Strong v. Corrigan et al

Filing 15

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 5/8/2018. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; agency having custody of plaintiff shall collect $350 balance of filing fee from his prison trust account under 28 USC §1915(b)(2). Case DISMISSED without prejudice because 42 USC §1983 is not the proper vehicle for plaintiff to challenge validity of revocation of probation. (cc: all counsel, via mail to Dennis Strong and Warden at Dodge Correctional Institution; Corey Finkelmeyer-Asst. Atty. General)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS STRONG,
Plaintiff,
v.

Case No. 17-cv-1063-pp

CHAD CORRIGAN and
STATE OF WISCONSIN DOC,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING
COMPLAINT, AND DISMISSING CASE WITHOUT PREJUDICE
______________________________________________________________________________
Plaintiff Dennis Strong, who is confined at the Dodge Correctional
Institution, is representing himself. The plaintiff’s complaint alleges that
defendant Probation Agent Chad Corrigan created a revocation summary based
in part on false information. Dkt. No. 1. This order resolves the plaintiff’s
motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and
screens the plaintiff’s complaint.
A.

Application to Proceed without Prepaying the Filing Fee (Dkt. No. 2)
The Prison Litigation Reform Act applies to this case because the plaintiff

is incarcerated. 28 U.S.C. §1915. The law allows a court to give an incarcerated
plaintiff the ability to proceed with his lawsuit without pre-paying the civil
case-filing fee, as long as he meets certain conditions. Id. One of those
conditions is a requirement that the plaintiff pay an initial partial filing fee. 28
U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court
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may allow the plaintiff to pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
On August 7, 2017, the court issued an order finding that the plaintiff
lacked the funds to pay an initial partial filing fee, and waiving that fee under
28 U.S.C. §1915(b)(4). Dkt. No. 5. The court’s August 7, 2017 order also gave
the plaintiff an opportunity to voluntarily dismiss this case, to avoid incurring
a “strike. The plaintiff has not filed a motion to voluntarily dismiss the case.
The court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filling fee, and will allow the plaintiff to pay the $350.00
filing fee over time from his prisoner account, as described at the end of this
order.
B.

SCREENING OF PLAINTIFF’S COMPLAINT
1.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts to screen
complaints brought by prisoners seeking relief against a governmental entity,
or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). A court
may dismiss a case, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(B).
To state a claim under the federal notice pleading system, a plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead specific
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facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of a complaint must allow a court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, a court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions that are not supported by facts “are not
entitled to the assumption of truth.” Id. Second, a court determines whether
the well-pleaded factual allegations “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
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du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S.
635, 640 (1980). A court gives pro se allegations, “however inartfully pleaded,”
a liberal construction. See Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)).
B.

Facts Alleged in the Complaint

The plaintiff alleges that in June 2017, defendant Agent Corrigan created
and distributed a revocation summary for Outagamie County Case Number 11CF-05, based in part on disingenuous, misleading, and false information. Dkt.
No. 1 at 3, 5. The plaintiff attached the Revocation Summary to his complaint.
Dkt. No. 1-1. The document indicates that defendant Corrigan recommended
revocation of the plaintiff’s probation based on allegations that the plaintiff
violated the rules of his probation. Id. at 1, 6. The revocation summary also
states that the plaintiff was placed in custody on the revocation on March 21,
2017, and that defendant Corrigan recommended a sentence of twelve months
confinement in jail, nine months confinement in jail to run concurrent with the
twelve months, three years in Wisconsin state prison and two years of extended
supervision. Id. at 6.
Agent Corrigan allegedly knew that the revocation summary, including
issues listed in the “Violations Statement,” contained false and inflammatory
information “in a willful and wanton attempt to violate Mr. Strong’s right to the
rudiments of fair play in a revocation proceeding as well [as] to be sentenced
after revocation by the court based on accurate information.” Dkt. No. 1 at 5;
Dkt. No. 1-1 at 1. The plaintiff alleges that his “primary concern to this cause
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of action is the lack of remedy/due process available to have equal opportunity
to address the secondary and underlying cause of action.” Dkt. No. 1 at 6. For
relief, the plaintiff seeks $1.00 damages, unspecified injunctive relief and any
relief deemed just and proper. Id. at 8.
C.

Discussion

The plaintiff challenges the validity of the revocation of his probation.
Under 42 U.S.C. §1983, a plaintiff cannot raise causes of action that question
conditions of probation, or that necessarily imply the invalidity of a probation
revocation unless he first succeeds in a habeas corpus proceeding challenging
the probation conditions or revocation proceedings. Heck v. Humphrey, 512
U.S. 477, 487 (1994); Spencer v. Kemna, 523 U.S. 1, 17 (1998) (application of
Heck to parole revocation hearing); Williams v. Wisconsin, 336 F.3d 576, 579580 (7th Cir. 2003) (conditions of parole define perimeters of confinement and
therefore challenge to restrictions imposed by parole should be brought as writ
of habeas corpus, not under §1983) (quoting Drollinger v. Milligan, 552 F.2d
1220 (7th Cir. 1977)). The plaintiff has not filed a habeas corpus petition; he
has sued the probation agent under 42 U.S.C. §1983. He has not provided the
court with any information to show that he previously filed—and was
successful in—a habeas corpus petition challenging the conditions of his
probation, or his revocation. The court cannot allow the plaintiff to proceed
under §1983.
Nor can this court convert the case into a habeas corpus petition under
28 U.S.C. §2254 on its own motion. “When a plaintiff files a §1983 action that
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cannot be resolved without inquiring into the validity of confinement, the court
should dismiss the suit without prejudice,” rather than convert it into a
petition for habeas corpus. Copus v. City of Edgerton, 96 F.3d 1038, 1039 (7th
Cir. 1996) (citing Heck, 512 U.S. 477).
The court will dismiss the plaintiff’s due process claim without prejudice.
The plaintiff may raise his claims in a petition for a writ of habeas corpus. He
should be aware, however, that a federal court will not allow him to proceed on
a habeas corpus petition unless he can show that he has presented his claims
to the Wisconsin courts and has been denied relief at the trial and appellate
levels, 28 U.S.C. §2254(b)(1)(A), or that there is no state corrective process
available to him, §2254(b)(1)(B).
C.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2
The court DISMISSES this case without prejudice.
The court ORDERS that the agency having custody of the prisoner shall
collect from his institution trust account the $350.00 filing fee by collecting
monthly payments from the plaintiff’s prison trust account in an amount equal
to 20% of the preceding month’s income credited to the prisoner’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
agency shall clearly identify the payments by the case name and number. If the
plaintiff transfers to another institution—county, state or federal—the
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transferring institution shall forward a copy of this order, along with plaintiff's
remaining balance, to the receiving institution.
The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined—the Dodge County Correctional
Institution.
The court will also send a copy of this order be sent to Corey F.
Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice,
P.O. Box 7857, Madison, Wisconsin, 53707-7857.
Dated in Milwaukee, Wisconsin this 8th day of May, 2018.
BY THE COURT:

________________________________________
HON. PAMELA PEPPER
United States District Judge

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