Edwards v. Takaca et al
Filing
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DECISION AND ORDER signed by Judge Pamela Pepper on 5/16/2016 GRANTING 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee and STAYING Plaintiff's Complaint pending resolution of Milwaukee County Case 15-CF-2912. (cc: all counsel; by US Mail to Plaintiff and Maricela Castillo and Mary Wenten at Milwaukee County House of Correction) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROBERT E. EDWARDS,
Plaintiff,
v.
Case No. 15-cv-1324-pp
MELISSA TAKACA,
JAMES RAEL,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), AND STAYING PLAINTIFF’S
COMPLAINT
______________________________________________________________________________
The plaintiff, a state prisoner who is representing himself, filed a
complaint alleging that defendants violated his civil rights by tampering with
evidence in his pending criminal trial in Milwaukee County case no. 15CF2912.
Dkt. No. 1. This order resolves the plaintiff’s motion for leave to proceed in
forma pauperis and screens the plaintiff’s complaint.
I.
IN FORMA PAUPERIS STATUS
The Prison Litigation Reform Act applies to this action because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
law allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
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initial partial filing fee, the court may allow the plaintiff to pay the balance of
the $350 filing fee over time, through deductions from his prisoner account. Id.
On November 24, 2015, the court assessed an initial partial filing fee of
$21.76. Dkt. No. 4. The plaintiff paid that amount on December 9, 2015.
Therefore, 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.
SCREENING OF PLAINTIFF’S AMENDED COMPLAINT
A.
Standard for Screening Complaints
The Prison Litigation Reform Act requires federal courts 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
may dismiss an action or portion thereof if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
To state a claim under the federal notice pleading system, plaintiffs must
provide a “short and plain statement of the claim showing that [he] is entitled
to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead specific facts,
and need only provide “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)). “Labels and conclusions” or
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a “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two step analysis set forth in Twombly to
determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, the
Court determines whether the plaintiff’s legal conclusions are supported by
factual allegations. Id. Legal conclusions not support by facts “are not entitled
to the assumption of truth.” Id. Second, the Court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives 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)).
B.
Facts Alleged in the Proposed Complaint
On June 22, 2015, the police arrested the plaintiff on two outstanding
warrants for: (1) Retail Theft, and (2) Possession of a Firearm by a Felon. Dkt.
No. 1 at 3. The Milwaukee County Circuit Court held an arraignment on June
24, 2015 and scheduled the preliminary hearing for July 7, 2015. Id. The
court then postponed the preliminary hearing to July 14, 2015 because the
state did not possess the certificate of conviction. Id.
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The plaintiff alleges that the twelve-day delay in scheduling the
preliminary hearing violated his right to a speedy trial. Id. He also asserts that
police officer Melissa Takaca tampered with evidence and altered witness
statements in his criminal case. Id. Finally, the plaintiff alleges that defense
counsel James Rael “changed the posture of the case without [his] presence or
approval.” Id. The plaintiff’s case went to trial before a jury in Milwaukee
County Circuit Court on April 18, 2016; the trial concluded the next day.
https://wcca.wicourts.gov/courtRecordEvents.do;jsessionid=3C6651DFCDE88
937CE79FB0DFAB2DB24.render6?caseNo=2015CF002912&countyNo=40&cac
heId=6F00C71006627170B1E8533CD914AB1A&recordCount=1&offset=0&link
OnlyToForm=false&sortDirection=DESC (last visited May 15, 2016). Sentencing
is scheduled to take place on June 10, 2016 at 8:30 a.m. Id.
The plaintiff requests: (1) the transcripts he petitioned for earlier in his
criminal case, and (2) that his “civil rights and constitutional rights [be]
respected by [the] Milwaukee Court system.” Id. at 5. The plaintiff is uncertain
whether he seeks monetary relief. Id.
C.
