McGee v. Prey et al
ORDER signed by Judge Pamela Pepper on 10/11/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED; initial partial filing fee WAIVED. Defendants Catharine White, James Habeck and Steven Weetz DISMISSED. US Marshal to serve copy of complaint and this order on Defendant Nick Prey under FRCP 4. Defendant Prey to file responsive pleading to the complaint. Plaintiff to pay $350 balance of filing fee in installments as he is able. Parties may not begin discovery until the court enters a scheduling order setting forth deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Danyell McGee)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 16-cv-1682-pp
NICK PREY, STEVEN WEETZ,
CATHARINE WHITE, and
JUDGE JAMES HABECK,
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
The plaintiff, an inmate at the Shawano County Jail, is representing
himself. He filed this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a
motion for leave to proceed without prepayment of the filing fee, dkt. no. 2. This
order resolves the plaintiff’s motion and screens his complaint.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff is incarcerated. 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 conditions. One of those
conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C.
On December 21, 2016, January 20, 2017, and March 10, 2017, the
court ordered the plaintiff to pay an initial partial filing fee of $18.95. Dkt. No.
5, 9, 14. The plaintiff has not paid the fee. After the court imposed the fee,
however, the plaintiff wrote to the court two letters, indicating that he did not
have the funds to pay even the initial partial filing fee. Dkt. Nos. 15, 16. He
indicated that if funds became available in the future, he would pay then. Id.
The court is satisfied that the plaintiff cannot pay the initial partial filing fee at
this time. See Dkt. No. 15, 16; see also 28 U.S.C. §1915(b)(4). The court will
waive the initial partial filing fee, and will grant the plaintiff’s motion to proceed
without prepayment of the filing fee. The court will require the plaintiff to pay
the filing fee over time as set forth at the end of this decision.
Screening the Plaintiff’s Amended 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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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).
To proceed 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 defendant was 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 gives a pro se plaintiff’s
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
The Plaintiff’s Allegations
The plaintiff is suing Shawano County Judge James Habeck, Shawano
County Detective Nick Prey, Shawano County District Attorney Catharine
White, and Public Defender Steven Weetz. Dkt. No. 1 at 1.
He alleges that on August 8, 2016, Judge Habeck signed warrants from
“affidavit CI” (presumably, a confidential informant) allowing Detective Prey to
track the plaintiff by GPS, undercover vehicles and phone conversations. Id. at
2. On August 11, 2016, detectives arranged a traffic stop in Shawano County.
Id. The plaintiff was a passenger in the car and, when asked for his
identification, gave his brother’s name. Id. Detectives and a dog searched the
vehicle for over two hours and didn’t find any drugs. Id. District Attorney White
charged the plaintiff with identity theft and possession of a rolled-up dollar bill.
Later in the day on August 11, 2016, the plaintiff was told he qualified
for a public defender, and he had a brief consultation with Attorney Weetz. Id.
at 3. The plaintiff asked Attorney Weetz to file for a speedy trial, but Weetz did
not do so. Id. The plaintiff alleges that Attorney Weetz switched the judge on
the plaintiff’s case to Judge Habeck, then dropped the plaintiff as a client,
alleging a “conflict of entrance.” Id. At the time, the plaintiff didn’t know that
Judge Habeck had signed off on the initial investigation of the plaintiff. Id. The
plaintiff hasn’t been able to get his bail reduced, and he alleges that District
Attorney White, with Judge Habeck’s approval, used the plaintiff’s juvenile
offense in court because the plaintiff doesn’t have an adult record to support
his bail amount. Id.
On August 16, 2016, Detective Prey took the plaintiff’s cell phone from
his property at the Shawano County Jail. Id. On August 24, 2016, the plaintiff
complained to county officials about the phone. Id. On August 28, 2016, the
plaintiff was given a search warrant, signed by Judge Habeck, that authorized
Detective Prey to take the plaintiff’s phone on August 19, 2016—three days
after the plaintiff noticed the phone had been illegally removed. Id.
Online court records from Shawano County indicate that the State charged
the plaintiff with resisting or obstructing an officer in violation of Wis. Stat.
§946.51(1); misdemeanor bail jumping in violation of Wis. Stat. §946.49(1)(a);
and possession of drug paraphernalia in violation of Wis. Stat. §961.573(1). See
https://wcca.wicourts.gov (last visited October 10, 2017).
The plaintiff states that he was denied the right to vote in this year’s
presidential election. Id. at 4. When he asked about voting, the plaintiff was
told he couldn’t vote because he was incarcerated, despite the fact that he’s not
a felon. Id.
The plaintiff believes that District Attorney White and Judge Habeck have
kept him confined under false pretenses, as a result of ethical violations and
abuse of power, with the assistance of the public defender’s office. Id.
According to the plaintiff, keeping him unlawfully confined has allowed
Detective Prey to build a case unlawfully, using fabricated evidence to
manufacture a conviction while the plaintiff sits in jail without any real legal
For relief, based on his treatment as a prisoner and the inappropriate
conduct from the Shawano County Justice System, the plaintiff seeks
monetary damages if he wins his criminal case by judgment. Id. at 5. If his
criminal case settles before trial, the plaintiff wants his name cleared of all
charges, as well as monetary damages and legal fees. Id.
