Jackson v. State of Wisconsin Department of Corrections et al

Filing 14

ORDER signed by Judge Pamela Pepper on 9/4/2015 GRANTING 2 Motion for Leave to Proceed in forma pauperis; DENYING AS MOOT 8 Motion for Summary Judgment; DENYING 10 Motion for Leave to File Amended Complaint and Motion for Summary Judgment; DENYING AS MOOT 11 Motion to Appoint Counsel ; and SCREENING DISMISSING the complaint. (cc: all counsel; by US Mail to plaintiff) (pwm) Modified on 9/4/2015 (kmf).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEBRADRE D. JACKSON,
Plaintiff,
v.

Case No. 14-cv-1575-pp

STATE OF WISCONSIN DEPARTMENT OF CORRECTIONS,
FOX LAKE CORRECTIONAL INSTITUTION,
LT. GEORGE COOPER, and
DETECTIVE DANIEL STIEMSMA,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 2), DENYING AS MOOT PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 8), DENYING PLAINTIFF’S MOTION
FOR LEAVE TO FILE AN AMENDED COMPLAINT AND MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 10), DENYING AS MOOT PLAINTIFF’S
MOTION TO APPOINT COUNSEL (DKT. NO. 11), AND SCREENING
PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C.
§1983, alleging that the defendants violated his civil rights while he was
incarcerated at Fox Lake Correctional Institution. This order resolves the
plaintiff’s motion for leave to proceed in forma pauperis, the plaintiff’s motion
for summary judgment, the plaintiff’s motion for leave to file an amended
complaint and motion for summary judgment, and the plaintiff’s motion to
appoint counsel. The court also screens the plaintiff’s complaint, and dismisses
it.

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I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Dkt. No. 2)
The Prison Litigation Reform Act gives courts discretion to allow

prisoners to proceed with their lawsuits without pre-paying the $350 filing fee,
as long as they comply with certain requirements. 28 U.S.C. §1915. One of
those requirements is that the prisoner pay an initial partial filing fee. On
January 6, 2015, the court assessed an initial partial filing fee of $8.49, which
it ordered the plaintiff to pay by January 27, 2015. Dkt. No. 6. The plaintiff
paid that amount on January 23, 2015. The court will grant the plaintiff’s
motion for leave to proceed in forma pauperis, and will allow the plaintiff to pay
the balance of the $350.00 filing fee over time from his prisoner account, as
described at the end of this order.
II.

PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
(Dkt. No. 10)
Before screening the plaintiff’s complaint, the court will consider the

plaintiff’s motion for leave to file an amended complaint and motion for
summary judgment. These motions were filed in a single, eight-page, singlespaced document on July 28, 2015. The document is a confusing mix of the
two motions, and references both Federal Rule of Civil Procedure 15(a) (which
governs when a party may amend pleadings) and Federal Rule of Civil
Procedure 56 (the rule governing summary judgment).
The court begins by noting that any motion for summary judgment at
this stage, when the court has not yet screened the complaint, the complaint
has not been served on the defendants, and the defendants have not filed an

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answer, is premature. The court will deny the summary judgment portion of
the July 28, 2015 motion on that ground.
To the extent the court can separate the plaintiff’s motion for leave to file
an amended complaint from the plaintiff’s arguments for summary judgment,
the court also will deny that motion. Civil Local Rule 15(a) provides that any
amendment to a pleading “must reproduce the entire pleading as amended,
and may not incorporate any prior pleading by reference.” Civil Local Rule 15(b)
requires that a motion to amend “state specifically what changes are sought by
the proposed amendments” and have a proposed amended complaint filed as
an attachment to the motion.
There is no proposed amended complaint attached to the plaintiff’s
motion, just eight pages of argument regarding the plaintiff’s proposed claims
against five new defendants. Because the July 28, 2015 document does not
comply with Local Rule 15, the court will deny the plaintiff’s motion to amend
and screen his original complaint.
III.
A.

