Kirk v. Rose et al

Filing 32

ORDER signed by Judge J.P. Stadtmueller on 9/12/2017: OVERRULING 31 Plaintiff's Objections to Magistrate Judge Nancy Joseph's Report and Recommendations; ADOPTING in full 30 Magistrate Judge Nancy Joseph's Report and Recommendation s; DISMISSING CASE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; DIRECTING Clerk of Court to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g); ORDERING agenc y having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order; and CERTIFYING that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless Plaintiff offers bona fide arguments supporting his appeal. See Order. (cc: all counsel; via mail to James L. Kirk and Warden at Jackson Correctional Institution, and to AAG Corey F. Finkelmeyer)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES L. KIRK,

v.

Plaintiff,

TERRY ROSE, DIANE CASPARI,
AILEEN HENRY, HEATHER
JOHNSON, MICHAEL BARTH,
DOUGLAS BIHLER, PAUL
BONNESON, ART HERBST, PETER
PERALES, JANE DOE 1, NICOLE
HEROLT, and BRAD HETLET,

Case No. 16-CV-799-JPS

ORDER

Defendants.
Plaintiff, who is incarcerated at Jackson Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). He consented to the jurisdiction of Magistrate
Judge Nancy Joseph, who screened his complaint pursuant to 28 U.S.C. §
1915A and dismissed it. (Docket #11). Additionally, she later denied
Plaintiff’s motion to alter the judgment under Federal Rule of Civil
Procedure 59(e). (Docket #19).
Plaintiff appealed. (Docket #20). On July 31, 2017, the Court of
Appeals vacated the dismissal of his action in light of Coleman v. Labor and
Industry Review Commission of the State of Wisconsin, 860 F.3d 461 (7th Cir.
2017), which held that magistrate judges may not dispose of claims in cases
like this one, where only one side has consented to the magistrate’s
jurisdiction. (Docket #29).

On August 14, 2017, Judge Joseph reissued her earlier screening
order, with the addition of her opinion addressing Plaintiff’s motion to alter
the first judgment, as a report and recommendation to this Court. (Docket
#30). Judge Joseph recommends that Plaintiff’s complaint be dismissed for
failure to state a claim upon which relief may be granted. Id. at 4–7.
On August 31, 2017, Plaintiff filed his objections to the report and
recommendation. (Docket #31). This Court reviews a party’s specific
written objections to a report and recommendation de novo. Fed. R. Civ. P.
72(b)(3). Plaintiff’s objections, while numerous, are not persuasive. They
consist of his conclusory accusations that Judge Joseph got essentially
everything wrong. What is lacking is citation to pertinent, controlling
authority showing that an error occurred.
Plaintiff’s primary objection is that Judge Joseph set too high a bar
for his civil conspiracy claim. In that claim, he argues that numerous state
and non-state actors, including Plaintiff’s criminal defense attorneys hired
by the state public defender to represent him, private investigators, records
clerks, the district attorney, and others acted in concert to deny him the
ability to challenge certain matters in a state criminal prosecution. See
(Docket #31-1 at 1–2). But, as Judge Joseph pointed out, Plaintiff’s factual
allegations do not remotely establish that these individuals knew each other
or worked together in any way to deprive Plaintiff of his rights. (Docket #30
at 6–7). Instead, he offers only vague assertions of a conspiracy. Id. This does
not meet even the liberal standard applied at screening. See Beaman v.
Freesmeyer, 776 F.3d 500, 511 (7th Cir. 2015) (although a plaintiff can use
circumstantial evidence to establish a conspiracy, “such evidence cannot be
speculative”).