The Court’s Analysis
The plaintiff’s claims against Judge Habeck and District Attorney White
do not state claims upon which the court can grant relief, because government
officials such as Judge Habeck and District Attorney White have absolute
immunity from suit based on actions undertaken pursuant to their official
duties in the plaintiff’s criminal case. “A judge has absolute immunity for any
judicial actions unless the judge acted in the absence of all jurisdiction.” Polzin
v. Gage, 636 F.3d 834, 838 (7th Cir. 2011). There is no indication that Judge
Habeck didn’t have jurisdiction over the plaintiff, so he “ha[d] absolute
immunity for his judicial actions.” Id. District Attorney White is likewise
immune. “Absolute immunity shields a person acting . . . as a prosecutor [ ]
from §1983 liability when performing her duties in the judicial process.” Id.
(citing Imbler v. Pachtman, 424 U.S. 409, 420–29 (1976) (discussing absolute
immunity for state prosecutors from §1983 liability). Those duties include “the
preparation and filing of . . . charging documents [such as an information and
arrest warrants].” Kalina v. Fletcher, 522 U.S. 118, 128 (1997).
For these reasons, the court will not allow the plaintiff to proceed on his
claims against Judge Habeck and District Attorney White.
With regard to Attorney Weetz: 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 the color of state law, which means the
person exercised power “possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Id.;
West v. Atkins, 487 U.S. 42, 49 (1988). Plaintiffs cannot sue criminal defense
attorneys under §1983 because they do not act under the color of state law;
they are the adversary of the State. Polk Cty. v. Dodson, 454 U.S. 312, 318,
325 (1981); see Swift v. Swift, 556 Fed. Appx. 509, 510-11 (7th Cir. 2014);
West, 487 U.S. at 50. Even attorneys who are appointed do not act under the
color of state law. Polk, 454 U.S. at 318 (“[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.”). The plaintiff might be able
to bring a malpractice claim against Attorney Weetz in state court, or, because
he was convicted on the state 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. §2254.2 The plaintiff has not,
however, stated a claim against Attorney Weetz under §1983.
With regard to Detective Prey: reading the allegations in the complaint
liberally, it appears that the plaintiff alleges that Prey fabricated evidence
against him, leading to his arrest and pretrial detention. These allegations—
essentially allegations of false arrest—implicate the plaintiff’s rights under the
Fourth Amendment. See Manual v. City of Joliet, Ill., ___ U.S. ___, 137 S. Ct.
911, 918-19 (2017). The plaintiff also alleges that on August 16, 2016,
Detective Prey took his cell phone without a search warrant. (He alleges that
the search warrant that he was shown on August 28, 2016 authorized
Detective Prey to seize the phone on August 19, 2016, not three days prior.)
These allegations implicate the plaintiff’s rights under the Fourth Amendment.
The court will allow the plaintiff to proceed on Fourth Amendment claims
against Detective Prey.
Wisconsin online court records show that on April 18, 2017, the plaintiff pled
guilty to all three charges, and was sentenced the same day. See
https://wcca.wicourts.gov (last visited October 10, 2017).
Finally, the plaintiff’s allegations that he was denied the right to vote
during the last presidential election implicate his constitutional rights. See
O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (Equal Protection Clause
guarantees a pretrial detainee’s right to vote); see also McDonald v. Bd. of
Election Comm’rs., 394 U.S. 802, 807-09 (1969) (unsentenced inmates
otherwise under no disability to vote may not be denied the franchise, although
the state need not provide them with the most expeditious means of voting
possible). But the plaintiff does not indicate in his complaint who deprived him
of his right to vote—in other words, he has not named a defendant or
defendants. And unless Detective Prey is the person who denied him his right
to vote, this allegation is not related to the plaintiff’s remaining Fourth
Amendment claims against Detective Prey. If the plaintiff wants to pursue this
claim, he needs to file a new case, and name a specific defendant or
defendants. The court will not allow the plaintiff to proceed on this claim.
In sum, the plaintiff may proceed on Fourth Amendment claims against
Detective Prey, as described above. The court will dismiss all remaining
defendants and claims.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis). Dkt. No. 2. The court WAIVES
the initial partial filing fee.
The court DISMISSES defendants Weetz, White and Habeck.
The court ORDERS that the United States Marshal shall serve a copy of
the complaint and this order on defendant Detective Prey under Federal Rule of
Civil Procedure 4. The court advises the plaintiff that Congress requires the
U.S. Marshals Service to charge for making or attempting such service. 28
U.S.C. §1921(a). The current fee for waiver-of-service packages is $8.00 per
item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the U.S. Marshals
Service precisely because in forma pauperis plaintiffs are indigent, it has not
made any provision for these fees to be waived either by the court or by the
U.S. Marshals Service.
The court ORDERS that defendant Detective Prey shall file a responsive
pleading to the complaint.
The court ORDERS that the plaintiff shall pay the $350.00 balance of the
filing fee in installments as he is able. Payments shall be forwarded to the clerk
of court at the address listed below. The plaintiff shall clearly identify the
payments by the case name and number assigned.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the case. Because each filing will be
electronically scanned and entered on the docket upon receipt by the clerk, the
plaintiff need not mail copies to the defendants. All defendants will be served
electronically through the court’s electronic case filing system. The plaintiff
should retain a personal copy of each document filed with the court.
The court warns the plaintiff that failure to timely filing documents may
result in the dismissal of this case for failure to prosecute. The parties must
notify the Clerk of Court of any change of address. Failure to do so could result
in orders or other information not being timely delivered, thus affecting the
legal rights of the parties.
Dated in Milwaukee, Wisconsin this 11th day of October, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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