Bates v. Zimdars et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 2/12/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 7 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. Plaintiff to FILE an am ended pleading curing the defects in the original complaint by 3/5/2018. Agency having custody of Plaintiff to COLLECT from his institution trust account the balance of the filing fee in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Don M. Bates, III and Warden at Racine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DON M. BATES III,

v.

Plaintiff,

Case No. 18-CV-50-JPS

KORY ZIMDARS, VICKI SEIBELGARVEY, CHRISTINA MINNETI,
and DONNA HARRIS,
Defendants.

ORDER

Plaintiff, who is incarcerated at Racine Correctional Institution
(“Racine”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). This matter comes before the Court
on Plaintiff’s motion to proceed in forma pauperis. (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $37.86. 28 U.S.C. §
1915(b)(4). The Court now turns to screening the complaint pursuant to the
Prison Litigation Reform Act, 28 U.S.C. § 1915A.
1.

LEGAL STANDARDS
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). 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); 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; 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.
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
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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)).
2.

ANALYSIS
Plaintiff’s allegations primarily concern the conditions of supervised

release imposed upon him in connection with a state conviction for a sex
offense. Defendants are all employees of the Wisconsin Department of
Corrections Division of Community Corrections (the “DCC”). Plaintiff
alleges that he was released from imprisonment into a term of extended
supervision on February 10, 2015. (Docket #1 at 1). His supervised release
status was revoked nine days later. Id. It is not clear whether Plaintiff’s
present confinement, nearly three years after the relevant events, stems
from that revocation or from some other infraction. (Plaintiff reports that he
is to be released from imprisonment on February 13, 2018.)
Plaintiff’s complaint takes the form of a laundry list of grievances
against his supervising probation officer and the officer’s supervisors
within the DCC. Plaintiff says that Defendants imposed unwarranted and
overly burdensome release conditions, enforced those conditions in an
unfair way because of personal animus against him, and secured his
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revocation based on trumped-up violations of the conditions. The vast
number of alleged unlawful acts, each tied to their own set of relevant and
irrelevant federal laws and constitutional provisions, makes divining the
viable claims difficult. To that end, the Court finds it expedient to first
describe the legal constraints on claims like Plaintiff’s, then identify the
numerous deficiencies in the complaint, and finally set Plaintiff the task of
amending the complaint.
2.1

Legal Principles Governing Challenges to Supervision

The Court begins by reviewing the applicable law. First, to the extent
Plaintiff seeks release from his present confinement, such a claim must be
made in a habeas petition, not a Section 1983 action. The Seventh Circuit
holds that conditions of probation are a form of custody. Drollinger v.
Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977); Williams v. Wisconsin, 336 F.3d
576, 580 (7th Cir. 2003). A challenge to those conditions is an attack on the
fact or duration of the plaintiff’s confinement, which “is the traditional
function of the writ of habeas corpus.” Drollinger, 552 F.2d at 1225. Plaintiff
has not named the prison warden or expressly sought release, so the Court
will not transform his complaint into a habeas petition. Henderson v. Bryant,
606 F. App’x 301, 303–04 (7th Cir. 2015). Any such claim will have to be
brought, if at all, in a separate proceeding.
Second, Plaintiff may not proceed on a claim “for having been
recommitted based on the violation of release conditions that he contends
are unconstitutional[.]” Id. This is so because, if he was successful, it would
“vitiate the basis for his commitment, and Heck v. Humphrey, 512 U.S. 477
(1994), bars civil damages actions where a ‘judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.’” Id.
Thus, to the extent Plaintiff was revoked on fabricated violations of release
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conditions, however unfair he may think those conditions were, Heck bars
any challenge thereto. His opportunity to dispute the appropriateness of
the conditions and the facts underlying the alleged violations thereof was
at the revocation hearing and through whatever state appeals or federal
habeas actions may have followed; a Section 1983 damages action is no
substitute. See Reilly v. Herrera, 622 F. App’x 832, 834 (11th Cir. 2015). In the
event Plaintiff successfully overturns his revocation, he may revisit this
claim. See Henderson, 606 F. App’x at 304.1
Third, Plaintiff cannot be allowed to seek an order preventing future
imposition of release conditions, even ones similar to those that preceded
his revocation. See id. “[U]nless and until they are imposed on him again,
that type of challenge is premature.” Id. Because he is presently
incarcerated, he is not subject to the conditions and cannot challenge them
at this time. Id.
With those claims set aside, the Court turns to the lone type of claim
that the Seventh Circuit in Henderson held could survive screening in cases
like Plaintiff’s:
Henderson appears to seek damages for having had to
endure for three months the restrictive conditions of release
(or abusive actions of the defendants) that did not lead to his
recommitment but which he contends to have been
unconstitutional. Because a successful damages action
challenging those conditions or actions would not imply the

