Vaughn v. Griesbach et al

Filing 8

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/12/2018. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 7 Plaintiff's MOTION to Waive Initial Partial Filing Fee GRANTED. Plaintiff to pay $350 filing fee as he is able. Case DISMISSED with prejudice under 28 USC §§1915(e)(2)(B) and 1915A(b)(1) for seeking monetary relief from defendants who are immune from such relief. The court declines to issue certificate of appealability. (cc: all counsel, via mail to Treon Vaughn at Kenosha County Detention Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TREON D. VAUGHN,
Plaintiff,
v.

Case No. 17-cv-437-pp

WILLIAM GRIESBACH and
J.P. STADTMUELLER,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO WAIVE INITIAL PARTIAL
FILING FEE (DKT. NO. 7), GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
SCREENING PLAINTIFF’S COMPLAINT AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, who is representing himself, was incarcerated at the
Kenosha County Detention Center when he filed this complaint, alleging that
the defendants violated his civil rights under 42 U.S.C. §1983. This order
resolves the plaintiff’s motion for leave to proceed without paying the filing fee
and his motion to waive the initial partial filing fee. It also screens the plaintiff’s
complaint, and dismisses it for failure to state a claim.
I.

Waiving the Initial Partial Filing Fee
The Prison Litigation Reform Act applies to this case, because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
law allows a court to give an incarcerated plaintiff the opportunity to proceed
with his lawsuit without prepaying the full case filing fee, as long as he meets

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certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b).
On April 12, 2017, the court ordered the plaintiff to pay an initial partial
filing fee of $17.65 on or before May 5, 2017. Dkt. No. 6. On April 19, 2017, the
plaintiff filed a motion asking the court to waive the initial partial filing fee.
Dkt. No. 7. He asserted that, despite earlier deposits, he has no regular income
and has received no money since February 2017. Id. A review of the plaintiff’s
prisoner trust account statement shows that the plaintiff has no regular
income, a zero balance in his account and a running balance of debt to the
institution. Dkt. No. 5. The court concludes that the plaintiff doesn’t have the
money to pay the initial partial filing fee, and will grant the plaintiff’s motion to
waive it. Dkt. No. 7.
The court also will grant the plaintiff’s motion to proceed without
prepayment of the full filing fee. Dkt. No. 2. “In no event shall a prisoner be
prohibited from bringing a civil action . . . for the reason that the prisoner has
no assets and no means by which to pay the initial partial filing fee.” 28 U.S.C.
§1915(b)(4). The court will require the plaintiff to pay the entire $350 fee over
time. Because it appears that the plaintiff is now out of custody, however, the
court cannot direct the institution to collect the filing fee according to 28 U.S.C.
§1915(b)(2). The court will require the plaintiff to make payments to the court
as he is able.

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II.

Screening the Plaintiff’s Complaint
When a plaintiff is proceeding in forma pauperis (i.e., without prepaying

