Cannon v. Newport et al

Filing 4

DECISION and ORDER signed by Judge Pamela Pepper on 1/19/2016 SCREENING and DISMISSING Complaint pursuant to 28 USC §§1915(e)(2)(B) and 1915A(b)(1) For Failure to State a Claim. The plaintiff has incurred a "strike" under 28 USC §1915(g). (cc: all counsel and copy sent to the plaintiff and Stanley Correctional Institution by US Mail on January 19, 2016.)(kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
BILLY CANNON,
Plaintiff,
v.

Case No. 16-cv-10-pp

JASON ALDANA, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING, AND DISMISSING, COMPLAINT (DKT.
NO. 1)
______________________________________________________________________________
The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C.
§1983, alleging that the defendants violated a number of his civil rights in
response to his filing requests for two John Doe investigations. Dkt. No. 1. The
plaintiff paid the full filing fee of $400 on January 4, 2016. Below, the court
screens the 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
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915A(b).

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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 her 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)). 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 follow the
principles set forth in Twombly. First, they 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.
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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
N. 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)).
Allegations in the Plaintiff’s Complaint
The plaintiff alleges the defendants engaged in an “elaborate scheme” to,
among other things, deny him access to the courts and to retaliate against him
for exercising his First Amendment rights. Dkt. No. 1 at 18. Specifically, the
plaintiff claims that in September 2012, pursuant to Wis. Stat. §968.26, he
filed with Chief Judge Jeffrey Kremers of the Milwaukee County Circuit Court1
two John Doe petitions, asking Judge Kremers to investigate (1) Michael Guolee
(Milwaukee County Circuit Court Judge), and (2) Dean Newport (Milwaukee
Police Officer), Michael Kurowski (of the Milwaukee Police Department),
Timothy Gray (Special Agent with the Wisconsin Department of Justice), John
Chisholm (Milwaukee County District Attorney), Grant Hubener (Assistant
At the time of the events alleged in the plaintiff’s complaint, Judge Jeffrey
Kremers was the Chief Judge of the Milwaukee County Circuit Court. That has
changed; as of August 1, 2015, Judge Maxine A. White has succeeded Judge
Kremers as Chief of the Milwaukee County Circuit Court. For the purposes of
this order, the court will refer to Judge Kremers as “Chief Judge,” because that
was his position at the time of the events the plaintiff describes.
1

3

District Attorney), and Jeremiah Van Hecke (Assistant District Attorney). Dkt.
No. 1 at 13. The plaintiff states that Judge Kremers and his clerk are the only
ones that maintain the John Doe files. Id. at 13.
The plaintiff alleges that Judge Kremers notified Chisholm of the petition
against him, which was improper under the statute. Id. The plaintiff also
alleges that Chisholm notified Hubener and Van Hecke, who notified Newport,
Kurowski, and Gray. Id. The plaintiff maintains that Newport, Kurowski, and
Gray then asked Jason Aldana, the Security Director at the Racine Correctional
Institution (“RCI”), “to confiscate all of plaintiff’s legal material[s] for their
criminal investigation.” Id. The plaintiff alleges the defendants sought to
“destroy the evidence and exhibits of the John Doe Petition.” Id. at 13.
The plaintiff alleges that on October 10, 2012, at Aldana’s direction, RCI
staff confiscated all of the plaintiff’s “legal material[s], legal files, photos,
incoming and outgoing mail, and any other paper documents.” Id. at 19.
Newport allegedly took “everything that he thought would be detrimental to the
John Doe Defendants including himself” and returned the remaining materials
to “Aldana with a thank you letter on government letterhead claiming to be an
ATF agent.” Id. at 14. Aldana returned the remaining materials to the plaintiff
on October 15, 2012. Id. at 20. The plaintiff indicates that the materials
Newport took were “the original two John Doe Petitions, the unopened certified
mail to various judges, judicial commission, certified notary documents to the
internal affairs with the MPD regarding the misconduct of said defendants,
letters from Tammy Baldwin, among other legal documents.” Id. at 14-15. The
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plaintiff does not indicate whether Newport ever returned these materials, but
the plaintiff contends that he kept copies of everything that was taken.
The plaintiff maintains that he had not had any contact with Newport for
nearly two years, “so the lie told to the institution about him conducting a
criminal investigation was to manipulate the institution . . . .” Id. at 15. The
plaintiff claims that Newport and others used subterfuge to obtain his legal
materials and transformed Aldana into a “stalking horse.” Id. at 17.
On October 26, 2012, Judge Kremers declined to open a John Doe
investigation against Judge Guolee, and on November 16, 2012, declined to
open an investigation into the others. Id. at 15. The plaintiff argues that these
dismissals were improper. Id. at 15-16.
Analysis of the Plaintiff’s Allegations
As a threshold matter, the court notes that the plaintiff purports to sue
the defendants in both their personal and official capacities. The distinction
between personal capacity and official capacity is significant. “Personalcapacity suits seek to impose liability upon a government official for actions he
takes under color of state law. . . . Official capacity suits, in contrast, generally
represent only another way of pleading an action against an entity of which an
officer is an agent.” Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991)
(quoting Kentucky v. Graham, 473 U.S.159, 166 (1985)). In other words, a
personal-capacity suit is appropriate when an official, acting under the color of
state law, personally deprives a plaintiff of a federal right. Id. On the other
hand, an official-capacity suit is appropriate only when an individual is
5

