Kind v. Department of Corrections

Filing 14

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 2/2/2018. 13 Plaintiff's second request to proceed without prepaying filing fee DENIED as moot. Case DISMISSED under 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. Clerk of Court to document that this inmate has incurred a strike under 28 U.S.C. §1915(g). (cc: all counsel, via mail to Harold Kind)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
HAROLD C. KIND, JR.,
Plaintiff,
v.
Case No. 16-cv-1650-pp
JUDY SMITH,
COMMISSIONER DRANKIEWICZ,
SOCIAL WORKER MESSING,
RECORDS DEPARTMENT TOMLIN, and,
RECORDS DEPARTMENT JOHNSON,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING PLAINTIFF’S AMENDED COMPLAINT
(DKT. NO. 12), DENYING SECOND REQUEST TO PROCEED WITHOUT
PAYING FILING FEE (DKT. NO. 13) AND DISMISSING CASE
______________________________________________________________________________
This order screens the plaintiff’s amended complaint, dkt. no. 12, denies
his second motion to proceed without paying the filing fee, dkt. no. 13, and
dismisses the case.
I.

SCREENING THE AMENDED COMPLAINT
The Prison Litigation Reform Act (“PLRA”) requires courts to screen any

complaint brought by an inmate1 seeking relief against a governmental entity
or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court
may dismiss a case, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek

On the date he filed his complaint, the plaintiff was in custody at the Oshkosh
Correctional Institution. Dkt. No. 1. He has been released, but because he was
in custody at the time he filed his complaint, the PLRA applies.
1

1

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, 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). 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 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. 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 in Twombly to determine
whether a complaint states a claim. Id. 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 well-pleaded factual
allegations “plausibly give rise to an entitlement to relief.” Id. The court gives
pro se allegations, “however inartfully pleaded,” a liberal construction. See

2

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
a. Factual Allegations
The plaintiff does not describe the nature of the state court charges that
led to his incarceration. A review of the Wisconsin Circuit Court Access
Program shows one felony conviction for Harold C. Kind, Jr.— State v. Harold
C. Kind, Jr., Case No. 2004CF000361 (Fond du Lac County Circuit Court)
(accessible at http://wcca.wicourts.gov). The docket for that case shows that in
September 2004, the plaintiff was charged in Fond du Lac County Circuit
Court with sexual assault of a child. There is no indication in the docket, or in
the amended complaint, of when the plaintiff committed the crime for which he
was convicted. He was sentenced on April 6, 2005. Id. at Dkt. No. 65. The
docket does not indicate the length of the sentence the court imposed, and the
complaint does not provide that information.
The caption of the complaint names five defendants: warden Judy Smith,
parole commissioner Drankiewicz, social worker Messing, and “record
department Tomlin & Johnson.” Dkt. No. 1 at 1. Judy Smith is the warden of
the Oshkosh Correctional Institution; the court does not know whether
Messing, Tomlin and Johnson worked at Oshkosh Correctional, or at the
Department of Corrections, or somewhere else.
The plaintiff begins by alleging that the defendants held him two and a
half years past his “M.R. date.” Dkt. No. 12 at 2. He goes on to assert that
defendant Tomlin (to whom he refers in the caption as “Record Department
Tomlin,” dkt. no. 12 at 1, and whom he calls “Records Tomlin” in the body of
3

the complaint, dkt. no. 12 at 2) petitioned the “court system” “to place a ‘PMR’”
on the plaintiff. Dkt. No. 12 at 2. (The docket for Case No. 2004CF000361
shows that on August 24, 2017, there was a “hearing re mandatory release
calculation.” http://wcca.wicourts.gov.) He alleges that his case “came to a[n]
end on September 1st 2017,” and that “[t]he Department of Corrections were
[sic] ordered to release [him] in 72 hours.” Dkt. No. 12 at 2. (The clerk’s office
for this court learned from the Wisconsin probation department that as of
September 19, 2017, the plaintiff had a new address on Thomas Street in Fond
du Lac, Wisconsin.)
The plaintiff asserts that the defendants “tortured” him, by forcing him to
participate in programs “not ordered by the sentencing Judge back in the end
of the 90’s and beginning of 2000.” Id. One of the programs—“SOTP,” a sex
offender treatment program—led to four people looking at him “differently,”
calling him “serious names” and “even threaten[ing] [him].” Id. at 3. The
plaintiff alleges that “Records” and defendant Messing (a social worker) “lied” to
the plaintiff “over and over again,” stating that if he participated in the
program, he would be released. Id. He asserts that these lies caused him
hardship, pain, suffering and emotional distress. Id.
The plaintiff also alleges that “Records” and his social worker “forced” the
parole commissioner (presumably defendant Drankeiwicz) to deny the plaintiff
parole, “because the Records department took it upon themselves to force Fond
du Lac County to place a PMR on me which was a violation of my Constitution
rights.” Id. The plaintiff alleges that he lost two and a half years of his life that
he never can get back. Id. He seeks monetary damages for the defendants
4

having tortured him by holding him two and a half years after his “original
M.R. date.” Id. at 4. He also asks the court to fire each defendant. Id.
b. Legal Analysis
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. C’nty. 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).
1.