This result holds even if Plaintiff’s present incarceration is not related to
his February 2015 revocation. As several Circuit courts have explained, a plaintiff
may not avoid a Heck bar by simply waiting until his release to file a Section 1983
action. If he was revoked, Plaintiff would have had time available to him while
incarcerated to pursue an appeal or post-conviction relief from the revocation. His
failure to avail himself of those remedies would be fatal to a challenge to the
revocation in a later Section 1983 suit. Reilly, 622 F. App’x at 834; Guerrero v. Gates,
442 F.3d 697, 705 (9th Cir. 2006).
1

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invalidity of his current confinement, Heck does not bar a §
1983 claim challenging them. But these claims face a different
hurdle: insofar as they seek damages from the defendants for
enforcing release conditions that a court specifically ordered,
the defendants may be protected by absolute quasi-judicial
immunity, which would bar any recovery. But for two
reasons it is too soon to treat these claims as blocked by
absolute immunity. First, Henderson contends that, by
barring all contact with family members and entering and
searching his home at night while he slept, the defendants
enforced the court’s order in an unconstitutional manner; a
claim that a defendant enforced a court order in an
unconstitutional manner is not necessarily barred by quasijudicial immunity. Second, the defendants have not yet been
served and so have not yet advanced any defenses, which the
district court should ordinarily consider in the first instance.
Henderson may thus proceed on this one aspect of his case.
Id. at 304–05 (citations omitted). Thus, Henderson teaches that a parolee may
proceed only on claims that he was subjected to conditions beyond those
authorized in the applicable criminal judgment or other valid orders, that
he was subjected to unconstitutional conditions which did not form the
basis for his revocation, or that his probation officer imposed conditions
(that did not form the basis for his revocation) in an unconstitutional
manner.
2.2

Plaintiff’s Allegations Under Henderson

The complaint does not clearly explain the full extent of the
conditions of supervision to which Plaintiff was subject, the criminal case
in which those conditions were imposed, and a complete list of the reasons
for his revocation. Without these facts, the Court cannot conclude that
Plaintiff’s claims are either valid or invalid under the above-described legal
principles.

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To better demonstrate this difficulty, the Court will briefly review
Plaintiff’s factual allegations against each Defendant. First is his
supervising probation officer, Kory Zimdars (“Zimdars”), whom Plaintiff
asserts imposed rules of supervision that he knew would interfere with
Plaintiff’s ability to work, harm his health, intrude upon his personal
privacy, and impede his rehabilitation. (Docket #1 at 4). Plaintiff’s litany of
complaints about his probation officer includes, in part, that Zimdars:
(1)

seized the keys to Plaintiff’s home and office;

(2)

seized some of his mail;

(3)

forced him to obtain a land-line telephone in order to facilitate
the functioning of an ankle location monitoring device;

(4)

confined Plaintiff’s movement to one Wisconsin county and
restricted his out-of-state travel to three days (over an
undefined period);

(5)

forced him to apply for permission to go “to virtually any
public or private place where children may, or may not, be
present”;