executing or implementing the official policy or custom of a government entity.
Id. The plaintiff’s allegations do not indicate or imply the existence of an official
policy or custom. Instead, the plaintiff alleges that each defendant acted on his
or her own to deprive the plaintiff of his constitutional rights. Accordingly, the
plaintiff has not stated claims against any of the defendants in their official
capacities.
Next, the court notes that on pages 6-7 of his complaint, the plaintiff has
named as defendants Edward Wall (the Secretary of the Wisconsin Department
of Corrections, Dkt. No. 1 at 12), John Paquin (warden of the Racine
Correctional Institution, Dkt. No. 12), Audrain Brown (whom the plaintiff
identifies as a “Unit Manager at the Racine Correctional Institution,” Dkt. No. 1
at 12), Nancy Padgett (whom the plaintiff identifies as an inmate complaint
examiner at Racine Correctional, Dkt. No. 1 at 12), and Michael Tobin (whom
the plaintiff identifies as a “Fire and Police Commissioner for the City of
Milwaukee, Dkt. No. 1 at 11). Dkt. No. 1 at 6-7.
As explained by the Seventh Circuit Court of Appeals, “[a] plaintiff
bringing a civil rights action must prove that the defendant personally
participated in or caused the unconstitutional actions.” Alejo v. Heller, 328
F.3d 930, 936 (7th Cir. 2003). Merely “ruling on a grievance does not make the
actor personally responsible—it ‘does not cause or contribute to the violation.’”
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). With regard to these
defendants, the plaintiff alleges only that he complained to them—informally,
via written complaint, or via the inmate complaint process—about the
6

misconduct of officers and/or the removal of his legal materials and that he
received either no response or responses he deemed unsatisfactory. He does
not allege that any of these defendants were involved in the alleged misconduct
or the removal of his legal materials. His failure to allege the personal
participation of these defendants in the allegedly unconstitutional actions is
fatal to his claims against them. The court will dismiss defendants Wall,
Pacquin, Brown, Padgett and Tobin.
The plaintiff also makes claims against Milwaukee County Circuit Court
Chief Judge Jeffrey Kremers. His allegations against Judge Kremers relate
directly to Judge Kremers’ job as a judge. He argues that a judge, Judge
Kremers was the recipient of requests for John Doe investigations, and was the
keeper of those requests. He argues that Judge Kremers violated his rights by
notifying the Milwaukee County District Attorney, John Chisolm, of the
plaintiff’s requests to open John Doe investigations, and in so doing, opened
the door for other defendants (particularly the defendants whom he named in
the John Doe petitions, including defendant Chisholm) to retaliate against the
plaintiff.
“A judge has absolute immunity for any judicial actions unless the judge
acted in the absence of all jurisdiction.” Polzin v. Gage, 636 F.3d 834, 838 (7th
Cir. 2011). In this case, Judge Kremers had direct statutory jurisdiction to refer
any allegations of criminal wrong-doing to a district attorney. Wis. Stat.
§968.26(2)(am) states, “If a person who is not a district attorney complains to a
judge that he or she has reason to believe that a crime has been committed
7

