Schroeder v. Malone et al

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 1/12/2018. 5 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 3 Plaintiff's Motion to Appoint Counsel DENIED as moot. Action DISMISSED without prejudice as not ripe for adjudication. Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Ronald Schroeder and Sheriff at Waukesha County Jail) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONALD SCHROEDER,

v.

Plaintiff,

KIMBERLY MALONE, JASON POPP,
SALLY TESS, and BRIAN HAYES,

Case No. 17-CV-1676-JPS

ORDER

Defendants.
Plaintiff Ronald Schroeder (“Schroeder”), a prisoner proceeding pro
se, filed a complaint under 42 U.S.C. § 1983, alleging that his constitutional
rights are being violated. (Docket #1) He has also filed a motion for the
appointment of counsel and a motion for leave to proceed in forma
pauperis. (Docket #3, #5). This case was initially assigned to Magistrate
Judge William E. Duffin. However, because not all parties have had the
opportunity to consent to the jurisdiction of the magistrate, the case was
randomly reassigned to this Court for screening the complaint and a
decision on the pending motions.
The Prison Litigation Reform Act (“PLRA”) gives courts discretion
to allow prisoners to proceed with their lawsuits without prepaying the
$350 filing fee, as long as they comply with certain requirements. 28 U.S.C.
§ 1915. One of those requirements is that they pay an initial partial filing
fee (“IPFF”). On December 28, 2017, Magistrate Duffin ordered Schroeder
to pay an IPFF of $208.83. Schroeder paid that fee on January 3, 2018.
Accordingly, the Court will grant his motion to proceed in forma pauperis.

Schroeder must pay the remainder of the filing fee over time in the
manner explained at the end of this Order.
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. Id. § 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 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; 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)); 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 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. The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher,
384 F.3d at 881.
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In considering whether a complaint states a claim, courts should
first “identif[y] 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 wellpleaded factual allegations, the Court must “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.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give 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)).
Schroeder is currently incarcerated at the Waukesha County Jail
facing revocation of his extended supervision. He is suing Kimberly
Malone (“Malone”), his probation and parole agent; Jason Popp (“Popp”),
a probation and parole supervisor; Sally Tess (“Tess”), a regional chief,
and Brian Hayes (“Hayes”), the Administrator at the Department of
Administration, Division of Hearings and Appeals.
Schroeder explains that, on October 3, 2016, the Wisconsin
Department of Corrections (“DOC”) implemented the Evidence-Based
Response to Violations (“EBRV”) guide, which seeks to ensure consistent
and appropriate responses to violations by those on extended supervision.
On September 19, 2017, Malone served him with revocation papers, which
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included an EBRV violation summary. Schroeder asserts that the
summary correctly characterized him as low risk to reoffend, but
incorrectly characterized his primary violation as high. He asserts that,
pursuant to the EBRV guide’s matrix (which is available on the DOC’s
website), the characterization of his primary violation should have been
low. Schroeder states that he immediately notified Malone of this
inaccuracy, but she allegedly replied, “That’s what the computer came up
with.” (Docket #1 at 3).
He alleges that he noticed similar inaccuracies in other people’s
summaries. Schroeder alerted Popp and Tess about the inaccuracies, but
they sent separate letters denying inaccuracies existed. On October 3,
2017, he emailed Malone, Popp, and Tess to apprise them of the
inaccuracies; he included a copy of the guide’s matrix and his summary.
Tess responded the next day, “Thank you for bringing this to our
attention. We will look into it.” Id. at 4. Schroeder states that he has
received no further response.
He forwarded the emails to state representative Evan Goyke and
his aide, Ryan Knocke. According to Schroeder, they agreed there were
inaccuracies and forwarded the information to their DOC liaison and
requested an explanation and a correction. Again, Schroeder reports that
he has received no further response.
Schroeder further alleges that his attorney confirmed that the
summary is inaccurate, but he told Schroeder that the parole and
probation staff refuse to address it. Schroeder stated that, as a result of not
being able to help him, his attorney withdrew from his revocation case.
Schroeder asks the Court to enjoin Defendants from convening his
final revocation hearing. He argues that Defendants are relying on
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information that is inconsistent with the guide in order to recommend
revocation of his extended supervision. Schroeder explains that he knows
of another person who was prevented from arguing at his revocation
hearing that the summary information relied on by the parole and
probation agent was inaccurate. As such, he fears that he, too, will be
prevented from raising this issue at the hearing.
The Court of Appeals for the Seventh Circuit has explained that a
plaintiff may state a due process claim if he alleges that the process he was
due (here, a final revocation hearing) was rendered unfair by a
defendant’s deliberate wrongdoing (here, the intentional inputting of false
information into the matrix and/or the refusal to correct inaccuracies after
being informed of them). See Armstrong v. Daily, 786 F.3d 529, 545 (7th Cir.
2015). The Court, however, cannot allow Schroeder to proceed with such a
claim because it is not ripe for adjudication. “A claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.
296, 300 (1998) (citations and internal quotations omitted). Here,
Schroeder alleges that his revocation hearing will be rendered unfair
because state officials will rely on an inaccurate assessment to recommend
revocation. He further alleges that he will be prohibited from challenging
the inaccuracy of the assessment.
Schroeder’s allegations assume that Malone will not address the
alleged inaccuracies prior to the hearing and, if she does not, that the
administrative law judge will refuse to allow Schroeder to raise the issue
at the hearing. Neither of these may occur. It is possible that, prior to the
hearing, the state representative’s request for correction may be heeded.
After all, Tess notified Plaintiff that she would “look into it.” Simply
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because Schroeder has not received notification of a correction does not
mean that no correction has been made. Further, even assuming Malone
does not correct the information, it is pure speculation to assert that the
administrative law judge will not allow Schroeder to raise that issue at the
revocation hearing.
In short, the Court finds that Plaintiff’s claim is too speculative at
present and therefore not ripe for adjudication. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (injury for which redress is sought must
be actual or imminent, not conjectural or hypothetical); see also Turnage v.
U.S. Parole Comm’n, 157 F. App’x 507, 509 (3d Cir. 2005) (dismissing
habeas petition challenging errors in parole revocation report where
revocation hearing had not been held and the errors had not materialized
into an unlawful revocation or sentence); Collura v. Ford, CIVIL ACTION
No. 13–4066, 2016 WL 409228, at *14–16 (E.D. Pa. Feb. 3, 2016) (probationer
facing revocation has no due process claim until his probation has been
revoked). Because the presence of counsel would not have impacted the
Court’s analysis, the Court will deny his motion to appoint counsel as
moot.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed
without prepayment of the filing fee (Docket #5) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel (Docket #3) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice;

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IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $141.17 balance
of the filing fee by collecting monthly payments from his prison trust
account in an amount equal to 20% of the preceding month’s income
credited to his 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
shall forward a copy of this order along with Plaintiff’s remaining balance
to the receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of January, 2018.
BY THE COURT:

___________________________
J. P. Stadtmueller
U.S. District Judge

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