the full filing fee), the law requires a court to dismiss the case if the court
determines that the case is frivolous or malicious, fails to state a claim on
which relief may be granted or seeks relief against a defendant who is immune
from such relief. 28 U.S.C. §1915(e)(2).
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). The court will
give 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 (1976)).
The court can most easily describe the allegations in the plaintiff’s
complaint in the context of several other cases he filed in the Eastern District
of Wisconsin. In November 2016, the plaintiff filed three cases that were
assigned to United States District Judge Stadtmueller. See Case Nos. 16-cv1486, 16-cv-1499, 16-cv-1557 (E.D. Wis.). Judge Stadtmueller dismissed all
three cases in a single order entered January 27, 2017. Id. The order stated
that, while the judge had given the plaintiff “multiple opportunities” to follow
the “appropriate procedures for demonstrating to the Court that he was
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indigent,” the plaintiff had not done so. See, e.g., Vaughn v. Litscher, et al., 16cv-1486-jps (E.D. Wis.) at dkt. no. 1, p. 2. Because the plaintiff hadn’t followed
the appropriate procedures, Judge Stadtmueller had ordered him to pay the
filing fees by a date certain, but the plaintiff had not done that, either. Id. For
these reasons, Judge Stadtmueller dismissed the cases without prejudice. Id.
On February 3, 2017, the plaintiff filed a new case that named Judge
Stadmueller as a defendant. See Vaughn v. Stadtmueller, Case No. 17-cv-164WCG (E.D. Wis.), dkt. no. 1. The plaintiff alleged that, in dismissing his three
cases, Judge Stadtmueller had violated his civil rights under §1983, had
conspired against him, and had acted in an arbitrary and capricious manner.
Id. at 4. In addition to monetary damages, the plaintiff requested reinstatement
of the three prior cases. Id. This case was assigned to United States District
Judge William C. Griesbach. Judge Griesbach waived the initial partial filing
fee and granted the plaintiff’s motion for leave to proceed without prepaying the
fee. Id. at Dkt. No. 9. He found, however, that the plaintiff had not stated a
claim against Judge Stadtmueller, because the law says that a judge is
immune from being sued based on rulings that he issues in the scope of his
judicial capacity. Id. at dkt. 9, p. 3 (citing Dawson v. Newman, 491 F.3d 656,
660-661 (7th Cir. 2005)). Judge Griesbach dismissed the complaint against
Judge Stadtmueller with prejudice and assessed the $350 filing fee. Id.
Just two weeks later, the plaintiff filed the complaint in this case,
naming Judge Stadtmueller and Judge Griesbach as the two defendants. Dkt.
No. 1. Once again, the plaintiff seeks damages and reinstatement of the three
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cases Judge Stadtmueller dismissed. Id. at 4. He explains that, in the three
cases Judge Stadtmueller dismissed, he had provided the court with all the
documents he was able to obtain, but that he wasn’t able to walk to the inmate
trust account specialist’s office, and that the institution would not give him the
documents without charging him for them (and he could not pay). Id. at 3. He
alleges that the trust account people in the institution business office lied, and
failed to provide the documents he needed. Id. at 4. He asserts that Judge
Griesbach helped Judge Stadtmueller violate his rights. Id. at 2.
The plaintiff attached to the complaint in this case twenty-seven pages of
documents. Dkt. No. 1-1. These documents show that he applied for a legal
loan to try to pay the filing fee, and that he made numerous disbursement
requests to ask for money to pay the filing fee.
The court notes that the approach the plaintiff has taken to pursue the
claims in the three cases Judge Stadtmueller dismissed is not helping him.
Judge Stadtmueller dismissed those three cases “without prejudice”—that
means that the plaintiff is free to file the cases again. To do that, he needs only
to file new complaints; the clerk’s office will file new cases when it receives
those new complaints. Because the plaintiff paid nothing toward the filing fees
in those three cases (and there is no court order requiring him to pay the filing
fees), starting over should not create any financial hardship for him. Then, in
the new cases, he can file motions to proceed without prepaying the filing fee.
He can provide the clerk’s office with his inmate trust account statement for
the six-month period preceding the date on which he files the complaint. If that
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statement shows that the plaintiff doesn’t have enough money to pay the filing
fee, that will be sufficient for the court to consider his request.
Alternatively, the plaintiff could file motions in each of the three
dismissed cases, asking Judge Stadtmueller to vacate those judgments and
reopen the three cases. If the plaintiff chooses this option, however, he should
be aware that courts will set aside judgments under Federal Rule of Civil
Procedure 60(b) only if one of the circumstances listed in the rule applies.
Russell v. Delco Remy Div. of Gen. Motors, 51 F.3d 746, 749 (7th Cir. 1995).
Those circumstances are:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable due diligence, could not have been
discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged; it
is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
What will not help the plaintiff, however, is continuing to file new
lawsuits, suing judges who dismiss his earlier lawsuits. Judge Griesbach was
correct that judges are absolutely immune from lawsuits based on rulings they
issue within the scope of their judicial authority. See Dawson v. Newman, 419
F.3d 656, 660-61 (7th Cir. 2005). If the plaintiff continues to sue judges who
issue decisions he does not like, those lawsuits will continue to get dismissed,
and he’ll continue to owe the filing fees for them. If the plaintiff files any
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additional cases suing judges for conduct that is part of their role as judge, the
court may consider the complaint(s) frivolous and assess strike(s) under 28
U.S.C. §1915(g).
The court will dismiss this case because the plaintiff seeks monetary
damages against defendants who have absolute immunity. As noted above, the
court also will assess the $350 filing fee for this case. The plaintiff is free either
to re-file his original three lawsuits, or to file motions in the three dismissed
cases, asking Judge Stadtmueller to vacate his judgments and reopen those
cases.
III.

Conclusion
The court GRANTS the plaintiffs’ motion to waive the initial partial filing

fee. Dkt. No. 7.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court further ORDERS that the plaintiff shall pay the $350 filing fee.
As he is able, he shall forward payments to the Clerk of Court, 517 U.S.
Courthouse, Milwaukee, Wisconsin 53202. The payments shall clearly identify
the case name and number in this case.
The court DISMISSES this case with prejudice under 28 U.S.C.
§§1915(e)(2)(B) and 1915A(b)(1) for seeking monetary relief from defendants
who are immune from such relief. The Clerk of Court will enter judgment
accordingly.

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THE COURT CERTIFIES that any appeal from this order would not be
taken in good faith under 28 U.S.C. §1915(a)(3), unless the plaintiff offers bona
fide arguments supporting his appeal.
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 thirty (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). The plaintiff must
file any motion under Federal Rule of Civil Procedure 59(e) within twenty-eight
(28) days of the entry of judgment. The court cannot extend this deadline. See
Fed. R. Civ P. 6(b)(2). The plaintiff must file any motion under Federal Rule of
Civil Procedure 60(b) 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

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determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 12th day of March, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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