within the judge’s jurisdiction, the judge shall refer the complaint to the district
attorney . . . .” Thus, in referring the plaintiff’s complaints to a district attorney,
Judge Kremers was doing exactly what the statute required him to do, and
thus was acting within his jurisdiction.
The plaintiff argues, however, that Judge Kremers should not have
referred his John Doe petitions to District Attorney Chisholm, because District
Attorney Chisholm was one of the individuals whom the plaintiff alleged had
committed crimes, and one of the individuals whom the plaintiff was asking
Judge Kremers to have investigated. It is true that Wis. Stat. §968.26(am)
provides that if the complaint the judge receives “may relate to the conduct of
the district attorney,” the judge should refer the complaint “to another
prosecutor under s. 978.045.” Wis. Stat. §978.045 allows a judge to appoint a
special prosecutor when, among other things, the judge receives a John Doe
complaint that “relates to the conduct of the district attorney to whom the
judge otherwise would refer the complaint.”
The plaintiff’s allegation that Judge Kremers wrongly referred a
complaint against DA Chisholm to DA Chisholm does not have any impact on
whether Judge Kremers had jurisdiction to make the referral. He did have
jurisdiction to make the referral. As a result, Judge Kremers did not act “in the
absence of all jurisdiction,” Polzin, 636 F.3d at 838, and while the plaintiff
alleges that he exercised that jurisdiction in error,2 Judge Kremers has
This court expresses no opinion on whether Judge Kremers actually made any
error. While the plaintiff submitted seventy-four pages of attachments with his
complaint, he did not submit copies of the alleged John Doe petitions. While he
2

8

absolute immunity for the actions about which the plaintiff complains. The
court will dismiss Judge Kremers as a defendant.
The plaintiff alleges that defendant Daniel Layber was “a Special Agent
Supervisor with the Department of Justice.” Dkt. No. 1 at 11. The plaintiff
alleges that, after he filed a complaint with the Wisconsin Department of
Justice about Newport, Gray, and Kurowski, he “notified the clerk/secretary for
an update, because the justice department had forwarded the complaint back
to Gray’s supervisor Daniel Layber (Protocol).” Id. at 16. He indicates that this
clerk or secretary instructed him that protocol required that the plaintiff
contact Layber, Gray’s supervisor. Dkt. No. 1 at 16. The plaintiff states that
when he spoke with Layber, Layber said, “if one of my agents have [sic] done
something wrong th[e]n I would like to know about it.” Id. at 17. The plaintiff
alleges that Layber did nothing in response to the plaintiff’s complaint, and
that he never heard from Layber again. Id.
The allegations stated against Layber are insufficient to support the
plaintiff’s claim that Layber was personally involved in the alleged
constitutional violations. The plaintiff appears to argue that Layber, as Gray’s
supervisor, violated his civil rights by not taking some kind of supervisory
action against Gray. Section 1983, however, does not provide a cause of action
attached his cover letter to Judge Kremers, dated October 3, 2012. Dkt. No. 1-1
at 1, that letter does not identify the subjects whom the plaintiff wanted
investigated. It indicates only that the plaintiff was seeking an investigation “for
the named officials in the motion.” Id. The only indication this court has that
the plaintiff asked Judge Kremers to investigate John Chisholm is the plaintiff’s
statement in the complaint that he did so, and the court need not, and cannot,
make any finding, based solely on that assertion, that Judge Kremers failed to
follow the procedures outlined in the Wisconsin statutes.
9

