Mitchell v. McGinnis
Filing
9
ORDER signed by Judge J.P. Stadtmueller on 12/21/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. CASE DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) fo r failure to state a claim. Clerk of Court DIRECTED to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. Court CERTIFIED 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 Brian DeMarco Mitchell and Sheriff at Outagamie County Jail and to AAG Corey Finkelmeyer) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN DEMARCO MITCHELL,
Plaintiff,
v.
JUDGE MARK J. MCGINNIS,
DANIEL M. MUZA, and
OUTAGAMIE COUNTY,
Case No. 17-CV-1258-JPS
ORDER
Defendants.
Plaintiff Brian DeMarco Mitchell, who is incarcerated at the
Outagamie County Jail, proceeds in this matter pro se. He filed a complaint
alleging that Defendants Outagamie County Circuit Court Judge Mark J.
McGinnis (“Judge McGinnis”) and attorney Daniel M. Muza (“Muza”)
violated his constitutional rights. (Docket #1). Plaintiff subsequently filed
an amended complaint, providing additional factual details to support his
claims. (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). After filing his amended complaint, Plaintiff filed a
supplement to his amended complaint, purporting to add Outagamie
County as a defendant. (Docket #8).
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 $15.80. See 28 U.S.C.
§ 1915(b)(1). His motion to proceed in forma pauperis will, therefore, be
granted.
Next, 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
Page 2 of 9
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.
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 May 9, 2017, the Appleton public defender’s
office appointed Muza to represent Plaintiff in a criminal case pending in
Outagamie County, Case Number 17-CF-59. (Docket #7 at 2). On May 18,
Page 3 of 9
2017, Plaintiff asked Muza to withdraw as his attorney because he believed
Muza had a “conflict.” Id. The next day, Muza informed Plaintiff that he
would withdraw from the case, and Muza faxed to Judge McGinnis a
motion to withdraw and proposed order. Id. Three days later, on May, 22,
2017, Judge McGinnis granted the motion. Id. at 3.
Then, on May 25, 2017, apparently unaware that the motion to
withdraw had been granted, Muza faxed a letter to Judge McGinnis
requesting a hearing on the motion to withdraw. Id. The letter states “[a]s
you know, I presently represent Brian D. Mitchell in the above-captioned
matter.” Id. at 3, see also (Docket #7-1 at 4). Plaintiff contends that Muza
“acted negligently when he failed to inquire with the court or by public
record in regard to his representation status . . . before requesting a motion
hearing[.]” Id. at 3.
A hearing was scheduled for, and took place on, June 6, 2017 in
Outagamie County Circuit Court. Id. at 4. Plaintiff contends he was
damaged as the result of this hearing, which should not have taken place.
Id. Plaintiff alleges that at the hearing, Judge McGinnis and Muza realized
that Muza’s motion for withdrawal had already been granted but continued
with the hearing anyway. Id. Plaintiff states that, as a result, he was not
represented by “effective or legal counsel.” Id. According to Plaintiff, Judge
McGinnis went on to find Plaintiff in contempt of court and imposed on
him a term of six months’ imprisonment and a $5,000 fine “with purge
conditions.” Id. at 4-5. Plaintiff contends that the sanction was “unlawful”
and “excessive,” and that he was sentenced without being afforded legal
counsel. Id. at 5.
Plaintiff served forty-two days in the Outagamie County Jail for
contempt before Judge McGinnis ordered his release due to Plaintiff having
Page 4 of 9
satisfied his purge conditions and “failure to follow statutory procedure
brought to his knowledge by [Plaintiff] and newly appointed counsel Gary
Schmidt on July 17, 2017[.]” Id. Plaintiff states that the sentence imposed on
him should not have exceeded thirty days’ imprisonment and a $500.00
fine. Id. Plaintiff contends that because he served “unlawful days in jail on
the contempt charge,” his Eighth Amendment rights were violated. He
states that he suffered emotional and mental damage as a result. Id. at 5-6.
Finally, Plaintiff alleges that while he was incarcerated at the
Outagamie County Jail, he had a mental and emotional breakdown that
caused him to enter into a physical altercation with his cellmate. Id. at 6.
That altercation led to criminal charges being filed against him. Id. Plaintiff
contends that but for the “unlawful” conduct of Judge McGinnis and Muza,
Plaintiff would not have been incarcerated at the time of the altercation and,
therefore, the altercation would not have happened. Id.
Plaintiff cannot state a viable claim against any of the named
Defendants. First, it has long been established that judges, being sued solely
for judicial acts, are protected by absolute judicial immunity. Mireles v.