Holding Plaintiff Beyond His Mandatory Release Date

Incarcerating a prisoner beyond the termination of his sentence without
penological justification can violate the Eighth Amendment if it is the product
of deliberate indifference. Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001)
(citing Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993). The plaintiff must
show that a prison official knew that the plaintiff was being subjected to
unwarranted punishment, and that the official failed to act (or took action that
was ineffectual under the circumstances) to cause an unjustified detention.
Moore, 986 F.2d at 686.
Section 302.11(1) of the Wisconsin statutes provides that an inmate is
entitled to “mandatory release” on parole by the Department of Corrections.
“The mandatory release date is established at two-thirds of the sentence.” Id.
The court understands the plaintiff’s references to his “M.R. date” to be
references to his mandatory release date.

5

The plaintiff has not explained what sentence the state court imposed.
The plaintiff has not indicated what he believes his original mandatory release
date to have been. He has not explained how filing a petition for a “PMR” in
court would result in him being held beyond his release date. The plaintiff’s
mere allegation that he was held beyond his mandatory release date, without
more, is not sufficient to state a claim—certainly not a claim that any of the
defendants knew that he was being subjected to unwarranted punishment, and
were deliberately indifferent to that fact.
2.

The Specific Defendants

The plaintiff has not made any specific allegations against defendants
Smith, Drankiewicz or Johnson. He does not mention Smith or Johnson
anywhere in the complaint other than the caption. He mentions Drankiewicz
only to say that “Records” and his social worker “forced” Drankiewicz to deny
him parole over and over. This is not an allegation that Drankiewicz knew that
the plaintiff was being subjected to unwarranted punishment, or that he failed
to act.
He alleges that Tomlin—who appears to work in the records
department—filed a petition to “place” a presumptive mandatory release date
on him. Even if an employee of the records department—which is what Tomlin
appears to have been—files a document with a court, this, standing alone, does
not state facts to support a claim that Tomlin knew that the plaintiff was being
subjected to unwarranted punishment. The plaintiff alleges that “the social
worker” lied to him; again, a “label” or “conclusion” is not sufficient to state a
claim. Nor is the plaintiff’s claim that “Records”—without naming any specific
6

individual—and his social worker “forced” the parole commissioner to deny him
parole more than a conclusory allegation.
3.

Sex Offender Programming

Finally, the plaintiff alleges that all of the defendants “forced” him to take
programming—such as the Sex Offender Treatment Programming—that his
sentencing judge did not order “back in the end of the 90’s and beginning of
2000.” Dkt. No. 12 at 3. He says that having to participate in the SOTP cause
at least four people to look at him differently, and to call him names and
threaten him. The plaintiff’s allegation is strange—he has one felony conviction,
and he was sentenced on that conviction in April 2005. It is not clear what the
plaintiff means when he says that a judge in the 1990’s did not sentence him
to such programming. Beyond that, he does not allege that the Department of
Corrections lacked authority to require him to participate in such programming
(if it did).
The plaintiff alleges that four people looked at him differently, called him
names and even threatened him. He does not identify these people. If these
people were employees of the Department of Corrections, they might be subject
to suit under 42 U.S.C. §1983 as state actors. But even a state actors verbal
harassment “does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner equal protection of
the laws.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (citations

7

omitted). If these four people were not state actors, they are not subject to
liability for civil rights violations under §1983.
The court concludes that the plaintiff has not stated a claim upon which
relief can be granted.
II.

SECOND MOTION TO PROCEED WITHOUT PREPAYING THE
FILING FEE
When the plaintiff filed his original complaint on December 12, 2016, he

also filed a motion to proceed without prepaying the filing fee. Dkt. No. 2. The
court ordered him to pay an initial partial filing fee of $15.83, dkt. no. 7; the
court received that payment on March 29, 2017. On August 2, 2017, in the
same order in which it ordered him to file an amended complaint, the court
granted the plaintiff’s request to proceed without prepaying the filing fee. Dkt.
No. 9.
The court received the amended complaint on October 3, 2017, and on
the same day, received another request from the plaintiff to proceed without
prepaying the filing fee. Dkt. No. 13. The plaintiff did not need to file this
second request; the court already had allowed him to proceed without
prepaying the fee. The court suspects the reason the plaintiff filed the second
request is that, when the court sent him a blank complaint form to use in filing
the amended complaint, the form included the application, which likely made
the plaintiff think he needed to file a second application. The court apologizes
to the plaintiff for any inconvenience. The court will deny the plaintiff’s second
motion as moot, because the court already had granted his first motion.

8

III.

CONCLUSION
The court DENIES AS MOOT the plaintiff’s second motion to proceed

without prepaying the filing fee. Dkt. No. 13.
The court ORDERS that this case is DISMISSED under 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. The clerk of
court will enter judgment accordingly. The court of clerk also will 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 Fed. R. of App. P. 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 Fed. R. App. P. 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 Fed. R. Civ P. 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 Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and

9

determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 2nd day of February, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

10