against people based on their supervisory roles. T.E. v. Grindle, 599 F.3d 583,
588 (7th Cir. 2010). The court will dismiss Daniel Layber as a defendant.
The plaintiff alleges that Jason Aldana was the security director at the
Racine Correctional Institution. Dkt. No. 1 at 12. He claims that Aldana was a
“stalking horse” who was used by Newport to seize his legal materials so that
Newport, Kurowski, Gray, Chisholm, Hubener and Van Hecke could gain
access to the evidence supporting the plaintiff’s John Doe petitions. The
plaintiff alleges that Newport misrepresented to Aldana that Newport was an
ATF agent (when, in fact, the plaintiff claims, Newport was a Milwaukee Police
Officer), and told Aldana that the plaintiff’s legal materials were needed for a
criminal investigation.
The plaintiff does not allege that his John Doe petitions involved Aldana,
that Aldana viewed any of the seized materials, or that Aldana had any
motivation to seize the materials other than to assist Newport in what Aldana
apparently believed was Newport’s criminal investigation. The plaintiff
essentially alleges that Aldana was duped into doing what the plaintiff claims
was Newport’s dirty work.3 At the very most, this claim alleges that Aldana may
have been negligent for failing to verify Newport’s identity and/or the existence
of a criminal investigation. Negligence is not sufficient to state a claim under

The court believes that, in using the term “stalking horse” to describe Aldana,
the plaintiff perhaps means to describe a “cat’s paw.” The idiom “cat’s paw” is
often used to describe a person who is used by someone else as a tool or a
dupe. In contrast, “stalking horse” is an idiom used to describe someone who is
willing to act as a test subject of sorts, to test a concept or mount a challenge
on behalf of someone else.
3

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§1983, see Daniels v. Williams, 474 U.S. 327, 333-34 (1986), and thus, the
court dismisses Jason Aldana as a defendant.
The court now turns to each of the plaintiff’s claims against the
remaining defendants: Newport, Kurowski, Gray, Chisholm, Hubener, and Van
Hecke (collectively referred to as the “Petition Defendants”).
In his first cause of action, the plaintiff claims that the Petition
Defendants violated his First Amendment right to freedom of speech and his
Fourteenth Amendment right to access to the courts. With regard to his access
to courts claim, the plaintiff argues that the Petition Defendants violated his
rights by seizing his legal materials, including exhibits to and evidence in
support of the John Doe petitions.
“The Fourteenth Amendment guarantees meaningful access to courts . . .
.” Guajardo-Palma v. Martinson, 622 F. 3d 801, 802 (7th Cir. 2010). It does so,
in part, by prohibiting the active interference by prison officials with a
prisoner’s efforts to enforce his legal rights. Id. at 803. The Seventh Circuit has
noted that some federal courts of appeal have found that prisoners may have
an access-to-courts claim when prison officials read their confidential
communications with their attorneys. Id. at 802. Even if the Petition
Defendants did everything the plaintiff claims that they did, however, the
plaintiff has not stated an access-to-courts claim against them.
First, none of the Petition Defendants were prison officials. The plaintiff
alleges that Newport and Kurowski were Milwaukee police officers, that
Chisolm was the Milwaukee County District Attorney, that Huebner and Van
11

Hecke were assistant district attorneys, and that Gray was a special agent with
the Department of Justice. As indicated above, case law defining access-tojustice claims indicates that the Fourteenth Amendment focuses, for the most
part, on prohibiting prison officials from interfering with an inmate’s ability to
access the courts.
Second, even if an access-to-courts claim can lie against government
actors who are not prison officials, a request for a John Doe investigation is not
an effort by a plaintiff to enforce his legal rights. Pursuant to Wis. Stat.
§968.26, an individual who is not a district attorney may make a complaint to
the district attorney, alleging that the person believes that a crime has been
committed, and asking the district attorney to conduct a John Doe
investigation. The statute provides that only the district attorney has the
authority to issue charges, and only the district attorney or a judge may
convene an investigation into allegations of criminal activity. See Wis. Stat.
§§968.26(1m), (2)(am), and 2(b). The statute does not give an civilian (a person
who isn’t a district attorney or a judge) any rights at all. The plaintiff does not
have a right to have the district attorney conduct an investigation or issue
charges. Nor does he have a right to have the court conduct an investigation.
Because the plaintiff had no right to access to courts under the John Doe
statute, and because none of the Petition Defendants were prison officials, the
court will not allow him to proceed on his Fourteenth Amendment access-tocourts claim.

