Wallace v. Roesler

Filing 9

SCREENING ORDER signed by Judge J.P. Stadtmueller on 10/30/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DISMISSING CASE with prejudice pursuant to 28 U.S.C.§§ 1915(e)(2)(B) and 1915 A(b)(1) for failure to state a claim; DIRECTING Clerk of Court to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g); ORDERING agency having custody of Plaintiff to collect balance of filing fee in accordance w ith this Order; 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. See Order. (cc: all counsel; via mail to Lamont E. Wallace and Warden at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LAMONT E. WALLACE,

v.

Plaintiff,

Case No. 17-CV-671-JPS

LINDA A. ROESLER,
Defendant.

ORDER

Plaintiff Lamont E. Wallace, who is incarcerated at Green Bay
Correctional Institution, proceeds in this matter pro se. He filed a complaint
alleging that Defendant violated his constitutional rights. (Docket #1).
Plaintiff subsequently filed an amended complaint, modifying slightly his
allegations against Defendant. (Docket #7). The amended complaint
supersedes the first complaint and is the governing pleading in this case.
See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). This matter comes
before the court on Plaintiff’s petition to proceed without prepayment of
the filing fee (in forma pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $1.38. 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

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted); Christopher, 384 F.3d at 881.
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 August 9, 2015, he was taken into custody at
the Milwaukee Secure Detention Facility, presumably by request of
Defendant, a “probation and parole supervisor.” (Docket #7 at 2). Plaintiff
complained that his detention was illegal because Defendant had failed to
sign the written order directing that he be taken into custody. Id. Three days
later, Defendant signed the order. Id. at 2-3. However, in retaliation for
Plaintiff having complained about the unsigned order, Defendant altered
her order to include new, more severe, reasons for detaining him, including
that he was dangerous. Id. at 3. Plaintiff states that these changes led “to
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him receiving the maximum time available for reconfinement[,]” on parole
revocation. Id. Plaintiff brings three claims based on these facts: false
imprisonment for the time he spent in custody without an authenticated
custody order; retaliation for exercising his First Amendment right to lodge
a complaint about Defendant; and violation of his Fourteenth Amendment
Due Process rights based on Defendant’s “arbitrary” modification to her
custody order. Id. Plaintiff seeks compensatory and punitive damages
totaling $50,000.00. Id. at 4.
Plaintiff cannot proceed on his claims against Defendant because she
is protected by absolute quasi-judicial immunity. Absolute immunity for
judicial acts was recognized at common law “as a device for discouraging
collateral attacks and thereby helping to establish appellate procedures as
the standard system for correcting judicial error and to protect judicial
independence by insulating judges from vexatious actions prosecuted by
disgruntled litigants.” Richman v. Sheahan, 270 F.3d 430, 434–35 (7th Cir.
2001) (quotation and internal punctuation omitted). Importantly for this
case, the absolute immunity afforded to judges also applies to the “quasijudicial conduct” of non-judicial officials “whose official duties have an
integral relationship with the judicial process.” Id. at 435.
The Seventh Circuit applies a “functional approach” to determine
whether a government official is entitled to absolute immunity. Wilson v.
Kelkhoff, 86 F.3d 1438, 1443 (7th Cir. 1996). That is, courts look to the “nature
of the function performed, not the identity of the actor who performed it”
when deciding whether absolute immunity is appropriate. Id. Under the
functional approach, both a judge performing “truly judicial acts” as well
as officials performing “functionally comparable” acts in other contexts are

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accorded absolute immunity. Id. (citing Forrester v. White, 484 U.S. 219, 229
(1988); Butz v. Economou, 438 U.S. 478, 512 (1978)).
The decisions of parole board members to grant, deny, or revoke
parole are absolutely immune from damages liability. Walrath v. United
States, 35 F.3d 277, 281 (1994). In addition, activities that are “inexorably
connected with the execution of parole revocation procedures and are
analogous to judicial action” are also entitled to absolute immunity. Id. at
282 (citation omitted). For example, the Seventh Circuit affirmed
application of absolute immunity for a senior case analyst employed by the
United State Parole Commission who was accused of issuing an arrest
warrant for a parole revocation without probable cause. Walrath, 35 F.3d at
282. In finding that the analyst was entitled to absolute immunity, the court
noted that the issuing of an arrest warrant for a parole violation has many
judicial characteristics: “it involves the exercise of discretion in applying the
law to the facts of a particular case, poses a heightened risk of vexatious
litigation, and is open to correction through ordinary mechanisms of
review.” Id.; see also Smith v. Gomez, 550 F.3d 613, 619 (7th Cir. 2008)
(affirming application of immunity for a parole agent who placed a “parole
hold” on the plaintiff and recommended revocation for violating a
condition of his parole).
Defendant’s alleged actions in this case fall squarely within the class
of conduct for which absolute immunity is provided. Defendant’s actions
are nearly identical to those of the senior case analyst in Walrath who, upon
learning from a probation officer that the plaintiff had violated a condition
of his probation, caused a warrant to issue for the plaintiff’s arrest. Walrath,
35 F.3d at 279. Similarly here, Plaintiff alleges that Defendant, a parole
supervisor, issued an order that caused him to be taken into custody and
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then revised that order to include additional bases for the revocation of his
parole. As the Seventh Circuit noted in Walrath, the “discretionary
decision” of a supervisory parole officer “that there [is] probable cause to
believe that [the plaintiff] had violated his parole” is quasi-judicial, and
therefore immune from suit. Id. at 282. Plaintiff cannot recover damages
from Defendant for her decision to have him taken into custody for parole
violations, regardless of whether Plaintiff believes her reasons were
unfounded or exaggerated. Any error in Defendant’s order was correctable
by the state’s appellate procedures. See Richman, 270 F.3d at 434–35.1
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
Plaintiff’s alleged injuries stemming from Defendant’s conduct cannot form

Even apart from the issue of immunity, Plaintiff’s claims also appear to be
barred for an independent reason. The Seventh Circuit’s decision in 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). In other words, a plaintiff cannot seek money damages for an
alleged constitutional violation that led to his incarceration. To bring such a claim,
Plaintiff must “demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. Plaintiff has not alleged that his incarceration stemming
from Defendant’s custody order has since been invalidated. His damages claims,
success on which would imply that his initial detention and his subsequent
sentence are invalid, are therefore barred. The Court need not reach this
conclusion, however, as dismissal is appropriate based on the immunity issue
explained herein.
1

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the basis of a claim for damages; Defendant is entitled to immunity for the
function she performed in the course of Plaintiff’s parole revocation. The
Court’s dismissal will therefore be with prejudice.
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 this action be and the same is
hereby DISMISSED with prejudice 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 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

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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 October, 2017.
BY THE COURT:

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

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