Burke v. Litsscher et al

Filing 4

ORDER signed by Judge J.P. Stadtmueller on 1/18/2017. Plaintiff to file amended complaint curing deficiencies in original complaint by 2/8/2017 or action will be dismissed with prejudice. See Order for further details. (cc: all counsel, via mail to Reginald D. Burke, Sr.)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REGINALD D. BURKE, SR.,
Plaintiff,

Case No. 16-CV-1681-JPS

v.
JON E. LITSCHER, DAVID MELBY,
LANCE WIERSMA, MELISSA M. LOHRE,
GRACE ROBERTS, AMY HARPER,
MONICA LUKACH, DENISE SYMDON,
PENNY VOGT, and TERESA
REICHMANN,

ORDER

Defendants.
The plaintiff filed a pro se complaint for alleged violations of his
constitutional rights. (Docket #1). This matter comes before the court on the
plaintiff’s petition to proceed in forma pauperis. (Docket #2). Notwithstanding
the payment of any filing fee, the Court must dismiss a complaint if it raises
claims that are “frivolous or malicious,” that is, 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. § 1915(e)(2)(B).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th
Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).

To state a cognizable claim under the federal notice pleading system,
the 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 the 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 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 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 well-pleaded factual allegations, the court
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/she was deprived of a right secured by the Constitution or laws of
the United States; and 2) the deprivation was visited upon him/her by a
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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). The court is obliged to give the 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)).
The focus of the plaintiff’s complaint is that he is being improperly
kept on the Wisconsin Sex Offender Registry, and will be forced to do so for
the remainder of his life. His registration is, however, proper under
Wisconsin law and according to the facts alleged and exhibits attached to the
complaint. In 1979, a jury convicted the plaintiff of, inter alia, two counts of
second degree sexual assault. See State v. Reginald Donnett Burke, Milwaukee
County Circuit Court, 1979-CF-5184. In 1996, he pleaded no contest to, inter
alia, two counts of third degree sexual assault. See State of Wisconsin v.
Reginald D. Burke, Walworth County Circuit Court, 1996-CF-226.
Wisconsin statutes provide that anyone convicted of a sex offense after
December 25, 1993, must comply with sex offender reporting requirements.
Wis. Stat. § 301.45(1g)(a). All of the above convictions are “sex offenses,” but
the 1979 offenses do not fall within the stated time frame.1 This is important
because lifetime registration applies to, among other persons, those who
have been found guilty of two or more sex offenses. Id. § 301.45(5)(b)1. The
plaintiff believes that because the 1979 offenses do not count under Section
301.45(1g)(a), he should only be considered to have one registerable sex
offense, and thus he need not be subject to lifetime registration. He contends

1

“Sex offenses” include violations of Section 940.225(2) (second degree sexual assault),
the basis for the 1979 offenses, and Section 940.225(3) (third degree sexual assault), the basis for
the 1996 offenses. Wis. Stat. § 301.45(1d)(b).

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the defendants, various members of the Wisconsin Department of
Corrections (the “DOC”), have been improperly counting the 1979 offenses
so as to keep him on the registry.
The plaintiff’s claim is based on a misunderstanding of how the
relevant statutes operate in conjunction with one another. As noted above,
the 1996 offenses fall within Section 301.45(1g)(a), and so they impose a
registration requirement on the plaintiff. Section 301.45(5) governs release
from the registration requirements, and its relevant subsections are as
follows:
(b) A person who is covered under sub. (1g)(a) . . . shall
continue to comply with the [registration] requirements of this
section until his or her death if any of the following applies[.]
...
1. The person has, on 2 or more separate occasions, been
convicted . . . for a sex offense[.]
Id. § 301.45(5)(b) and (b)1. Unlike Section 301.45(1g)(a), Section 301.45(5)(b)1
has no time limitation. Thus, for purposes of reaching the two sex offense
threshold, the state must count any sex offenses committed throughout the
person’s lifetime. Because he has two separate sex offenses, one from 1996
and the other 1979, the plaintiff meets Section 301.45(5)(b)1’s requirements.
In other words, the 1996 offenses placed the plaintiff on the registry, and

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when considered together with the 1979 offenses, these statutes prevent him
from leaving the registry, in this case, for his entire life.2, 3
With that confusion alleviated, the Court notes that most of the
complaint is either based on the registration requirement itself, or issues
derived therefrom, such as the need to wear a location-monitoring ankle
bracelet. As described above, these allegations fail to state valid claims for
relief; if the defendants were correct in keeping the plaintiff on the registry,
they could not have violated any of his constitutional rights. However, it is
not clear whether the plaintiff’s complaint attempts to state claims which are
not dependent on the lifetime registration issue. Consequently, the Court will
permit the plaintiff to amend his complaint to remove the invalid claims
described above and more clearly state any other potential claims he
attempted to bring in the original complaint. The amended complaint must
be received no later than February 8, 2017. If no amended complaint is
received, the Court will assume that the complaint was entirely based on the
claims discussed above and will dismiss it this matter with prejudice for
failure to state any cognizable claims. If an amended complaint is received,
it will be screened pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Court makes additional observations for the plaintiff’s benefit. A
successful complaint alleges “the who, what, when, where, and how: the first

2

Another effect of counting the 1979 and 1996 offenses is that a “Special Notice Bulletin”
must be issued by the DOC wherever the plaintiff resides. Wis. Stat. § 301.46(2m)(am)1. The
bulletin is sent to the police chief of that community and the sheriff of the relevant county,
notifying them of the plaintiff’s presence. Id. The plaintiff’s complaint appears to encompass
this issue as well, though it is founded on the Court’s analysis above.
3

As shown by the correspondence attached as exhibits to the complaint, the defendants
and other DOC personnel have previously explained this to the plaintiff. See (Docket #1-1 at 29,
30, 33).

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paragraph of any newspaper story.” See DiLeo v. Ernst & Young, 901 F.2d 624,
627 (7th Cir. 1990). The plaintiff’s initial complaint included voluminous legal
argument, citations, and other non-factual allegations and commentary.
None of these are necessary or helpful additions to a civil complaint. Instead,
he need only provide “a short and plain statement of the claim” showing
that he is entitled to relief. Fed. R. Civ. P. 8(a)(2) (emphasis added).
Further, an amended complaint supersedes the prior complaint and
must be complete in itself without reference to the original complaint. See
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 105657 (7th Cir. 1998). In Duda, the Seventh Circuit emphasized that, in such
instances, the “prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at 1057 (citation omitted); see also
Pintado v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)
(“As a general matter, ‘[a]n amended pleading supersedes the former
pleading; the original pleading is abandoned by the amendment, and is no
longer a part of the pleader's averments against his adversary.’”) (quoting
Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA
VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006)).
Accordingly,
IT IS ORDERED that the plaintiff shall file an amended complaint
curing the deficiencies in the original complaint described above on or before
February 8, 2017, or this matter will be dismissed with prejudice.

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Dated at Milwaukee, Wisconsin, this 18th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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