Kyles v. Liegeois et al

Filing 10

ORDER signed by Judge Pamela Pepper on 10/27/17 denying as moot plaintiff's Motion for Extension of Time 7 ; denying as moot and frivolous plaintiff's Motion to Add Party 8 ; granting plaintiff's Motion for Leave to Proceed Without P repayment of the Filing Fee 2 ; Screening the Complaint 1 , and Dismissing Case for failure to state a claim; clerk of court to document that inmate has incurred a "strike" under 28 U.S.C. §1915(g). Agency having custody of plaintiff to collect $347.23 balance of filing fee from his prison trust account in accordance with 28 U.S.C. §1915(b)(2). (cc: all counsel, via mail to Elliot G. Kyles and Warden of Brown County Jail) (kwb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ELLIOTT G. KYLES,
Plaintiff,
v.

Case No. 17-cv-1100-pp

BEAU LIEGEOIS, and
TIMOTHY A. HINKFUSS,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 2), DENYING AS MOOT MOTION FOR EXTENSION OF TIME
(DKT. NO. 7), DENYING AS MOOT MOTION TO ADD PARTY (DKT. NO. 8),
SCREENING THE COMPLAINT (DKT. NO. 1), AND DISMISSING CASE
______________________________________________________________________________
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. Under
that law, the court must screen a plaintiff’s complaint to determine whether the
plaintiff states claims with which he may proceed. This decision will resolve the
plaintiff’s motion for leave to proceed without prepayment of the filing fee and
screen the complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The PLRA allows a court to give an incarcerated plaintiff the ability to

proceed with his lawsuit without prepaying the case filing fee, as long as he
meets certain conditions. One of those conditions is that the plaintiff must pay
an initial partial filing fee. 28 U.S.C. §1915(b).

On August 10, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $2.77 by August 31, 2017. Dkt. No. 4. On August 21, 2017,
the plaintiff filed a motion asking for additional time to pay the fee. Dkt. No. 7.
The plaintiff paid the fee on August 28, 2017, three days before the original
deadline, so no extension of the deadline was necessary. The court will deny as
moot the plaintiff’s motion for an extension of time, and will grant his motion to
proceed without prepayment of the filing fee. The court will order the plaintiff to
pay the remainder of the filing fee over time in the manner explained at the end
of this decision.
II.

Screening the Plaintiff’s Complaint
The law requires the court 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). The court must dismiss a complaint
if the plaintiff raises claims that are legally frivolous, 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. 28 U.S.C. §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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895,
900 (7th Cir. 1997). 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.

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A.

The Plaintiff’s Allegations

The complaint indicates that the plaintiff objects to the State of
Wisconsin’s jurisdiction to bring a criminal case against him. Dkt. No. 1 at 3.
He argues that, in order for a crime to exist, there must be an injured party; he
argues that the State of Wisconsin cannot be that injured party because it is a
sub-corporation of the United States. Id. at 3-4. He argues that defendant Beau
G. Liegeois, the Assistant Brown County District Attorney who is prosecuting
the case on behalf of the District Attorney’s Office, committed fraud by
charging him, and that defendant Timothy Hinkfuss, the Brown County Circuit
Court judge who is presiding over the case, committed fraud by presiding over
the criminal case. Id. at 4-6; see also, Wisconsin Court System Circuit Court
Access, www.wcca.wicourts.gov, Brown County Case No. 2015CF1801.
B.

The Court’s Analysis

The online docket system for the Wisconsin Circuit Courts indicates that
the plaintiff has been charged in Brown County Circuit Court with one count of
possession with intent to distribute heroin, one count of possession with intent
to distribute cocaine, one count of possession of narcotics with intent to
deliver, and one count of being a felon in possession of a firearm. Wisconsin
Court System Circuit Court Access, www.wcca.wicourts.gov, Brown County
Case No. 2015CF1801. His trial is scheduled for November 8, 2017 at 8:15
a.m.
The plaintiff’s assertion that the State of Wisconsin is without authority
to bring criminal charges against individuals is legally frivolous. Wisconsin

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Statutes §939.03(1) states that, “A person is subject to prosecution and
punishment under the law of this state if . . . [t]he person commits a crime, any
of the constituent elements of which takes place in the state.” Wis. Stat.
§968.02(1) empowers district attorneys to file a complaint charging a person
with an offense, and §967.05 makes clear that any powers or duties imposed
upon district attorneys may be performed by their deputies or assistants. After
a complaint is issued, §968.02(2) requires the district attorney to file the
complaint with a judge, who either will issue a warrant or summons or dismiss
the complaint. Wisconsin law clearly authorizes Liegeois to file criminal
complaints against individuals and Judge Hinkfuss to preside over cases that
those criminal complaints set in motion.
In support of his argument that a crime cannot exist without an injury,
the plaintiff cites “Sherer v. Cullen, 481 F. 945.” Dkt. No. 1 at 3. He appears to
mean Sherar v. Cullen, 481 F.2d 945 (9th Cir. 1973). That case involves a civil
lawsuit by an employee who was fired by the Internal Revenue Service. The
case says nothing about crimes, and as a decision of the Ninth Circuit, it is not
binding on this court. He also refers to 28 U.S.C. §3002(15)(A) (which states
that, for the purposes of the procedures to recover judgments or obtain
judgments against the United States, the definition of “United States” includes
federal corporations, agencies, departments, commissions, boards, or
instrumentalities); a case he refers to as William Dixon v. The United States, 1
Marsh 117, 181 (1811) (which the court cannot locate, because “1 Marsh” is
not the volume of the Supreme Court reporter, but a reference to the reporter’s
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editor); the Eleventh Amendment (which immunizes states from civil suits by
citizens of another state or citizens of a foreign state); 28 U.S.C. §1330.2 (which
does not exist, although 28 U.S.C. §1330 gives district courts jurisdiction in
civil actions brought against foreign states under certain circumstances); 8
U.S.C. §1481 (which describes how someone born in the United States can lost
his or her nationality); the Judiciary Act of 1789 and Article III, Section 2 of the
Constitution (which describes the judicial authority of federal courts). None of
these sources says that a state does not have jurisdiction to prosecute crimes.
The natural consequence of the plaintiff’s argument would be to nullify
state criminal legal systems. That proposition has no arguable basis in law.
The plaintiff recently has filed a motion seeking to add the state of
Wisconsin as a defendant. Dkt. No. 8. The court will deny this motion—not
only is it moot, but “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another State.”
Edelman v. Jordan, 415 U.S. 651, 662-62 (1974).
The court will dismiss the plaintiff’s claim as frivolous.
III.

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

prepayment of the filing fee. Dkt. No. 2.
The court DENIES AS MOOT the plaintiff’s motion for an extension of
time. Dkt. No. 7.
The court DENIES AS MOOT AND FRIVOLOUS the plaintiff’s motion to
add a party. Dkt. No. 8.
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The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $347.23 balance of the 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 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.
The court will mail a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that this case is DISMISSED under 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) as frivolous.
The court ORDERS that the Clerk of Court shall document that this
inmate has incurred a “strike” under 28 U.S.C. §1915(g).
The court will mail a copy of this order to Corey F. Finkelmeyer,
Assistant Attorney General, Wisconsin Department of Justice, P.O. Box 7857,
Madison, Wisconsin, 53707-7857.
This order and the judgment to follow are final. A dissatisfied party 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. of App. P. 3, 4. This court may extend this deadline if a party timely
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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).
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. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
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 the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 27th day of October, 2017.

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