12

With regard to his First amendment claim, the plaintiff argues that the
Petition Defendants retaliated against him. He argues that defendants
Chisholm, Huebner and Van Hecke retaliated against him by informing
Newport, Gray and Kurowski of the plaintiff’s allegations, and that Newport,
Gray and Kurowski retaliated by contacting Aldana and having him confiscate
the plaintiff’s files. He argues that, because the Petition Defendants were the
people whom he alleged in his John Doe complaint had committed criminal
acts, they engineered the seizure of his materials, not to actually conduct a
John Doe investigation (as he’d asked), but to make sure no investigation ever
took place.
To state a First Amendment claim for retaliation, a plaintiff
must allege that “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter
First Amendment activity in the future; and (3) the First
Amendment activity was at least a motivating factor in the
defendants’ decision to take the retaliatory action.”
Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009)).
The plaintiff has alleged that he engaged in activity protected by the First
Amendment; the guarantee of freedom of speech protects the plaintiff’s right to
allege that he believed certain individuals had engaged in criminal activity. He
also alleges that he suffered a deprivation—Aldana (whom the court has
dismissed as a defendant) took his papers, books, magazines, mail and other
items.
The court cannot find, however, that the plaintiff has alleged that the
Petition Defendants were motivated by a desire to curb his free speech. The
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plaintiff repeatedly alleges throughout the complaint that the reason the
defendants had his mail seized was because they wanted to destroy any
evidence of their alleged criminal wrong-doing. The plaintiff already had asked
Judge Kremers to start a John Doe investigation by the time the defendants
allegedly engineered the search, so the Petition Defendants could not have been
trying to interfere with his right to allege that they engaged in criminal
conduct. Rather, if the court accepts the plaintiff’s allegations as true (as it
does, at this stage), the Petition Defendants seized the documents to protect
themselves, to keep their alleged criminal conduct from coming to light. While
the plaintiff’s allegations, if supported, may provide the basis for claims of
some kind of misconduct, they do not support a claim that the Petition
Defendants violated his First Amendment right to free speech through
retaliation.
The plaintiff’s First Amendment claim also may encompass his claim that
the Petition Defendants took action which resulted in his mail (incoming,
outgoing and certified) being seized. The plaintiff alleges that “Newport was
reading and copying legal material that was sent to plaintiff from federal and
state judges.” Dkt. No. 1 at 22. He also alleges that the Petition Defendants
“joined together to confiscate all of the plaintiff[’s] legal mail, to read the
contents . . . .” Dkt. No. 1 at 26.
The Supreme Court has held that a “correspondent” with an inmate may
have a First Amendment right against a prison censoring the inmate’s mail,
when that censoring is “not necessary to protect legitimate government
14

interests.” Wolff v. McDonnell, 418 U.S. 539, 575 (1974). The Court did not go
so far in Wolff, however, as to recognize a prisoner’s First Amendment right
against censorship. Id. (internal citations omitted). The Seventh Circuit has
opined that, “since the purpose of confidential communication with one’s
lawyer is to win a case rather than to enrich the marketplace of ideas,” a
prisoner’s allegation that prison officials opened and read his mail relates more
to a Fourteenth Amendment access to courts or due process claim than it does
to a First Amendment claim. Guajardo-Palma v. Martinson, 622 F.3d 801, 802
(7th Cir. 2010).
Because the plaintiff does not have any clear First Amendment right to
be free from having his mail read, the court will not allow the plaintiff to
proceed on that cause of action.
In his second cause of action, the plaintiff alleges that Aldana, at the
direction of Newport, illegally searched the plaintiff’s cell and seized his legal
materials in violation of the Fourth Amendment, and that they engineered this
search by means of subterfuge. The Supreme Court has held that “the Fourth
Amendment proscription against unreasonable searches does not apply within
the confines of the prison cell. The recognition of privacy rights for prisoners in
their individual cells simply cannot be reconciled with the concept of
incarceration and the needs and objectives of penal institutions.” Hudson v.
Palmer, 468 U.S. 517, 526 (1984). For this reason, the court will not allow the
plaintiff to proceed on his Fourth Amendment claim.

