Strong v. Wisconsin State Public Defender et al

Filing 7

SCREENING ORDER signed by Judge J.P. Stadtmueller on 10/18/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Wisconsin State Public Defender and Jon Padgham DISMISSED from action. Plain tiff's Complaint and this Order to be electronically SENT to Wisconsin DOJ for service on Defendant Kelli S. Thompson, who shall file a responsive pleading within 60 days. Parties may not begin discovery until the Court enters a scheduling order . Agency having custody of Plaintiff to COLLECT balance of the filing fee in accordance with this Order. Case REFERRED back to Magistrate Judge Nancy Joseph for further proceedings. See Order. (cc: all counsel, via mail to Dennis Strong and Sheriff at Outagamie County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DENNIS STRONG,

v.

Plaintiff,

Case No. 17-CV-981-NJ-JPS

WISCONSIN STATE PUBLIC
DEFENDER, KELLI S. THOMPSON,
and JON PADGHAM,

ORDER

Defendants.
Plaintiff Dennis Strong, who is incarcerated at the Outagamie
County Jail, proceeds in this matter pro se. He filed a complaint alleging
that the defendants violated his constitutional rights. (Docket #1). This
case is currently assigned to Magistrate Judge Nancy Joseph. However,
because not all parties have had the opportunity to consent to magistrate
judge jurisdiction, the case was randomly referred to a U.S. District Court
judge for the limited purpose of screening the complaint. The case will be
returned to Magistrate Judge Joseph after entry of this order.
The Prison Litigation Reform Act (PLRA) gives courts discretion to
allow a prisoner to proceed with their lawsuits without prepaying the
$350 filing fee if the prisoner complies with certain requirements. 28
U.S.C. § 1915. One of those requirements is that the prisoner pay an initial
partial filing fee; however, on July 24, 2017, Judge Joseph determined that
Plaintiff was not required to pay the fee because he has neither the assets
nor the means to do so. Accordingly, the Court will grant Plaintiff’s
motion to proceed without prepayment of the full filing fee. He is

required to pay the $350 fee over time in the manner explained at the end
of this order.
Next, the Court must 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).
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 Atl. 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).
To proceed 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 defendant was acting under color of state law. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court gives 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)).
Plaintiff alleges that, as a result of systemic deficiencies at the
Wisconsin State Public Defender’s Office, Defendants failed to timely
secure counsel for him. (Docket #1 at 2.) Plaintiff asserts that he invoked
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his right to a speedy trial but, because Defendants failed to provide him
with counsel as he requested, he was required to proceed pro se.1 (Id.)
The Court of Appeals for the Ninth Circuit recently held that
plaintiffs facing similar delays could state a Sixth Amendment claim. See
Farrow v. Lipetzky, 637 Fed. Appx. 986 (9th Cir. 2016). The Court of
Appeals explained that, “[t]he Sixth Amendment requires that counsel ‘be
appointed within a reasonable time after attachment to allow for adequate
representation at any critical stage before trial, as well as at trial itself.’” Id.
at 988 (citing Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008)). The
Court of Appeals explained that the question raised by this standard is:
“[H]ow soon after the Sixth Amendment right attaches must counsel be
appointed, and at what point does delay become constitutionally
significant?” Id.
Although it may be that the delay plaintiff experienced is not
constitutionally significant, the Court cannot make that determination
based only on the allegations before it. As such, the Court will allow the
plaintiff to proceed with a Sixth Amendment claim.
Plaintiff may not, however, proceed with his claim against all of the
defendants he names, nor may he obtain all of the relief he requests. The
Wisconsin State Public Defender’s Office is a state entity and is not suable
under 42 U.S.C. § 1983 because it is not a “person” within the meaning of
that statute. Will v. Mich. Dept. of State Police, 491 U.S. 58, 70 (1989). The

According to Wisconsin court records, a criminal complaint was filed
against Plaintiff in Outagamie County on March 22, 2017. Plaintiff was
represented by counsel from on or around March 24 to May 30, 2017, and from
on or around July 24 to July 31, 2017, but counsel in each of those periods
ultimately withdrew. Plaintiff is currently represented; his attorney entered his
appearance on August 1, 2017. See wcca.wicourts.gov, case details for Outagamie
County Case No. 2017CM282.
1

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Court will dismiss the Wisconsin State Public Defender’s Office as a
defendant.
Plaintiff also names Kelli S. Thompson, the Wisconsin state public
defender, and Jon Padgham, the managing attorney. He sues them as
representatives of the Wisconsin State Public Defender’s Office. In other
words, he does not allege that they personally violated his constitutional
rights, but rather, that they (and other public defenders) implemented the
allegedly unconstitutional policy or custom of the Wisconsin State Public
Defender’s Office. As such, Plaintiff may proceed only on an officialcapacity claim and not a personal-capacity claim. See Hill v. Shelander, 924
F.2d 1370, 1372 (7th Cir. 1991). Because an official-capacity claim is really a
suit against the government entity itself, it is unnecessary for Plaintiff to
proceed against both Thompson and Padgham. The Court will dismiss
Padgham as a defendant.
Finally, because Plaintiff’s suit is to be treated as a case against the
government entity, any relief sought would have to be satisfied by looking
to the government entity rather than to Thompson. See Brunken v. Lance,
807 F.2d 1325, 1328-29 (7th Cir. 1986). Under those circumstances, the
Eleventh Amendment bars an action for money damages; however, it does
not bar a plaintiff from seeking injunctive or declaratory relief “against a
state official ‘to conform [his] future conduct to the requirement of federal
law.’” Id.
Plaintiff seeks monetary damages of only $1.00 (Docket #1 at 4); he
is not entitled to this relief. Plaintiff does not seek injunctive relief;
however, he does seek “a sanction by the court . . . for the systemic
deficiencies within the state agency. . . .” Id. The Court will broadly
construe this request as one for declaratory relief.
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Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed
without prepayment of the filing fee (Docket #2) is GRANTED;
IT IS FURTHER ORDERED that Defendants Wisconsin State
Public Defender and Jon Padgham be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this order are being electronically sent
today to the Wisconsin Department of Justice for service on Defendant
Kelli S. Thompson;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendant Kelli S. Thompson shall file a responsive pleading to the
complaint within sixty (60) days of receiving electronic notice of this
order;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the Court enters a scheduling order setting deadlines
for discovery and dispositive motions;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $350 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
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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;
IT IS FURTHER ORDERED that this case be referred back to the
United States Magistrate Judge assigned to this case for further
proceedings;
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. In
addition, the parties must notify the Clerk of Court of any change of
address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 18th day of October, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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