Liddell v. Racine County Clerk of Courts et al

Filing 17

ORDER signed by Judge J.P. Stadtmueller on 10/20/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING as moot 8 Plaintiff's Motion for Extension of Time to Pay Initial Partial Filing Fee; DENYING 6 and 10 Plaintiff's Motions to Appoint Counsel; DISMISSING CASE with prejudice pursuant to 28 U.S.C.§ 1915A(b)(1) for failure to state a claim; DIRECTING Clerk of Court to document that this inmate has incurred a "s trike" under 28 U.S.C. § 1915(g); ORDERING agency having custody of Plaintiff to collect the balance of the filing fee from Plaintiff's institution trust account in accordance with this Order; and CERTIFYING that any appeal from this m atter 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. (cc: all counsel, via mail to Anthony Liddell, Jr. and Warden at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTHONY LIDDELL, JR.,
Plaintiff,

v.

RACINE COUNTY CLERK OF
COURTS, STATE OF WISCONSIN,
CIRCUIT COURT ACCESS
DATABASE, and DEPARTMENT OF
CORRECTIONS,

Case No. 17-CV-565-JPS-JPS

ORDER

Defendants.
Plaintiff, who is currently incarcerated at Dodge Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). This matter comes before the Court
on Plaintiff’s motion to proceed in forma pauperis. (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $15.77. See 28 U.S.C. §
1915(b)(1).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a
complaint or portion thereof if the prisoner has raised 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. Id. § 1915A(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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry,
658 F.3d 702, 705 (7th Cir. 2011).
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Christopher v. Buss, 384 F.3d 879,
881 (7th Cir. 2004). 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’s allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted); Christopher, 384 F.3d at 881.

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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 was deprived of a right secured by the Constitution or laws
of the United States; and 2) the deprivation was visited upon him by a
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. Vill. of N. 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)).
Plaintiff alleges that on January 15, 2017, the Wisconsin Department
of Corrections (“WDOC”) falsely imprisoned him in the Racine County Jail
after a string of events involving clerical errors in his criminal record that
are apparently the fault of the Racine County Clerk of Court and the Circuit
Court Access Database. The first error involves violations he says he did
not commit, and the second involves a charge he says was dismissed.1 These

Plaintiff has not provided a Wisconsin circuit court case number for the
entries he believes are erroneous. He only supplies date ranges: April 12 to 18, 2012
for the violations he says he did not commit and October 22, 2015 to May 9, 2016
for the charge he says was dismissed. (Docket #1 at 2-3). Without a case citation,
and because Plaintiff’s criminal history in the Wisconsin circuit courts is
voluminous, the Court is unable to locate the allegedly erroneous entries about
1

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errors, he says, are defamatory and have proven a barrier to his “freedom
and employment.” (Docket #1 at 3). Apparently, an erroneous portion of
Plaintiff’s criminal record was referenced by probation agent Mike
Emmerich (“Emmerich”), who is not named as a defendant, when
Emmerich sought to have Plaintiff re-confined in the Racine County Jail.
Plaintiff states that “[t]he agent was not truthful during the preliminary
when he told public defender Shelia Smith, [magistrate] Jason Lubetke and
the Plaintiff that the battery, child abuse, endanger safety was not a charge
on file nor was it being used against the Plaintiff. Agent states that ‘the
questioned child neglect is just an example of guidelines that we use.’”
(Docket #1 at 3-4). Plaintiff mentions the due process clauses of the
Fourteenth and Fifth Amendments as sources of the constitutional rights
implicated here.
Plaintiff subsequently filed two “supplements” to his complaint in
which he appears to withdraw his claim under the Fourteenth Amendment
but add claims under the First, Sixth, Seventh, and Ninth Amendments.
(Docket #9 and #11). The only additional fact alleged in these supplements
is that every grievance Plaintiff files gets dismissed. (Docket #9 at 1).
Plaintiff seeks as relief compensatory and punitive damages, as well
as the removal from his criminal record of a charge that he claims has been
dismissed. (Docket #1 at 4). He also demands that “clerks not . . . neglect

which Plaintiff complains. However, the Court notes that publicly available
records do not show a criminal case filed against Plaintiff in Wisconsin in April
2012. There is a record for a case filed on October 23, 2015, Racine County Case
No. 2015CF1551, and it shows that “[o]ne or more charges in this case were
dismissed. The dismissed charges were not proven and have no legal effect.
Anthony T. Liddell, Jr. is presumed innocent of the dismissed charges.” See
https://wcca.wicourts.gov.

