O'Boyle v. Carrasco et al
ORDER signed by Judge Pamela Pepper on 11/27/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED. 8 Plaintiff's MOTION to screen complaint TERMINATED. 9 Plaintiff's letter request to stay case GRANTED. Clerk of court to ADMINISTRATIVELY CLOSE case; once plaintiff's state court post-conviction motion is decided, he should file a motion to reopen this case. (cc: all counsel, via mail to Ryan O'Boyle at Kettle Moraine Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RYAN P. O’BOYLE,
Case No. 16-cv-959-pp
KRISTOPHER M. MADUSCHA,
MICHAEL A. ANTONIAK,
JAMES C. GRIFFIN,
DENNIS R. CIMPL,
DERRICK L. HARRIS,
EDWIN L. JOHNSON, and
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED WITHOUT PAYMENT OF THE FILING FEE (DKT. NO. 2),
TERMINATING PLAINTIFF’S MOTION TO SCREEN COMPLAINT (DKT. NO.
8), GRANTING PLAINTIFF’S REQUEST TO STAY CASE (DKT. NO. 9) AND
ADMINISTRATIVELY CLOSING CASE
The plaintiff, a state prisoner who is representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil
rights during his arrest and criminal prosecution in Milwaukee County. Dkt.
No. 1. He also has filed a motion for leave to proceed without prepayment of the
filing fee, dkt. no. 2, although he has paid $350.00 toward that filing fee. The
plaintiff filed a motion asking the court to screen the complaint, dkt. no. 8, but
then asked the court to wait to screen the complaint until he learns the
outcome of a post-conviction motion he filed in state court last month
regarding his criminal case, dkt. no. 9. This order resolves all of those motions,
and dismisses the case.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
On July 26, 2016, the court ordered the plaintiff to pay an initial partial
filing fee of $24.37. Dkt. No. 5. Lee than a month later, the court received a
$350.00 payment—the full amount of the filing fee. The fact that the plaintiff
has paid the filing fee, however, does not moot the plaintiff’s motion. Prisoners
who do not receive leave to proceed without prepaying the filing fee also must
pay a $50 administrative fee, and must serve their complaints themselves. The
plaintiff has disclosed that he has an account containing $950; if the court
does not grant his request to proceed without prepaying the filing fee, he would
have to use some of that small amount of money to pay the $50 administrative
fee and to hire someone to serve his complaint. The court does not expect the
plaintiff to spend all of his money to file a lawsuit, especially when the court
finds that he has met the qualifications for proceeding without prepaying the
filing fee under 28 U.S.C. §1915. The court will grant the plaintiff’s motion, and
note that he has paid the entire applicable filing fee.
Screening the Plaintiff’s Complaint
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 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).
The plaintiff filed his complaint on July 20, 2016; the court should have
screened his complaint within a reasonable time after that. The court neglected
to timely and promptly screen the complaint, so on August 4, 2017, the
plaintiff filed a motion asking the court to screen the complaint. Dkt. No. 8.
Almost three months later, though, the plaintiff filed a letter asking the court to
wait to screen his complaint until he receives a determination regarding a postconviction motion he filed in state court, collaterally attacking his criminal
conviction. Dkt. No. 9. According to the plaintiff, he filed that motion around
October 13, 2017. Id.
This request effectively withdrew the plaintiff’s motion asking the court to
screen the complaint, so the court will terminate that motion. The court will
grant the plaintiff’s request to stay this case pending the state court’s decision
on his post-conviction motion. The court will administratively close this case to
give the plaintiff time to finish up in state court, and will give the plaintiff
directions directions for asking to lift the stay once the state proceedings are
This outcome is consistent with Younger v. Harris, 401 U.S. 37 (1971),
which “holds that federal courts must abstain from taking jurisdiction over
federal constitutional claims that may interfere with ongoing state
proceedings.” Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013) (citing SKS
& Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010)). Deciding the
plaintiff’s claims in federal court could undermine his state court proceeding,
and the Seventh Circuit recommends that the court stay the federal case,
rather than dismissing the case altogether, because monetary relief is not
available in defense of criminal charges and federal civil claims could become
time-barred while the criminal case is pending. Gakuba, 711 F.3d at 753.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court TERMINATES the plaintiff’s motion to screen complaint. Dkt.
The court GRANTS the plaintiff’s request to stay this case, dkt. no. 9,
and ADMINISTRATIVELY CLOSES the case. Within thirty (30) days of the date
the highest state court issues a final decision on his post-conviction motion,
the plaintiff should file a motion in this court—bearing the case number of this
case—asking the court to reopen his case and screen his complaint.
Dated in Milwaukee, Wisconsin this 27th day of November, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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