Mineau v. Van Hecke et al

Filing 9

ORDER signed by Chief Judge William C Griesbach on 10/20/17 granting 2 Motion for Leave to Proceed in forma pauperis. The action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim and as fri volous. The Clerk of Court is to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). The Clerk of Court is to enter judgment. (cc: all counsel and via US Mail to Terrance Mineau, Warden and Corey F. Finkelmeyer) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TERRANCE MINEAU,
Plaintiff,
v.

Case No. 17-C-1305

JEREMIAH VAN HECKE, et al.,
Defendant.

SCREENING ORDER

Plaintiff Terrance Mineau, who is incarcerated at Waupun Correctional Institution, filed a
pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court on the plaintiff’s petition for leave to proceed without prepaying the full filing
fee.
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Plaintiff has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing fee of his complaint, as required under 28
U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $1.41. Plaintiff’s
motion to proceed in forma pauperis will be granted.
The court is required 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 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. 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).
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). The complaint must contain sufficient factual matter “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court accepts
the factual allegations as true and liberally construes them in the plaintiff’s favor. Turley v. Rednour,
729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).
Mineau’s complaint arises from an ultimately denied motion to recuse that Mineau filed with
Judge McGinnis in his Wisconsin criminal case 2012-CF-773. Mineau alleges that he filed a motion
for recusal with Judge McGinnis and that at the final conference hearing for that case Judge
McGinnis stated that he referred the motion for recusal to Jeremiah Van Hecke, the executive
director of the Wisconsin Judicial Commission.1 Van Hecke responded to Judge McGinnis’s referral.
Judge McGinnis subsequently denied Mineau’s motion for recusal. Mineau alleges that the

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The Wisconsin Judicial Commission is tasked to monitor judicial conduct and “invites
judges who seek informal guidance on contemplated conduct . . . to contact its executive director.”
S ee Wi sco n si n Ju d i ci a l Co m m i ssi on, Wisco nsin Co u r t S yst em,
https://www.wicourts.gov/courts/committees/judicialcommission/index.htm.
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communication between Judge McGinnis and Van Hecke “led directly to [his] current conviction.2”
ECF No. 1 at 3.
Additionally Mineau alleges that prior to the denial of his motion to recuse, he filed a
complaint with the Wisconsin Judicial Commission alleging improper and prejudicial comments by
Judge McGinnis. Mineau states that the Commission denied his claims on June 29, 2017. As relief,
Mineau demands “monetary damages for using confidential information, which led up to my
conviction of 8 years.” Id. at 5. Mineau argues that this was a violation of his due process rights.
This plaintiff has provided no arguable basis for relief, having failed to make any rational
argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir.
1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)). Reading Mineau’s complaint liberally, as I must do at this stage
of the proceedings, he seeks to bring a claim for violation of his constitutional due process rights
under 42 U.S.C. § 1983 for the denial of his motion for recusal.
However, Mineau’s entire complaint is barred by the doctrine of Heck v. Humphries, 512
U.S. 477 (1994). Under Heck, a “convicted criminal who brings a civil rights suit that if successful
would demonstrate the invalidity of his conviction must show that the conviction has been
invalidated.” Id. at 487 (emphasis added); see also McCurdy v. Sheriff of Madison Cty., 128 F.3d

2

The court takes judicial notice that Mineau pled guilty in his previous criminal case, 2012CF-773. State v. Mineau, No. 2012CF773 (Brown Cty. Cir. Ct.); see GE Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080 81 (7th Cir. 1997) (explaining that a district court may take
judicial notice of matters of public record). He was not convicted by the judge, as his allegations
imply. However, he analysis of Mineau’s current complaint does not change regardless of whether
he was convicted or whether he pled guilty.
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1144 (7th Cir. 1997). However, Mineau has not alleged that his conviction has been invalidated.3
Because Mineau’s success in this case would implicitly invalidate his state court conviction, he
cannot proceed unless he shows that his conviction has already been invalidated.
However, even if Mineau’s claims were not barred by the Heck doctrine, Mineau fails to state
a claim against any of the defendants. See Polzin v. Gage, 636 F.3d 834, 837 38 (7th Cir. 2011)
(holding that a district court may bypass Heck and address the merits of the case). Mineau cannot
bring a claim against Judge McGinnis for the results of his criminal conviction. Judicial immunity
provides judges absolute immunity from their judicial acts, even if they act maliciously or corruptly.
Mireles v. Waco, 502 U.S. 9 (1991). This immunity is not for the protection or benefit of a corrupt
or malicious judge, but rather for the benefit of the public, which has as interest in having a judiciary
that is free to exercise its judicial functions without the fear of harassment by unsatisfied litigants.
Pierson v. Ray, 386 U.S. 547, 554 (1967). Therefore, Judge McGinnis has absolute judicial
immunity for the judicial actions he took and his ultimate decision in the denial of Mineau’s motion
for recusal.
Additionally, any claim against Van Hecke for his investigation of Mineau’s complaint about
Judge McGinnis is also protected by quasi-judicial immunity. See Tocholke v. Wagner, No. 07-C0831, 2008 WL 302369, at *3 (E.D. Wis. 2008) (citing Kissell v. Breskow, 579 F.2d 425, 430 (7th
Cir. 1978)) (explaining that the executive director of the Wisconsin Judicial Commission has quasijudicial immunity for his investigations into attorneys and judges). Likewise, any claim against Van

3

Rather, it appears that Mineau’s conviction is still on appeal. State v. Mineau, No.
2012CF773 (Brown Cty. Cir. Ct.).
4

Hecke for information he sent to Judge McGinnis in response to Judge McGinnis’s referral of
Mineau’s motion for recusal is protected by quasi-judicial immunity. Id.
Lastly, Mineau cannot bring a claim against the Wisconsin Judicial Commission because it
is a state agency and not a “person” within the meaning of 42 U.S.C. § 1983 and is otherwise entitled
to Eleventh Amendment immunity. See Will v. Mich. Dep’t. of State Police, 491 U.S. 58 (1989);
see also Thomas v. Illinois, 697 F.3d 612, 613 14 (7th Cir. 2013).
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim and as frivolous. See Moore
v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997) (explaining that a complaint barred by Heck is
considered legally frivolous and counts as strike).
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 the prisoner shall collect
from his institution trust account the $348.59 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 payments shall be clearly identified by the case name and number assigned to this action. If the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
Order along with plaintiff’s remaining balance to the receiving institution.

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IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the officer in charge of the
agency where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney General,
Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
SO ORDERED this

20th

day of October, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

This order and the judgment to follow are final. The plaintiff 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. App. P. 3, 4. This court may extend this deadline if a party timely 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). If the plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If the plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If the plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
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.
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 judgment. The court cannot extend these deadlines. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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