SCREENING OF PLAINTIFF’S COMPLAINT
Standard for Screening Complaints

The law requires the court 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 part or all of
a complaint if the plaintiff raises claims that are legally “frivolous or malicious,”
that fail to state a claim upon which relief may be granted, or that seek

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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 claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). A complaint, however, 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

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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).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, the court must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “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 the defendants: 1) deprived of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
B.

Facts Alleged in the Complaint

The plaintiff alleges that on April 15, 2011, defendant Lt. George Cooper
intentionally reported fabricated details about an incident at Fox Lake

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Correctional Institution (Fox Lake) that took place on April 4, 2011. Dkt. No. 1
at 3. Cooper added criminal intent to the description of the plaintiff’s conduct
and also reported injuries so that the plaintiff would be criminally charged. The
plaintiff was charged in state court with felony battery by a prisoner. Id.
Before this incident occurred, the plaintiff was scheduled to be released
on April 19, 2011, but he was detained on this charge until he was acquitted a
year later. Id.
According to the plaintiff, Cooper lied about the April 4 incident and
drafted and signed inconsistent statements. Moreover, Cooper’s testimony
under oath was not consistent with his initial statements. Cooper promised the
plaintiff that he would be charged with battery and given extra confinement. Id.
Detective Daniel Stiemsma investigated the charges, and the plaintiff
alleges that he did not properly investigate, that there was no probable cause to
charge the plaintiff with a new offense, and that the evidence was inconsistent
with the injuries Cooper reported and other statements. Id. at 3-4. The plaintiff
alleges that Stiemsma coached Cooper on what to say to get criminal charges
against the plaintiff. However, the plaintiff also states that Cooper lied to
Stiemsma. Id. at 4.
The plaintiff suggests that defendants Cooper and Stiemsma conspired to
have him charged with a crime, which kept him incarcerated for almost a year
beyond his scheduled release date. Id. at 7.

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C.

Legal Analysis of Alleged Facts

The plaintiff does not clearly state a legal theory for his claims against
the defendants, but it appears that perhaps he is trying to allege a malicious
prosecution. However, “[f]ederal courts are rarely the appropriate forum for
malicious prosecution claims.” Ray v. City of Chicago, 629 F.3d 660, 664 (7th
Cir. 2011).
A federal suit for malicious prosecution by state officers is permissible
only if the state in which the plaintiff had been prosecuted does not provide an
adequate remedy. Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir. 2001) (“the
existence of a tort claim under state law knocks out any constitutional theory
of malicious prosecution”). The state of Wisconsin recognizes the tort of
malicious prosecution. Strid v. Converse, 111 Wis. 418, 423, 331 N.W.2d 350
(Wis. 1983). Therefore, the plaintiff has a remedy in state court if it is a
malicious prosecution claim he wishes to bring.
Last year, the Seventh Circuit Court of Appeals addressed a fact pattern
similar to the plaintiff’s claims. Llovet v. City of Chicago, 761 F.3d 759 (7th Cir.
2014). In Llovet, “the plaintiff was already in jail, awaiting trial on a
misdemeanor domestic battery” when he was charged with aggravated battery.
Id. at 762. Llovet “claimed that the officers had prepared false police reports
and used them to persuade a state prosecutor to file a charge of aggravated
battery against him.” Id. at 760.
The plaintiff asked the Seventh Circuit to overrule Newsome, which was
based on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420

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(1981), but the court declined. Llovet, 761 F.3d at 763-64. In Parratt, the
Supreme Court “held that a claim based on the due process of the Fourteenth
Amendment is not actionable if the alleged violation was the unauthorized act
of a rogue state officer rather than the application of state law or policy, as long
as the state provides an adequate remedy for the wrongful act of the employee.
The Court reasons that the availability of such a state remedy is all the
‘process’ that the victim of such an act is ‘due.’” Llovet, 761 F.3d at 761.
The Seventh Circuit rejected the plaintiff’s argument “that the second
filing of criminal charges was in effect an arrest, for which probable cause was
lacking, and thus an unreasonable seizure.” Id. at 764. The court reasoned:
There is a difference between seizing a person and not
letting him go. The basis of the plaintiff’s prolonged
detention was the filing of a new charge against him ( .
. . ) after he was already in jail; and withholding a get
out of jail card is not an arrest, or any other sort of
seizure. When, after the arrest or seizure, a person is
not let go when he should be, the Fourth Amendment
gives way to the due process clause as a basis for
challenging his detention. It’s not unusual for new
charges to be filed against prisoners that delay their
release; it would be odd to think the Fourth
Amendment an available basis for challenging the
lawfulness of such delays. But that is the plaintiff’s
claim in this case.
Id. The court declined to expand the Fourth Amendment in that way and said:
An unlawfully protracted detention is actionable under
state law not only as malicious prosecution but also as
false imprisonment. If a state fails to provide adequate
remedies for such detention, the detention can be
challenged as a federal violation of due process, as we
explained in Julian v. Hanna. But if there is an
adequate state remedy, we can’t see the purpose of
stretching the Fourth Amendment to create a
duplicative federal remedy.

