Lopez et al v. Liska et al

Filing 22

ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS signed by Chief Judge William C Griesbach on 12/4/2017. Lopez's complaint is DISMISSED without prejudice. 12 Motion to Appoint Counsel and 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee are Denied as Moot. The Clerk of Court shall enter judgment accordingly. (cc: all counsel, via US Mail to Lopez and Warden)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT I. LOPEZ, et al.,
Plaintiffs,
v.

Case No. 17-C-526

FRANK LISKA JR., et al.,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING COMPLAINT

Plaintiff Robert Lopez, proceeding pro se, filed a civil rights complaint pursuant 42 U.S.C.
§ 1983 and has requested to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Pursuant to
the Prison Litigation Reform Act (“PLRA”), the plaintiff is required to pay the statutory filing fee
of $350.00 for this action. See 28 U.S.C. § 1915(b)(1).
On September 5, 2017, Magistrate Judge Jones ordered Lopez to forward to the Clerk of
Court an initial partial filing fee of $13.37. ECF No. 17. The court ordered that this initial partial
filing fee be paid by September 26, 2017. Id. Lopez failed to pay the filing fee. On October 11,
2017, Magistrate Judge Jones ordered Lopez to either pay the initial partial filing fee or show cause
why his action should not be dismissed for failure to pay. ECF No. 19. Additionally, the court
ordered Lopez to respond by November 1, 2017, and warned that a failure to respond by that date
would result in the dismissal of Lopez’s complaint. Id. Lopez did not respond.

Based upon the foregoing, on November 16, 2017, Magistrate Judge Jones recommend that
the district court dismiss Lopez’s complaint1 for failure to prosecute, failure to comply with court
orders, and lack of diligence pursuant to Federal Rule of Civil Procedure 41(b) and Civil Local Rule
41(c).

The order informed Lopez that he had fourteen days to file an objection to the

recommendation. On November 28, 2017, Lopez filed an unsigned objection to Magistrate Judge
Jones’ report and recommendation. ECF No. 21. However, Lopez’s filing does not pertain to his
failure to pay his initial partial filing fee. Id. Rather, he files over twenty pages of incoherent legal
citations pertaining to his amended complaint. Id. Lopez still has not paid the partial filing fee and
has not offered any explanation as to why he has failed to pay the fee. Accordingly, the case will be
disimissed.
Even if Lopez had paid his initial partial filing fee, the result would be the same. The court
is required to dismiss any action that is frivolous or fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A (requiring the court to screen a complaint in
a civil action in which a prisoner seeks redress from a government entity or officer or employee of
a governmental entity). From even a cursory review of Lopez’s complaint,2 it is clear that it fails to
state a claim.
Lopez’s complaint is largely incoherent and consists primarily of random names, legal
phrases, and legal citations. ECF No. 10. However, reading it liberally, it appears that Lopez is

1

Because not all parties have had an opportunity to consent to magistrate judge jurisdiction,
Magistrate Judge Jones could not dismiss the claims. See Coleman v. Labor & Indus. Review
Comm’n, 860 F.3d 461 (7th Cir. 2017).
2

Lopez filed an amended complaint on August 2, 2017. ECF No. 10. Therefore, the court
is addressing the merits of Lopez’s amended complaint.
2

attempting to challenge his state court conviction. Specifically he appears to be alleging that the
police in his state criminal conviction committed misconduct by coaching eye witnesses to falsely
identify a suspect.
Lopez cannot challenge his underlying conviction through an action for damages under 42
U.S.C. § 1983. “Challenges to the validity of any confinement . . . are the province of habeas
corpus.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (citing Preiser v. Rodriguez,
411 U.S. 475, 500 (1973)). Stated differently, prisoners may brings claims for unconstitutional
things that happen to them via § 1983; however, claims challenging the fact that they are confined,
i.e. challenging their underlying conviction, must be brought via a petition for habeas corpus.
Furthermore, the United State Supreme Court has explained that if a prisoner’s success in their
§ 1983 claim for money damages would implicitly question the validity of conviction, the prisoner
“must first achieve favorable termination of his available state, or federal habeas, opportunities to
challenge the underlying conviction or sentence.” Id. (citing Heck v. Humphrey, 512 U.S. 477
(1994)). Not only would Lopez’s § 1983 claim implicitly question the validity of his conviction that
appears to be the entire point of the lawsuit—to challenge his underlying conviction. Therefore,
Lopez’s claims must be dismissed. Furthermore, the court will not sua sponte convert Lopez’s case
from a § 1983 claim to a habeas action because it appears that Lopez already has an ongoing petition
for habeas corpus under 28 U.S.C. § 2254. Lopez v. Dittmann, No. 2:17-cv-00528-DEJ (E.D. Wis.
Apr. 13, 2017); see also Copus v. City of Edgerton, 96 F.3d 1038, 1039 (7th Cir. 1996) (“The
district court was not authorized to convert a § 1983 action into a § 2254 action . . . . It may be that
as a § 1983 suit it is defective, but if so the proper step would have been to dismiss the complaint
. . . rather than to “convert” the case to an impossible or inappropriate alternative suit.”).
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IT IS THEREFORE ORDERED that the court ADOPTS Magistrate Judge Jones’ Report
and Recommendation (ECF No. 20) to dismiss Lopez’s complaint for failure to prosecute, failure
to comply with court orders, and lack of diligence.
IT IS FURTHER ORDERED that Lopez’s complaint is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1) as frivolous and
for failure to comply with court orders pursuant to Federal Rule of Civil Procedure 41(b) and Civil
Local Rule 41(c). See Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (explaining that a
complaint barred by Heck is considered legally frivolous).
IT IS ALSO ORDERED that plaintiff’s outstanding motions, motion for leave to appeal
in forma pauperis (ECF No. 2) and plaintiff’s motion to appoint counsel (ECF No. 12) are DENIED
AS MOOT.
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350 balance of the filing fee by collecting monthly payments
from the plaintiff’s prison trust fund account in an amount equal to 20% of the preceding month’s
income credited to the prisoner’s trust account and forwarding payment 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 the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
order along with plaintiff’s remaining balance to the receiving institution. See Newlin v. Helman,
123 F.3d 429, 434 (7th Cir. 1997) (explaining that process of collecting a filing fee prescribed in 28
U.S.C. § 1915(b) may be applied when a plaintiff seeks leave to proceed in forma pauperis,
regardless whether that leave is ultimately granted).
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IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the officer in charge of the
agency where the inmate is confined.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
Dated this 4th

day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

This order and the judgment to follow are final. The plaintiff 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. 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). If the plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If the plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If the plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
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.
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 judgment. The court cannot extend these deadlines. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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