Legal Analysis of Alleged Facts
The defendant’s criminal case in the Milwaukee County Circuit Court is
not over. He filed this case, in fact, five months before his case even went to
trial. On January 7, 2016—three months before his state-court trial—the
plaintiff filed a motion, asking this court to take judicial notice (under
Wisconsin evidence law, rather than under Federal Rules of Evidence 201) of
things that had happened at a hearing in December 2015 (relating to the claim
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he raises in this case). Dkt. No. 7. Then, on April 28, 2016—about ten days
after his trial ended—the plaintiff filed a letter addressed to “Jon”—presumably,
clerk of the district court Jon Sanfilippo—asking for a “dispositive motion” and
an “appeal form.” Dkt. No. 9. The plaintiff appears to be asking the clerk of the
federal court to send him forms so that he can file an appeal from the jury’s
conviction of him in the state proceedings.
First, it is important for the plaintiff to understand that if he wants to
appeal the conviction the jury returned against him in the state court case, he
must file that appeal in state court—in Milwaukee County Circuit Court.
Further, the plaintiff’s case in state court won’t be finished until his sentencing
on June 10, 2016, and he can’t file an appeal in state court until the criminal
case is finished. The plaintiff also has a lawyer representing him in state
court—Attorney Daniel McMurray. The plaintiff should talk to Attorney
McMurray about the process for appealing his state conviction to the state
court of appeals. This court—the United States District Court for the Eastern
District of Wisconsin—is not the appeals court for Milwaukee County.
In fact, federal law prohibits federal judges from intervening in state
prosecutions unless there are extraordinary circumstances involved. The
Younger abstention doctrine provides that absent extraordinary circumstances,
federal courts must abstain from exercising jurisdiction over federal
constitutional claims that may interfere with on-going state proceedings. See
SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010). Extraordinary
circumstances exist only where the danger of irreparable loss is both great and
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immediate. Younger v. Harris, 401 U.S. 37, 45 (1971). Federal claims arising
from illegal searches, seizures, and detentions involve constitutional issues
that a criminal defendant has the ability to litigate during the course of the
state criminal case. See Gakuba v. O’Brien, 711 F.3d 751, 751 (7th Cir. 2013).
Such issues do not present a danger of irreparable and immediate loss—the
defendant can litigate them during his trial in state court. See id. If the
defendant loses at trial, he can appeal to higher state courts for relief, such as
the Wisconsin Court of Appeals or the Wisconsin Supreme Court. For that
reason, courts typically stay the federal civil rights action pending resolution of
the state criminal case. Id.
Because the plaintiff’s state criminal case is not over, there is nothing the
federal court can do for him at this time. In order for this court to consider the
plaintiff’s claims, he must complete his sentencing and then exhaust all of his
appellate, or post-conviction, options in state court. Only when the plaintiff has
litigated his claims to the highest state court can this court consider his
claims. This court must, therefor, stay the federal case pending resolution of
Milwaukee County case 15CF2912 and any subsequent post-conviction or
appellate procedures.
The court also must advise the plaintiff that neither federal clerk of court
Jon Sanfilippo nor the court can assist him in his state case or appeals. This
court does not have any state forms to give the plaintiff. He must get those
from the clerk of court for Milwaukee County, or better yet, from his attorney.
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The court will not respond to requests for state court forms or requests for
information about state court procedures.
III.
CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed in forma
pauperis. Dkt. No. 2. The court ORDERS the Secretary of the Wisconsin
Department of Corrections or his designee to collect from the plaintiff's prison
trust account the $350.00 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 Secretary
shall clearly identify the payments by the case name and number.
The court STAYS this case pending resolution of Milwaukee County case
15CF2912. It is the plaintiff’s responsibility to file a motion to lift the stay after
he has completed all of the litigation in state court. Such litigation includes any
post-conviction motions and other appellate relief. Simpson v. Rowan, 73 F.3d
134, 138 (7th Cir. 1995).
The court will send a copy of this order be sent to Maricela Castillo and
Mary Wenten at the Milwaukee County House of Corrections.
The court ORDERS the plaintiff to submit all correspondence and legal
material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
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362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO CHAMBERS. It will
only delay the processing of the case.
Dated in Milwaukee, Wisconsin this 16th day of May, 2016.
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