15

In his third cause of action, the plaintiff claims that the Petition
Defendants conspired to interfere with his Sixth Amendment right to counsel.
It appears that the plaintiff bases this claim on his allegation that the Petition
Defendants took his legal mail, and thus interfered with his ability to
communicate with his lawyer. He also alleged that for prison officials, police,
prosecutors or judges to read mail between a prisoner and his criminal counsel
violates the Sixth Amendment.
The plaintiff attached to his complaint the documents that Aldana seized,
then returned to him. Dkt. No. 1-1. These documents, however, do not include
any communications between the plaintiff and his criminal counsel written
before Aldana seized the plaintiff’s papers. There is a letter among the
documents from the plaintiff’s attorney to the plaintiff, but it is dated after the
Petition Defendants allegedly removed his legal materials. See Dkt. No. 1 at 20;
Dkt. No. 1-1 at 33.
Even if the Petition Defendants had taken letters between the plaintiff
and his criminal lawyer (letters which related to the plaintiff’s defense in a
criminal case), the plaintiff has made no allegations that his lawyer was not
able to provide him with effective assistance of counsel, as the Sixth
Amendment requires. The plaintiff alleges that the Petition Defendants
shouldn’t have taken the letters, and that officials such as the Petition
Defendants should not read privileged communications between clients and
lawyers. But nowhere does he state that his lawyer was not able to adequately
represent him in his criminal case because of the Petition Defendants’ alleged
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actions. “[T]he Supreme Court made clear in Weatherford v. Bursey, 429 U.S.
545, 554-59 . . . (1977), that the interception of a criminal defendant’s
confidential communications with his lawyer is subject to harmless-error
analysis; and this must be true, and is, in prisoners’ civil litigation as well.”
Guajardo-Palma, 622 F. 3d at 805-06. Without a factually-supported allegation
that his lawyer was not able to represent him as a result of the Petition
Defendants’ actions, the plaintiff’s Sixth Amendment claim constitutes
harmless error.
If the plaintiff meant to argue that he had a Sixth Amendment right to
have a lawyer assist him in trying to obtain a John Doe investigation, he is
incorrect. The Sixth Amendment guarantees a person’s right to counsel only in
criminal proceedings against that person. See Maine v. Moulton, 474 U.S. 159,
168-70 (1985). The plaintiff was not constitutionally entitled to have counsel
assist him with requesting a John Doe investigation. The court will not allow
the plaintiff to proceed on his Sixth Amendment claim.
In the fourth cause of action, the plaintiff again alleges that his Fourth
Amendment rights were violated when his cell was searched; the court already
has ruled that he may not proceed on that claim. He also alleges that the
Petition Defendants violated the Eighth Amendment’s prohibition against cruel
and unusual punishment when RCI staff took his legal materials. The plaintiff
does not state any facts to support this claim. Rather, he argues that the
Supreme Court has held that prisoners may bring Eighth Amendment claims if
their cells are searched in a “particularly egregious manner.” Dkt. No. 1 at 27.
17

