Tank v. Division of Community Corrections

Filing 8

DECISION AND ORDER that this action is DISMISSED for failure to state a claim. The Clerk of Court shall enter judgment accordingly. IT IS ORDERED that the Clerk of Court document that this inmate has incurred a strike under 28 U.S.C. § 1915(g). (cc: all counsel, plaintiff, Jail Sergeant)(gc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
JASON C. TANK,
Plaintiff,
v.

Case No. 18-C-0049

DIVISION OF COMMUNITY CORRECTIONS,
Defendant.
______________________________________________________________________
DECISION AND ORDER
Plaintiff Jason Tank filed an action under 42 U.S.C. § 1983 against the State of
Wisconsin’s Division of Community Corrections (which is a division of the state’s
Department of Corrections). In this order, I address plaintiff’s motion for leave to
proceed without prepayment of the filing fee and screen the complaint.
The Prison Litigation Reform Act (“PLRA”) applies to this action because plaintiff
was incarcerated when he filed this complaint. 28 U.S.C. §1915. The law allows inmates
to proceed in federal court without pre-paying the $350 filing fee. Id. The inmate must
comply with certain requirements, one of which is to pay an initial partial filing fee. Id.
On January 16, 2018, I assessed an initial partial filing fee of $8.34. Plaintiff paid that
amount on January 19, 2018. Therefore, I will grant plaintiff’s motion to proceed without
prepayment of the filing fee.
The PLRA requires me 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). I can dismiss an action or portion thereof 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).

I. ALLEGATIONS
The events giving rise to plaintiff’s claim occurred while he was on extended
supervision. He alleges that, in October 2014, an intern who worked at the Division of
Community Corrections stole some files from the division’s offices and used them to
contact plaintiff. Plaintiff then had a sexual relationship with the intern over the course
of two months.

Plaintiff alleges that, in late November 2014, he tried to end the

relationship, but the intern “blackmailed” him into continuing the relationship.
Plaintiff alleges that he finally ended the relationship in December 2014.
However, after he did so, the intern sent text messages to his cell phone, which at the
time was in the possession of plaintiff’s girlfriend. The intern told the girlfriend that she
was having sex with plaintiff. The girlfriend told the intern that she intended to report the
intern’s behavior to her supervisor at the Division of Community Corrections. The intern
responded by threatening to have plaintiff revoked from extended supervision. Plaintiff
alleges that, around this time, the intern would drive by plaintiff’s house and harass both
him and his girlfriend. She also broke a window on plaintiff’s truck and warned plaintiff
that she would have him revoked if he reported her actions. Plaintiff alleges that the
intern’s acts of harassment continued until February 2015.
Plaintiff alleges that, because of the intern’s actions, and because her office was
across the hall from his probation agent’s, he failed to report to the division as required
by the conditions of his extended supervision from December 2014 through May 2015.
Plaintiff’s failure to report eventually resulted in the revocation of his extended
supervision. He is currently in custody at the Outagamie County Jail.
Plaintiff alleges that, in May 2015, a supervisor at the Division of Community

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Corrections named Roger Neveau was informed of the intern’s actions. Neveau told
plaintiff that the allegations concerning the intern were being investigated. Neveau also
told plaintiff that he was a victim under the Prison Rape Elimination Act.

A week later,

Neveau told plaintiff that “the only thing that happened” to the intern was that the
division reported her behavior to Fox Valley Tech (which I presume was the school that
sponsored the internship).
Plaintiff alleges that Neveau handled the situation negligently. However, he has
not named Neveau (or any other person) as a defendant. The sole named defendant is
the Division of Community Corrections. Plaintiff seeks to be compensated for the 12
months he has spent in jail following the revocation of his extended supervision due to
his failure to report.

He also asks to be released from custody.

He also seeks

compensation for other harm caused by the intern’s actions, such as the damage to his
truck.
II. DISCUSSION
The plaintiff has not stated a federal claim for relief against the Division of
Community Corrections.

The division is an agency of the State of Wisconsin, and

states and state agencies are not “persons” who are suable under 42 U.S.C. § 1983.
See, e.g., Owens v. Godinez, 860 F.3d 434, 437–38 (7th Cir. 2017). As no statute other
than § 1983 would provide plaintiff with a federal cause of action for damages for the
events alleged in his complaint, this entire suit must be dismissed.
I note, however, that even if plaintiff had named a defendant who is a “person”
under § 1983, there would be other problems with his complaint. First, to the extent
plaintiff seeks release from custody, his sole federal remedy would be to file a petition

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for a writ of habeas corpus and name the administrator of the Outagamie County Jail as
the respondent. Release from custody is not a remedy that is available under 42 U.S.C.
§ 1983. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Second, to the extent plaintiff
seeks damages for the time he has spent in custody since his revocation, he cannot
bring an action under § 1983 unless he first has had the revocation order invalidated
either in state proceedings or through a federal petition for a writ of habeas corpus. See
Heck v. Humphrey, 512 U.S. 477 (1994). As plaintiff is still in custody, it is obvious that
the order has not been invalidated, and that therefore plaintiff cannot bring an action for
damages for the time he spent in custody since his revocation.
Third, it appears that plaintiff thinks the Division of Community Corrections was
negligent in its supervision of the intern. The proper defendant to any such negligence
claim would likely by Neveau, who appears to have supervised the intern. Still, the
claim would not be viable under § 1983, because under that statute a supervisor cannot
be liable for simple negligence. See City of Canton v. Harris, 489 U.S. 378, 391–92
(1989); Hirsch v. Burke, 40 F.3d 900, 905 (7th Cir. 1994). Moreover, it is hard to identify
any federal law that is implicated by the facts alleged in the complaint, and a claim
under § 1983 can only be used to redress violations of federal law. See, e.g., Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003).

Plaintiff mentions the Prison Rape

Elimination Act, which is a federal law, but he does not allege that Neveau violated that
Act. In any event, the Act does not appear to create any federal rights that could be
enforced by a victim of sexual misconduct in a lawsuit for damages.
III. CONCLUSION

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For the reasons stated, IT IS ORDERED that plaintiff’s motion for leave to
proceed without prepayment of the filing fee (Docket No. 2) is GRANTED. The agency
having custody of the prisoner shall collect from his institution trust account the $341.66
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, county, state, or federal, the
transferring institution shall forward a copy of this order along with plaintiff's remaining
balance to the receiving institution.
IT IS ORDERED that a copy of this order be sent to the officer in charge of the
agency where plaintiff is confined.
IT

IS

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. The Clerk of Court
shall enter judgment accordingly.
IT IS ORDERED that the Clerk of Court document that this inmate has incurred a
“strike” under 28 U.S.C. § 1915(g).
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 requests an extension and shows

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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).
A party is expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 23rd day of February, 2018.

/s Lynn Adelman
LYNN ADELMAN
District Judge

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