(6)

prohibited Plaintiff from possessing a personal computer or
smartphone, among other types of electronic devices with
Internet access;

(7)

threated to issue a warrant for Plaintiff’s arrest prior to his
release from incarceration at Racine without cause;

(8)

submitted fraudulent documents to prison officials regarding
Plaintiff’s alleged financial obligations to the court, thereby
unlawfully siphoning some of Plaintiff’s inmate trust account
funds;

(9)

engaged in “surprise manipulation” of Plaintiff’s prison
release account funds by impeding his ability to pay for
psychiatric medications;

(10)

accused Plaintiff of altering his medication regimen without
approval;

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(11)

ordered Plaintiff to submit to sex offender treatment by a
person who Plaintiff alleges has a history of demeaning and
mistreating patients;

(12)

accused Plaintiff of violating his release conditions by owning
a smart television; and

(13)

prohibited the use of the popular TV streaming services and
for penalizing Plaintiff for his mental disability.

Id. at 4–8. These actions allegedly violated a wide variety of Plaintiff’s
constitutional rights, including those arising under the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments. Id.
Plaintiff next alleges that Defendant Vicki Seibel-Garvey (“SeibelGarvey”), Zimdars’ supervisor in the DCC, supported and directed
Zimdars’ campaign of mistreatment against Plaintiff. Id. at 8–9. According
to Plaintiff, she knew of the ongoing deprivations of Plaintiff’s rights but
failed to intervene and indeed encouraged Zimdars. Id.
As for Defendant Christina Minneti (“Minneti”), the DCC field
supervisor (ostensibly supervising both Zimdars and Seibel-Garvey),
Plaintiff alleges that she refused to amend Plaintiff’s conditions after being
notified of his belief that they are unlawful, nor did she seek to compromise
on these issues in light of Plaintiff’s particular circumstances. Id. at 9–10.
Additionally, Plaintiff claims that Minneti refused to abide by the direction
of her supervisor, Defendant Donna Harris (“Harris”), who apparently did
amend Plaintiff’s conditions to allow use of a computer and smartphone as
long as “monitoring software” was installed on them. Id.
Finally,

Plaintiff

includes

Harris

as

a

defendant

despite

acknowledging that she apparently did something he liked—removing the
computer and smartphone restriction. Id. at 10. He nevertheless maintains
that she took no steps to remedy the other ongoing constitutional violations

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and indeed sent him an unsolicited letter stating that the DCC regional
office would not intervene as he requested. Id. For both Minneti and Harris,
Plaintiff’s theory is less about their own actions and seemingly more about
their subordinates’ treatment of him. See id.
As the Court’s description of the claims makes clear, the primary
problem with the complaint is the inability to separate claims about the
conditions themselves, which Henderson will not allow in a Section 1983
action, from claims about unfair application of those conditions, which is
permitted. For example, is Plaintiff’s gripe about having his mail and keys
seized an attack on a condition of release or Zimdars’ unilateral,
unconstitutional action? It is impossible to say. Plaintiff says at times that
Zimdars “imposed” or “enforced” unfair rules of supervision, which
sounds like a Henderson-barred claim, but at other moments alleges that
Zimdars went beyond those conditions to threaten revocation without
cause or deny Plaintiff his medications. See id. at 4–8. Given these
contradictions, the Court cannot fully evaluate Plaintiff’s claims at present.
The Court will, therefore, direct Plaintiff to file an amended
complaint addressing these deficiencies. If he wants to proceed, Plaintiff
must file an amended complaint on or before March 5, 2018. Failure to file
an amended complaint within this time period will result in dismissal of
this action.
The amended complaint must bear the docket number assigned to
this case and must be labeled “Amended Complaint.” The amended
complaint supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th Cir. 1998).
In Duda, the appellate court emphasized that in such instances, the “prior
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pleading is in effect withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted). If an amended complaint is
received, the Court will screen it pursuant to 28 U.S.C. § 1915A.
2.3

