT IS ALSO ORDERED that a copy of this order be sent to the Milwaukee
County Sheriff.
Dated at Milwaukee, Wisconsin, this 31st day of October, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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