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their duties” and that a cross-reference system be implemented to prevent
future clerical errors related to criminal records. Id.
Setting aside the procedural defects in Plaintiff’s piecemeal
submissions, Plaintiff’s complaint, even when liberally construed to include
all supplements, suffers from fatal defects. The first relates to immunity.
The Eleventh Amendment bars a suit against a state, in federal court,
regardless of the relief sought, unless Congress has overridden the state’s
immunity or the state has waived it. Ryan v. Ill. Dep’t of Children & Family
Servs., 185 F.3d 751, 758 (7th Cir. 1999). Section 1983 does not abrogate
Wisconsin’s Eleventh Amendment immunity. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66 (1989). Nor has Wisconsin waived its immunity.
Buchanan v. City of Kenosha, 57 F. Supp. 2d 675, 677 (E.D. Wis. 1999).
Therefore, Plaintiff’s claim against the State of Wisconsin is barred by the
Eleventh Amendment.
Next, Eleventh Amendment immunity extends to state or
governmental entities that are considered “arms of the State.” Will, 491 U.S.
at 70. As a state agency, defendant WDOC enjoys the state’s Eleventh
Amendment immunity from federal lawsuits. Alvarado-Reyes v. Reynolds,
No. 14-CV-101-WMC, 2015 WL 901826, at *2 (W.D. Wis. Mar. 3, 2015); see
also Kroll v. Board of Trustees of Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991).
Like his claim against the State of Wisconsin, Plaintiff’s claim against
WDOC is also barred.
Plaintiff next names as a defendant the “Circuit Court Access
Database,” which he says is also known as “CCAP.” (Docket #1 at 2).
“CCAP” is an acronym for Wisconsin’s Consolidated Court Automation
Programs, “a case management system” that “provides public access online
to reports of activity in Wisconsin circuit courts for those counties that use
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CCAP. Circuit court employees enter all CCAP data in the county where
the case files are located, and the information feeds into the statewide access
system.” State v. Bonds, 717 N.W.2d 133, 138 (Wis. 2006). The Wisconsin
Circuit Court Access website, see https://wcca.wicourts.gov/index.xsl, is the
portal “through which all CCAP reports can be accessed by the public.” Id.
CCAP itself, then, is not a “person” who can be sued under Section
1983; it is a computer system. Even if the Court liberally construes Plaintiff’s
claim as one against the State of Wisconsin, which maintains the CCAP
system, see LeMoine v. Milwaukee County, 132 F. App’x 53, 53–54 (7th Cir.
2005), Plaintiff’s claim cannot survive. As explained above, a claim brought
in federal court against the State of Wisconsin is barred by the Eleventh
Amendment.
The only named defendant not protected by immunity under the
Eleventh Amendment is the Racine County Clerk of Court (the “Clerk”),
but the Plaintiff fails to state a claim against the Clerk under Section 1983.
Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a cause
of action based on personal liability and predicated upon fault; thus,
liability does not attach unless the individual defendant caused or
participated in a constitutional deprivation.”). The only allegation that
arguably involves the Clerk is that there is an error on Plaintiff’s criminal
record, and presumably Plaintiff believes the Clerk had something to do
with causing that error to appear (or remain) on CCAP. At best, these
allegations could form the basis for a negligence or defamation claim, but
such a claim would arise under state, not federal, law. The allegedly
erroneous CCAP entries do not implicate any constitutional protections.
Plaintiff’s remedy for the Clerk’s error, if any, must be pursued in state
court.
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Finally, Plaintiff mentions in his allegations probation agent
Emmerich, but does not name him as a defendant. Even a pro se prisoner’s
complaint must comply with Federal Rule of Civil Procedure 10(a) by
including the names of all parties in the title of the action. Cash v. Marion
County Jail, 211 F. App’x 486, 488 (7th Cir. 2006). “One cannot become a
party without being named and served, and without becoming a party, one
cannot defend.” Id. It appears Plaintiff believes the agent’s false statements
in a court proceeding caused him to be falsely imprisoned. Even if Plaintiff
had named Emmerich as a defendant, Plaintiff cannot seek money damages
against him for an alleged constitutional violation that led to his
incarceration. Heck v. Humphrey bars civil damages actions where a
“judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence.” 512 U.S. 477, 486-87 (1994). To bring such a
claim, Plaintiff must “demonstrate that the conviction or sentence has
already been invalidated.” Id. at 487. Allowing Plaintiff to amend his
complaint to name Emmerich would be purposeless.
Plaintiff has failed to state a claim on which relief can be granted,
and therefore his action must be dismissed. 28 U.S.C. § 1915A(b)(1).
Generally, courts should grant litigants, especially pro se litigants, leave to
amend after dismissal of the first complaint “unless it is certain from the
face of the complaint that any amendment would be futile or otherwise
unwarranted.” Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015)
(emphasis in original). In this case, the Court finds that allowing Plaintiff to
amend his complaint would be futile, because the factual underpinnings of

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Plaintiff’s alleged injuries cannot form the basis of a claim cognizable under
federal law. The Court’s dismissal will therefore be with prejudice.2
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to extend his
deadline to pay the Initial Partial Filing Fee (Docket #8) be and the same is
hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motions for the
appointment of counsel (Docket #6 and #10) be and the same are hereby
DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim;

A few final matters remain for the Court’s attention. First, Plaintiff filed a
motion to extend his deadline to pay the Initial Partial Filing Fee, (Docket #8), but
that motion was received after the Court received Plaintiff’s payment. Plaintiff’s
motion to extend his payment deadline will be denied as moot. Next, Plaintiff
twice requested by motion that he be appointed counsel. (Docket #6 and #10). In
support of his motions, Plaintiff states that he has been unable to secure private
counsel, though he attaches no evidence of his efforts to that end, and that he lacks
knowledge of the law and court policies. Under 28 U.S.C. § 1915(e)(1), the “court
may request an attorney to represent any person unable to afford counsel.” The
Court should seek counsel to represent the plaintiff if the plaintiff: (1) has made
reasonable attempts to secure counsel; and (2) “‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)). Because Plaintiff has not
provided evidence that he has made reasonable attempts to secure counsel, the
Court will deny his motions.
2

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IT IS FURTHER ORDERED that the Clerk of 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 Plaintiff is confined; and
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 20th day of October, 2017.
BY THE COURT:

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

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