Peters v. Lynch et al
Filing
10
ORDER Granting Plaintiff's Motion for Leave to Proceed IFP 2 , Denying as Moot Plaintiff's Motion to Show Cause 9 , and Dismissing Plaintiff's Case. Signed by Judge Charles N Clevert, Jr on 11/9/15. Copy of Order sent to Plaintiff and Warden at FCI Marianna. ((kwb), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TRACY A. PETERS,
Plaintiff,
v.
Case No. 15-C-546
PATRICK LYNCH, et al.,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS (DOC. 2), DENYING AS MOOT PLAINTIFF’S MOTION TO
SHOW CAUSE (DOC. 9), AND DISMISSING PLAINTIFF’S CASE
Plaintiff, Tracy A. Peters, a federal prisoner proceeding pro se, filed this action
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), alleging violations of his civil rights. Now, the matter is before the court
on plaintiff's motion for leave to proceed in forma pauperis, his motion to show cause, and
for screening of the plaintiff’s complaint.
Plaintiff has been assessed and has paid his initial partial filing fee of $65.09.
However, plaintiff failed to submit his initial partial filing fee by the original deadline. As a
result, the court issued an Order to Show Cause why the case should not be dismissed for
non-payment of the initial partial filing fee. Plaintiff’s motion to show cause was a response
to that order and does not seek independent relief. Additionally, the court received
plaintiff’s motion to show cause more than two weeks after receipt of plaintiff’s tardy initial
partial filing fee.
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).
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).
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
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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 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 claims in the complaint relate to plaintiff’s 2006 federal criminal conviction for
Second Degree Murder in Case No. 05-CR-253-WCG. The litany of defendants include
federal prosecutors, FBI agents, Menominee Tribal Police, and the U.S. District Judge who
presided in plaintiff’s criminal case. Plaintiff suggests a conspiracy and violations of his
rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.
Initially, plaintiff makes general assertions regarding policies that affected his
criminal case. Plaintiff suggests that defendants conspired to create a policy, practice, or
pattern in 2001 that lowered the federal evidentiary threshold from plausible to viable. He
believes this lowered standard led to his indictment on September 22, 2005, and his April
20, 2006 conviction.
Plaintiff also asserts that the United States Attorney and the Federal Bureau of
Investigation implemented a policy in 2001 of removing elements of Indian case charges.
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He says they required his Menominee Tribe to submit more cases per month for federal
indictment or risk losing federal funding for tribal law justice programs.
Plaintiff claims invidious racial animus towards him and suggests a policy of
providing less investigative services in Indian cases than in non-Indian cases.
With regard to his own criminal case, plaintiff asserts arguments about the
investigation of his crime and the evidence supporting his conviction. For example, he
says he was denied material exculpatory evidence because police did not collect a golf
club found some distance from certain trailers. The victim and his “gang” attempted to
physically assault plaintiff by swinging the golf club at him and grazing his throat, then
chased plaintiff with the golf club and discarded it where the officers saw it. Plaintiff
believes a number of “Mexicans” who were witnesses left the country and that one of them
may have left fingerprints on the murder weapon. Finally, plaintiff challenges the testimony
of eyewitness Destiny Lyons.
Plaintiff seeks a jury trial in this case and injunctive and declaratory relief. He also
mentions equitable tolling, but he gives no reason why his claims should have been
equitably tolled.
As an initial matter, plaintiff may not proceed on claims that challenge his criminal
conviction. Those claims must be pursued as a petition for a writ of habeas corpus under
28 U.S.C. § 2255. Plaintiff has already filed two petitions for writs of habeas corpus (Case
Nos. 08-CV-729-WCG and 11-CV-220-WCG). Neither overturned plaintiff’s conviction.
Next, plaintiff may not proceed on claims that call into question the validity of his
criminal conviction. Such claims are barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), which bars any suit under § 1983 where “a judgment in favor of the plaintiff would
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necessarily imply the invalidity of his conviction” unless the conviction has already be
invalidated. The Heck rationale applies not only to § 1983 actions, but to Bivens actions
as well. Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (applying Heck analysis to
Bivens action).
Finally, it is apparent from the face of the complaint that this action is untimely, even
if plaintiff had valid claims. A district court may dismiss a complaint if it is obvious that the
plaintiff has failed to file suit within the applicable statute of limitations. Limestone Dev.
Corp., v. Vill. of Lemont, 520 F.3d 797, 802 (7th Cir. 2008); Walker v. Thompson, 288 F.3d
1005, 1010 (7th Cir. 2002). See also Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009).
“The statute of limitations for § 1983 and Bivens actions is determined by the
statute of limitations for personal injury actions in the state where the incident forming the
basis of the claim occurred.” King v. One Unknown Federal Correctional Officer, 201 F.3d
910, 913 (7th Cir. 2000). Wisconsin’s personal rights statute of limitations is six years.
Wis. Stat. § 893.53. Plaintiff filed this complaint on May 6, 2015, more than nine years
after his conviction. Consequently,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma pauperis (Doc.
2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to show cause (Doc. 9) is DENIED
AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
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IT IS FURTHER ORDERED that the Director of the Bureau of Prisons or his
designee shall collect from plaintiff's prison trust account the $284.91 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 ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
This order and the judgment to follow are final. A dissatisfied party may appeal this
court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Federal Rule of Appellate
Procedure 3, 4. This court may extend this deadline if a party timely requests an extension
and shows good cause or excusable neglect for not being able to meet the 30-day
deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within 28 days of the entry of judgment. The court cannot extend this
deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time, generally no more than one
year after the entry of the judgment. The court cannot extend this deadline. See Federal
Rule of Civil Procedure 6(b)(2).
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A party is expected to closely review all applicable rules and determine, what, if any,
further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 9th day of November, 2015.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
U.S. District Judge
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