Waco, 502 U.S. 9, 11-12 (1991); Forrester v. White, 484 U.S. 219, 225-29 (1988);
Richman v. Sheahan, 270 F.3d 430, 434 (7th Cir. 2001). Without doubt, the
actions of Judge McGinnis that form the basis of Plaintiff’s claim against
him—“hosting a criminal proceeding in which an indigent defendant was
not appointed counsel” and “imposing an excessive sentence,” (Docket #7
at 7)—are judicial acts. Judge McGinnis is thus cloaked with judicial
immunity for each of the actions that Plaintiff invokes as the grounds for
his constitutional claims against him. Under Section 1915A, a claim against
a defendant who is immune from liability for money damages must be
Page 5 of 9
dismissed. Therefore, Plaintiff’s claim against Judge McGinnis must be
dismissed.
Plaintiff’s claim against Muza fares no better. Muza, as a public
defender, may not be sued under Section 1983 for actions undertaken as
part of “a lawyer’s traditional function[] as counsel to a defendant in a
criminal proceeding,” because such an attorney does not act “under color
of state law.” Polk County v. Dodson, 454 U.S. 312, 324-25 (1981). The acts that
form the basis of Plaintiff’s claim against Muza—filing a motion at
Plaintiff’s request, attending a hearing on that motion, and “failing to object
to continuation” of the hearing after learning his withdrawal motion had
been granted—fall squarely within the traditional function of a lawyer.
Muza, therefore, is not amenable to suit under Section 1983, and Plaintiff
may not maintain a constitutional claim against him. Plaintiff’s claim
against Muza must also be dismissed.
If Plaintiff intended to bring a state law legal malpractice claim
against Muza, the Court will not consider it in this case. See 28 U.S.C. §
1367(c)(3) (court may decline to exercise supplemental jurisdiction when it
has “dismissed all claims over which it has original jurisdiction”); see also
Ross ex rel. Ross v. Bd. of Educ. of Tp. High School Dist. 211, 486 F.3d 279, 285
(7th Cir. 2007) (affirming district court’s declination to exercise
supplemental jurisdiction over state law claims after “federal claims were
dismissed at such an early stage on a purely legal ground”).
Finally, Plaintiff also fails to state a claim against Outagamie County.
A municipal entity may not be held liable pursuant to Section 1983 solely
because it employed a constitutional tortfeasor. See Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 691 (1978) (holding that liability
pursuant to the doctrine of respondeat superior is unavailable under Section
Page 6 of 9
1983). Rather, a municipality can “be held liable under § 1983 only for its
own violations of federal law.” Los Angeles County, Cal. v. Humphries, 562
U.S. 29, 36 (2010) (citing Monell, 436 U.S. at 694). To invoke Monell liability,
Plaintiff must demonstrate that there was an “official policy, widespread
custom, or action by an official with policy-making authority [that] was the
‘moving force’ behind his constitutional injury.” Daniel v. Cook County, 833
F.3d 728, 734 (7th Cir. 2016) (quotation omitted).
Plaintiff seeks to hold Outagamie County liable for the actions of
Judge McGinnis as a “decision-maker” of the county. (Docket #8 at 2). He
states that the “exact relief requested and sought from Mark J. McGinnis in
this action shall be identical as sought from Outagamie County.” Id. In other
words, Plaintiff seeks to hold Outagamie County liable for the single
decision of Judge McGinnis to impose contempt sanctions on Plaintiff
during a criminal proceeding in which, Plaintiff contends, he was not
effectively represented by counsel.
Plaintiff’s claim cannot proceed because Judge McGinnis is not an
official with policy-making authority for purposes of Monell liability. “In
order to have final policymaking authority, an official must possess
responsibility for making law or setting policy, that is, authority to adopt
rules for the conduct of government.” Killinger v. Johnson, 389 F.3d 765, 771
(7th Cir. 2004) (quotation and internal marks omitted). Judge McGinnis has
no such authority. He did not make the law Plaintiff was accused of
violating that led to the contempt sanctions Judge McGinnis imposed. Nor
did he draft the state law that prescribes possible sanctions for contempt.
Judge McGinnis also did not make the rules of procedure that Plaintiff
claims should have prevented his attorney, having withdrawn from the
case, from noticing a motion hearing and representing Plaintiff at that
Page 7 of 9
hearing. Plaintiff alleges only that Judge McGinnis misapplied the law in
his criminal case; that is not sufficient to confer municipal liability on
Outagamie County.
Because the Defendants named herein are not amenable to a suit for
damages under Section 1983, the defects in Plaintiff’s claims cannot be
cured by permitting him to amend his complaint. Leave to amend need not
be granted before dismissal where such amendment would be futile. See
Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013). 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
Page 8 of 9
shall forward a copy of this Order along with Plaintiff’s remaining balance
to the receiving institution;
IT IS FURTHER ORDERED that copies of this order be sent to the
officer in charge of the agency where Plaintiff is confined and to Corey F.
Finkelmeyer, Assistant Attorney General, Wisconsin Department of
Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857; 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 21st day of December, 2017.
BY THE COURT:
_____________________________
J. P. Stadtmueller
U.S. District Judge
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?