(The plaintiff does not provide the name of the Supreme Court case upon which
he relies, or the citation.)
The plaintiff fails to state a claim—he does not allege that anyone used
force, physical or psychological, against him during the search. To the
contrary, he asserts that, at his request, he was allowed to speak with multiple
officers and supervisors prior to the search occurring; he was permitted the
opportunity to inventory his materials before the officers removed them from
his cell; and he was given the opportunity to inspect the returned materials in
the presence of a supervisor. None of the plaintiff’s allegations regarding the
RCI staff’s conduct indicate that the plaintiff’s Eighth Amendment rights were
violated, and the court will not allow him to proceed on his Eighth Amendment
claim.
In his fifth cause of action, the plaintiff alleges that the Petition
Defendants violated his rights under the Fourteenth and Fifth Amendments,
his due process rights, and his right to equal protection. He states no facts at
all whatsoever in support of this claim; the text of his claim is just a recitation
of all the rights he claims the Petition Defendants violated. The court already
has ruled on his Fourteenth Amendment due process claim. The court has no
idea what portion of the Fifth Amendment the plaintiff believes the Petition
Defendants violated; the Fifth Amendment provides several protections,
including the right to be charged by a grand jury, the protection against double
jeopardy, the right against compelled incrimination, and others. Without any
explanation of how the plaintiff believes the Petition Defendants violated his
18

Fifth Amendment rights, the court will not allow him to proceed on a Fifth
Amendment claim.
With regard to his statement that the defendants violated his right to
equal protection, the court notes that in order to state an equal protection
claim under the Fourteenth Amendment, a plaintiff must allege that a state
actor intentionally treated him differently than others who were similarly
situated. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). Nowhere in the
complaint does the plaintiff allege facts indicating that he was treated
differently than any similarly-situated person. In addition, the plaintiff
repeatedly states that the Petition Defendants’ motivation for taking his legal
materials was their desire to obtain and destroy the evidence supporting the
plaintiff’s John Doe petitions, not an effort to discriminate against him for some
reason. According to the plaintiff’s own allegations, the defendants’ actions
were not motivated by any characteristic of his that might give rise to an equal
protection claim.
The plaintiff’s sixth cause of action alleges conspiracy among Tobin, Wall,
Padgett, Brown, Paquin and Layber; the court already has dismissed these
individuals as defendants.
While the plaintiff does not make these specific allegations in any of the
above-described six causes of action, the plaintiff alleges at various points in
his complaint that the Petition Defendants deprived him of his property without
due process. The Supreme Court has held that the Due Process Clause of the
Fourteenth Amendment is not implicated by an intentional deprivation where
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the state provides a meaningful post-deprivation remedy for the loss. See
Hossman v. Spradlin, 812 F.2d 1019, 1022-23 (7th Cir. 1987). Wisconsin law
provides tort remedies to individuals whose property has been converted or
damaged by another. See Wis. Stat. §§893.35 and 893.51. Because state law
provides an adequate post-deprivation remedy for redressing the missing
property, the plaintiff’s due process rights remain intact. Parratt v. Taylor, 451
U.S. 527, 540 (1981), overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986); see also Hamlin v. Vaudenberg, 95 F.3d 580,
585 (7th Cir. 1996) (holding that Wisconsin’s post-deprivation procedures are
adequate, albeit in a different context). The court will not allow him to proceed
on this due process claim.
Finally, in each cause of action, the plaintiff alleges that the defendants
named in that cause of action conspired to violate his constitutional rights.
Conspiracy, however, is not an independent basis of liability in §1983 actions;
there must be an underlying constitutional violation. Cefalu v. Vill. of Elk
Grove, 211 F.3d 416, 423 (7th Cir. 2000). The court has found that the plaintiff
fails to allege any violations of his constitutional rights. Accordingly, the court
will not allow him to proceed on his conspiracy claim.
Conclusion
The court ORDERS that this case 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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The court further ORDERS 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).
The court also ORDERS that the Clerk of Court document that this
inmate has incurred a "strike" under 28 U.S.C. §1915(g).
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 twenty-eight (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).
A party is expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.
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The court will mail a copy of this order to the institution where the
plaintiff is incarcerated.
Dated in Milwaukee, Wisconsin this 19th day of January, 2016.

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