Skinner v. Lipscomb

Filing 9

ORDER signed by Judge Lynn Adelman on 5/9/16 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that this action is DISMISSED for failure to state a claim on which relief may be granted. Further ordering the Clerk of Court to document that this inmate has brought an action that was dismissed for failure to state a claim on which relief may be granted 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 Clerk of Court to enter judgment accordingly. Further ordering the Milwaukee County Sheriff or his designee to collect from plaintiffs prisoner trust account the $321.70 balance of the filing fee as set forth herein. (cc: via USPS to plaintiff, Milwaukee County Sheriff, AAG Corey Finkelmeyer, Mary Wenten and Susan Harrington, HOC) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TYRONE CARLOS SKINNER,
Plaintiff,
v.

Case No. 16-CV-329

MARK G. LIPSCOMB, JR.,
Defendant.

ORDER

Plaintiff, who is representing himself, filed a complaint alleging that his attorney
violated his rights in the course of his criminal case. This matter is before me on
plaintiff’s motion to proceed without prepaying the filing fee (Docket #2) and for
screening of his complaint (Docket #1).
Plaintiff’s Motion to Proceed without Prepaying the Filing Fee
The Prison Litigation Reform Act gives courts discretion to allow prisoners to
proceed with their lawsuits without prepaying 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 March 22, 2016, I ordered plaintiff to pay an
initial partial filing fee of $28.30. Plaintiff paid the initial partial filing fee on May 2, 2016. I
will grant plaintiff’s motion to proceed without prepaying the full filing fee; he must pay
the remainder of the filing fee as set forth at the end of this order.

Screening of Plaintiff’s Complaint
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).

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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 wellpleaded factual allegations, courts 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). 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)).
Allegations in the Complaint
According to plaintiff’s complaint, defendant is the lawyer who represented him
against unspecified criminal charges. Defendant allegedly belittled, coerced, and
disparaged plaintiff. He gave the plaintiff bad advice, ignored his wishes, and failed to
submit various motions/filings. Plaintiff seeks monetary damages.
As previously noted, to state a claim under 42 U.S.C §1983, a plaintiff must
allege the deprivation of a right secured by the Constitution or the laws of United States.
Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 822 (7th Cir. 2009). In
addition, the alleged deprivation must have been committed by a person acting under
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the color of state law. Id. Criminal defense attorneys cannot be sued under §1983
because they do not act under the color of state law. Polk County v. Dodson, 454 U.S.
312, 318, 325 (1981) (“[A] public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”); see also Swift v. Swift, 556 Fed.Appx. 509, 510-11 (7th Cir. 2014). Even
attorneys who are appointed are not acting under the color of state law. Polk, 454 U.S.
at 318.
Plaintiff might be able to bring a malpractice claim against his attorney in state
court. Or, if he has been convicted of criminal charges, he might be able to raise
ineffective assistance of counsel as an issue on direct appeal of his conviction or in a
federal habeas petition under 28 U.S.C. § 2254. However, the plaintiff does not state a
claim under § 1983.
NOW, THEREFORE, IT IS ORDERED that plaintiff’s motion to proceed without
prepaying the filing fee (Docket #2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim on which relief may be
granted.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate
has brought an action that was dismissed for failure to state a claim on which relief may
be granted 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).
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
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IT IS ALSO ORDERED that the Milwaukee County Sheriff or his designee shall
collect from plaintiff’s prisoner trust account the $321.70 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). Payments shall be clearly identified by
case name and number.
IT IS FURTHER ORDERED that copies of this order be sent to the Milwaukee
County Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin
Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857. A copy should
also be sent to Mary Wenten and Susan Harrington at the Milwaukee County House of
Corrections.
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
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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.
Dated at Milwaukee, Wisconsin, this 9th day of May, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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