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Id.
In Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013), the Seventh
Circuit affirmed the principle that “a federal claim for malicious prosecution is
actionable only if the state fails to provide an adequate alternative, whether
called malicious prosecution or something else.” In that case, however, the
court determined that Indiana’s broad immunity statute for state officers
deprived plaintiffs who asserted due process claims against state officers of an
adequate state law remedy. Id. at 846. That is not the case in Wisconsin—
Wisconsin has a state cause of action for malicious prosecution.
Additionally, the court notes that “conspiracy is not an independent
basis of liability in § 1983 actions.” Smith v. Gomez, 550 F.3d 613, 617 (7th
Cir. 2008).
Because the plaintiff’s remedies lie in state court, the court will dismiss
his complaint.
The court also notes that, in addition to individual defendants Cooper
and Stiemsma, the plaintiff named as defendants Fox Lake Correctional
Institution and the State of Wisconsin Department of Corrections. The
Wisconsin Department of Corrections, however, is a state agency. “State
agencies are not ‘persons’ for purposes of the Civil Rights Act.” Toledo, Peoria &
Wester R. Co. v. State of Ill. Dept. of Transp., 744 F.2d 1296, 1298 (7th Cir.
1984). Similarly, Fox Lake Correctional Institution is a division of a state
agency (the Department of Corrections), and is not a “person” within meaning
of §1983. See Will v. Mich Dep’t of State Police, 491 U.S. 58, 66-67, 71, 109

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S.Ct. 2304, 105 L.Ed.2d 45 (1989); Williams v. Wisconsin, 336 F.3d 576, 580
(7th Cir. 2003); Smith v. Gomez, 550 F.3d 613, 618 (7th Cir. 2008). “‘[P]risons
. . . are not suable entities because they are not persons capable of accepting
service of plaintiff’s complaints or responding to them.’” Liske v. Wisconsin, No.
08-C-252, 2008 WL 905229, *1 (E.D. Wis. April 2, 2008) (quoting Maier v.
Wood Cnty. Courthouse, No. 07-C-580-C, 2007 WL 3165825, *2 (W.D. Wis.
Oct. 24, 2007)).
IV.

PLAINTIFF’S OTHER MOTIONS
The plaintiff also filed a motion for summary judgment (Dkt. No. 8) and a

motion to appoint counsel (Dkt. No. 11), but because the court is dismissing
the complaint, these motions are moot.
V.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed in forma

pauperis. Dkt. No. 2.
The court DENIES AS MOOT the plaintiff’s motion for summary
judgment Dkt. No. 8.
The court DENIES the plaintiff’s motion for leave to file an amended
complaint and motion for summary judgment. Dkt. No. 10.
The court DENIES AS MOOT the plaintiff’s motion to appoint counsel.
Dkt. No. 11.
The court DISMISSES this case pursuant to 28 U.S.C. §§1915(e)(2)(B)
and 1915A(b)(1) for failure to state a claim. The court orders the clerk of court
to enter judgment accordingly. The court also instructs the clerk of court to

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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), and
thus that this inmate has incurred a "strike" under 28 U.S.C. §1915(g).
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.
The court further ORDERS that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the $341.51 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 the 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.
The court will send a copy of this order to the warden of Racine
Correctional Institution.
Dated at Milwaukee this 4th day of September, 2015.

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