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In particular, in order to support the parties’ meeting of the minds
as to the conspiracy, Plaintiff claims that Defendants had an “express or
implied agreement to deny plaintiff effective, meaningful, and adequate
access to the State trial court.” (Docket #1 at 30). This is a legal conclusion
and provides no factual account of how the supposed co-conspirators
might have agreed to act in concert to violate Plaintiff’s constitutional
rights. Evers v. Reak, 21 F. App’x 447, 450 (7th Cir. 2001). Baldly claiming, as
Plaintiff does, that all parties knew of the misdeeds of the others, (Docket
#31-1 at 6–7), does not raise his conspiracy claim above the speculative level,
Walton v. Walker, 364 F. App’x 256, 258 (7th Cir. 2010); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Moreover, although he emphasizes throughout each
individual’s acts of alleged wrongdoing, as Judge Joseph observed, those
acts, standing alone, do not suggest a meeting of the minds as to the object
of the conspiracy, which is the crux of such a claim. See (Docket #30 at 7);
Adickes v. Kress & Co., 398 U.S. 144, 158–59 (1970).
Put simply, while Plaintiff is correct that the federal pleading
requirements are low, see (Docket #31-1 at 14–15), his complaint
nevertheless falls short. Consequently, the Court, having made an
independent review of the applicable law and the record in this case, finds
that Plaintiff’s objection as to this portion of Judge Joseph’s report and
recommendation must be overruled.
The failure of the conspiracy claim becomes a cascading problem for
Plaintiff’s other allegations. First, without a conspiracy between his private
criminal defense attorneys, their investigators, and any state actors, any
claims against those private individuals must be dismissed, as Judge Joseph
found. (Docket #30 at 4); Polk County v. Dodson, 454 U.S. 312, 318 (1981).
Second, Plaintiff has not alleged that any of the state actors’ conduct
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actually interfered with his pursuit of a nonfrivolous legal claim; he was
represented in his criminal case and was not barred from filing any other
action. See Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009); (Docket #30 at
5–6). Third, while Plaintiff says that his claim arising from his son’s inability
to obtain his “rap sheet” from Kenosha County records clerks should be
permitted to proceed, (Docket #31-1 at 2), he does explain why Judge
Joseph’s view of the claim—namely, that it did not implicate any of
Plaintiff’s federal constitutional rights—is wrong, (Docket #30 at 4). Simply
saying that the magistrate erred, without meaningful elaboration, is not an
objection this Court will take seriously.
Finally, as all claims implicating the jurisdiction of this Court have
been dismissed, the Court will also decline to exercise supplemental
jurisdiction over Plaintiff’s state law intentional infliction of emotional
distress claims. See 28 U.S.C. § 1367(c)(3) (stating that district courts may
decline to exercise supplemental jurisdiction over state law claims if the
district court “has dismissed all claims over which it has original
jurisdiction”). Thus, the Court adopts Judge Joseph’s report and
recommendation in full, and as a result, Plaintiff’s complaint will be
dismissed.1

Judge Joseph noticed that Plaintiff alleged misconduct in relation to an
open-records request under Wisconsin law. (Docket #30 at 5). In his objections,
Plaintiff maintains that he is not trying to state a claim under the open-records law
but is instead trying to show how individuals acted as part of the conspiracy.
(Docket #31-1 at 3). The Court takes Plaintiff at his word and declines to address
any potential open-records claim further.
1

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Accordingly,
IT IS ORDERED that Plaintiff’s objections to Magistrate Judge
Nancy Joseph’s Report and Recommendation (Docket #31) be and the same
are hereby OVERRULED;
IT IS FURTHER ORDERED that Magistrate Judge Nancy Joseph’s
Report and Recommendation (Docket #30) be and the same is hereby
ADOPTED in full;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1)
for failure to state a claim;
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 agency having custody of
Plaintiff shall collect from his institution trust account the 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 Plaintiff’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. If Plaintiff is transferred to
another institution, county, state, or federal, the transferring institution
shall forward a copy of this Order along with Plaintiff’s remaining balance
to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined;

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IT IS FURTHER ORDERED that a copy of this order be sent to
Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department
of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857; and
THE COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
unless Plaintiff offers bona fide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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