Motion for Appointment of Counsel

Also pending before the Court is Plaintiff’s motion requesting the
appointment of counsel. (Docket #7). As a civil litigant, Plaintiff has no
automatic right to court-appointed counsel. Luttrell v. Nickel, 129 F.3d 933,
936 (7th Cir. 1997). However, under 28 U.S.C. § 1915(e)(1), the “court may
request an attorney to represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if: (1) he has made
reasonable attempts to secure counsel; and (2) “‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)).
The Seventh Circuit has emphasized that “[t]he question is not whether a
lawyer would present the case more effectively than the pro se plaintiff; ‘if
that were the test, district judges would be required to request counsel for
every indigent litigant.’” Pruitt, 503 F.3d at 655 (quoting Johnson v. Doughty,
433 F.3d 1001, 1006 (7th Cir. 2006)) (internal quotation omitted). Instead,
“[t]he question is whether the plaintiff appears competent to litigate his
own claims, given their degree of difficulty, and this includes the tasks that
normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Id.
Plaintiff’s

request

for

counsel

must

be

denied

because,

notwithstanding his efforts to obtain his own counsel, he has not presented
any evidence or argument showing that he cannot litigate this matter
competently on his own. First, Plaintiff says that his lack of legal training
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and access to legal research materials will limit his ability to litigate this
case. (Docket #7 at 1). Plaintiff’s lack of training, while unfortunate, brings
him in line with practically every other prisoner litigating in this Court. On
its own, it is not a sufficient reason for appointing counsel. Nor is Plaintiff’s
diminished access to legal research a matter this Court should remedy with
provision of counsel, for many non-incarcerated persons suffer from similar
difficulties and yet are expected to pay for their own lawyers if they want
help with research or preparation of court filings. Plaintiff’s point seems to
be that counsel would do a better job than he, but the Seventh Circuit has
rejected this as a basis for appointment of counsel. Pruitt, 503 F.3d at 655.
Moreover, the Court finds that, at least at this early stage in the case,
the issues presented are not so complex that Plaintiff cannot be expected to
adequately address them. Plaintiff’s only attempt to convince the Court
otherwise is to state that the case is “difficult,” without elaboration. (Docket
#7 at 1). As a party seeking relief in this Court, Plaintiff is expected to
familiarize himself with the substantive and procedural rules that will bear
on his case. Plaintiff’s plea that he is unfamiliar with federal litigation is,
therefore, unpersuasive. Id. Likewise, the mere fact that Defendants will be
represented by counsel is not a reason why Plaintiff should be afforded
representation.
Finally, Plaintiff has not submitted any evidence that he suffers from
cognitive, behavioral, or other limitations affecting his ability to present his
arguments in a cogent fashion. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th
Cir. 2014). His filings thus far suggest that he has no such limitation.
Plaintiff’s reference to his mental illness related to his sex offense, (Docket
#7 at 1), is not a condition affecting his ability to litigate.

Page 11 of 13

As such, the Court concludes that recruitment of counsel in this case
is not justified at this time, and will deny Plaintiff’s motion for appointment
of counsel without prejudice. The Court further notifies Plaintiff that, as
will be explained in the forthcoming trial scheduling order, the Court
generally does not consider requests for appointment of counsel until, at
earliest, the close of discovery.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment
of counsel (Docket #7) be and the same is hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that on or before March 5, 2018,
Plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that the agency having custody of the
prisoner 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
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 a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that Plaintiff shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each filing
will be electronically scanned and entered on the docket upon receipt by
the clerk, Plaintiff need not mail copies to Defendants. All Defendants will
be served electronically through the court’s electronic case filing system.
Plaintiff should also retain a personal copy of each document filed with the
Court.
The Court further advises Plaintiff that failure to make a timely
submission may result in the dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of
address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 12th day of February, 2018.
BY THE COURT:

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

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