Mcnutt v. Savagain et al

Filing 22

ORDER signed by Judge J.P. Stadtmueller on 8/30/2017: DISMISSING this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; DIRECTING the Clerk of Court to document that this inmate has incurred a &quo t;strike" under 28 U.S.C. § 1915(g); 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. Agency having custody of Plaintiff to COLLECT from his prison trust account the balance of the filing fee in accordance with this Order. (cc: all counsel, via mail to AAG Corey F. Finkelmeyer, and to Sean Anthony McNutt and Warden at New Lisbon Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAN ANTHONY MCNUTT,
Plaintiff,

v.

WILLIAM SAVAGAIN and RYAN
DEWITT,

Case No. 17-CV-375-JPS

ORDER

Defendants.
Plaintiff, Sean Anthony McNutt (“McNutt”), who is incarcerated at
New Lisbon Correctional Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that his civil rights were violated. (Docket #1). In an
order dated April 10, 2017, Magistrate Judge David E. Jones granted
McNutt leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
(Docket #8).
He also screened McNutt’s complaint pursuant to Section 1915A(b)
and found that it should be dismissed for failure to state a viable claim. Id.
at 2–4. Magistrate Jones observed that McNutt’s sole claim—that
Milwaukee police officers illegally eavesdropped on a call between himself
and a confidential informant—is patently meritless; the law allows an
undercover agent to record his conversations with a suspect and allows the
government to introduce the recording in evidence. Id. at 3–4; 18 U.S.C.
§2511(2)(c). United States v. Eschweiler, 745 F.2d 435, 437 (7th Cir. 1984);
United States v. McNulty, 729 F.2d 1243, 1246 (10th Cir. 1983). This is not a
violation of federal or state law, and thus Magistrate Jones dismissed
McNutt’s complaint. Id. at 4–5.

After the case was dismissed, McNutt filed a motion to amend his
complaint. (Docket #10, #12). The amended complaint repeated the
eavesdropping claim and also joined a claim alleging that Milwaukee police
officers relied on a facially invalid warrant to search his home, thereby
violating the Fourth Amendment. (Docket #12). Magistrate Jones construed
the motion as a motion for reconsideration of his screening order and
denied it, noting that neither the prior eavesdropping claim nor the new
search-warrant claim were facially plausible. (Docket #13 at 2–4). As to the
search-warrant claim specifically, Magistrate Jones found that there were
several reasonable and lawful explanations for the alleged discrepancies in
the warrant and that McNutt did not allege any facts substantiating his
claim of malfeasance. Id. at 3–4.
McNutt then appealed the dismissal of his complaint and denial of
leave to amend. (Docket #14). However, the Court of Appeals did not touch
the merits of the appeal, because under Coleman v. Labor and Industry Review
Commission, 860 F.3d 461, 475 (7th Cir. 2017), Magistrate Jones had no
authority to enter final judgment dismissing McNutt’s action without the
consent of the defendants—who, of course, had not yet been served prior
to the issuance of his screening order or his decision on the motion to amend
the complaint. Thus, the matter was reassigned to this branch of the Court
on remand but without any guidance as to the propriety of the earlier
decisions Magistrate Jones issued.
The Court has independently reviewed McNutt’s complaint, his
proposed amended complaint, and Magistrate Jones’ two dispositive
orders. Having completed that review, the Court is satisfied that, for the
reasons given by Magistrate Jones, this case should be dismissed for failure
to state any claim upon which relief may be granted. McNutt’s
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eavesdropping claim is foreclosed by well-settled principles of law, and the
search warrant claim does not raise the possibility of his success above the
speculative level. Both claims must, therefore, be dismissed. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Accordingly,
IT IS 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 the 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;
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

Page 3 of 4

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 30th day of August, 2017.
BY THE COURT:

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

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