Boyd v. Vagnini et al

Filing 9

SCREENING ORDER signed by Judge Lynn Adelman on 8/4/15 granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. Further ordering that this action is DISMISSED for failure to state a claim. Further orderi ng the Clerk of Court to 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 that this inmate has incurred a "strike" under 28 U.S.C. §1915(g). Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from the plaintiff's prison trust account the $349.88 balance of the filing fee as set forth herein. Further certifying 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. (cc: via USPS to plaintiff, Warden, WSPF) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEMETRIUS MONROE BOYD,
Plaintiff,
v.

Case No. 15-cv-802

MICHAEL VAGNINI, et al.,
Defendants.

SCREENING ORDER
Plaintiff, a Wisconsin state prisoner, filed a pro se complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. This matter is now before me on
plaintiff’s motion for leave to proceed in forma pauperis, his motion to appoint counsel, and
for screening of his complaint.
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 July 11, 2015, I assessed an initial partial filing
fee of $0.12. Plaintiff paid that fee on July 27, 2015. I will grant plaintiff’s motion to
proceed in forma pauperis.
Federal law requires that I 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). 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. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, a 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 a 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 a 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
allegations, courts must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.

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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). I am 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)).
Plaintiff alleges that his civil rights were violated during his arrest on January 4,
2008, and during the subsequent trial. Plaintiff was convicted on July 28, 2008. (Docket
#1 at 1; Case No. 08-CF-81). Plaintiff filed his complaint on July 2, 2015, nearly seven
years later. The conduct plaintiff complains about occurred outside of Wisconsin’s six-year
statute of limitations and, as a result, any claims arising in connection with his arrest and
trial are time-barred. Wis. Stat. § 893.53; Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir.
1997). As such, plaintiff fails to state a claim, and I will dismiss his complaint. See
Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 802 (7th Cir. 2008)
(“If the allegations of the complaint show that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for failure to state a claim.”) (internal
quotations omitted).
Finally, plaintiff has also filed a motion seeking appointment of counsel because he
cannot afford to hire one on his own. I have discretion to recruit counsel to represent a
litigant who is unable to afford one in a civil case. Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013); 28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864,
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866-67 (7th Cir. 2013). As a threshold matter, litigants must make a reasonable attempt
to secure private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
In this district, courts require that a plaintiff contact at least three attorneys to inquire about
representation. Plaintiff must provide me with the names of the attorneys he contacts, the
letters he mailed to the attorneys, and, if possible, the attorneys’ responses.
Once plaintiff demonstrates he has made a reasonable attempt to secure counsel
on his own, I will examine “whether the difficulty of the case – factually and legally –
exceeds the particular plaintiff’s capacity as a layperson to coherently present it.” Navejar,
781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This inquiry focuses not only on plaintiff’s
ability to try his case, but also includes other “tasks that normally attend litigation” such as
“evidence gathering” and “preparing and responding to motions.” Id.
Plaintiff has satisfied the initial step in the above described process by contacting
three attorneys; however, I will not appoint counsel to represent him.

There is no

assistance that counsel can provide that will overcome the fact that plaintiff’s claims are
barred by the statute of limitations. In light of these circumstances, appointing counsel is
unnecessary.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED.
IT IS ALSO ORDERED that plaintiff’s motion for the appointment of counsel (Docket
#3) is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.

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IT IS ALSO 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) and shall enter judgment accordingly
IT IS ALSO ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff's prison trust account the $349.88
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 ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined.
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 4th day of August, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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