Knickerbocker v. Stertz et al

Filing 8

ORDER signed by Judge Lynn Adelman on 6/25/18. IT IS ORDERED that plaintiff's motion for leave to proceed without prepayment of the filing fee 2 is GRANTED. IT IS FURTHER ORDERED that that this action is DISMISSED WITHOUT PREJUDICE. IT IS FUR THER ORDERED that the agency having custody of plaintiff shall collect from his institution trust account the $344.10 balance of the filing fee by collecting monthly payments from plaintiffs prison trust account in an amount equal to 20% of the preceding months income credited to plaintiff's trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10. IT IS ALSO ORDERED that a copy of this order be sent to the officer in charge of the agency where plaintiff is confined. (cc: all counsel, plaintiff, financial)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEVEN G. KNICKERBOCKER,
Plaintiff,
v.

Case No. 18-C-705

CHUCK STERTZ,
JONATHAN ZEISSER,
STEVEN D. JOHNSON,
DANA J. JOHNSON,
HEATHER KAVANAUGH,
M. HEENEN, AND
JASON DEMERATH,
Defendants.
______________________________________________________________________
SCRENING ORDER
Plaintiff Steven G. Knickerbocker, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. § 1983, alleging that defendants violated his civil
rights. This decision resolves plaintiff’s motion for leave to proceed without prepayment
of the filing fee and screens his complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act applies to this case because plaintiff was

incarcerated when he filed his complaint. 28 U.S.C. § 1915. That law allows a court to
give an incarcerated plaintiff the ability to proceed with his case without prepaying the
civil case filing fee, as long as he meets certain conditions. One of those conditions is
that the plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b). Once plaintiff pays
the initial partial filing fee, the court may allow him to pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.

On May 22, 2018, I ordered the plaintiff to pay an initial partial filing fee of $5.90.
Plaintiff paid that fee on June 4, 2018. Therefore, I will grant plaintiff’s motion for leave
to proceed without prepayment of the filing fee. He must pay the remainder of the filing
fee over time in the manner explained at the end of this order.
II.

Screening Plaintiff’s Complaint
A.

Federal Screening Standard

The law requires the court 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 if the plaintiff raises 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).
To state a claim, a complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows a court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
To state a claim 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
defendant was acting under color of state law.

Buchanan-Moore v. County of

Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640
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(1980). The court gives a pro se plaintiff’s 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)).
B.

Plaintiff’s Allegations

Plaintiff is incarcerated at the Redgranite Correctional Institution.

He sues:

Outagamie County Assistant District Attorney Chuck Stertz; Brown County Assistant
District Attorney Dana J. Johnson; Attorney Steven D. Johnson; Attorney Heather B.
Kavanaugh; M. Heenen, who works for the Outagamie Sheriff’s Department; Jonathan
Zeisser, an investigator who works for the Supreme Court of Wisconsin; and City of
Ashwaubenon Officer Jason Demerath.
Plaintiff alleges that defendant Dana Johnson, out of personal hatred and
revenge toward plaintiff, violated his rights in various ways, related to “case # 2017-CF399.” (ECF No. 1 at 2.) Dana Johnson called Calumet County District Attorney Nathan
F. Haberman and told him that plaintiff was “guilty of all crimes.” (Id.) The judge said
that plaintiff was a danger to the community and sentenced him to three years for retail
theft. Then, defendant Dana Johnson called the Outagamie County DA’s Office looking
for cases against plaintiff. Dana Johnson told them to use a false statement to bring
charges into court. Defendant Stertz got defendant Heenan to insert a false statement,
“which changed Grand Chute officers to Appleton officers and changing a car not
owned by Knickerbocker to his car and changing giving consent to search which
Knickerbocker told officers that he could not give consent for vehicle did not belong to
him [sic].” (Id. at 2-3.)

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Plaintiff alleges that Dana Johnson had his brother defendant Steven Johnson,
who is a public defender, represent plaintiff. Defendant Steven Johnson told plaintiff the
false statement would be fixed in court . Plaintiff filed a pro se motion with the court and
“Chuck Stertz got Heather Kavanaugh to withdraw motion from the Judge’s hand
violating Knickerbocker’s 14th right.” (Id. at 3.)
Plaintiff alleges that Dana Johnson is “out for revenge” and plaintiff mentions
several prior cases where Johnson allegedly used false statements against plaintiff.
Plaintiff states, “So how can I have a fair trial if the DDA is falsifying stuff and Lawyer
just sits there letting them do it.” (Id. at 4.)
For relief, plaintiff seeks:
All my cases with Dana J. Johnson on the case removed from record and
compensation for the cases with his name on them. All his cases should
be reviewed. I can’t be the only one Dana J. Johnson has done this to.
Compensation for emotional and Physical damages this has caused Mr.
Knickerbocker. Prosecution of Dana J. Johnson. A Federal investigation
of the Public Defender’s Office the DA’s Office of every County in
Wisconsin. Stop the use of Allegations to throw people in prison, for it is
unconstitutional Stop throwing Fathers in prison for child support, find
them a job Stop misusing Federal funds meant for prisons on what you
want. Put Judges back in Power in the court rooms not the DA. Remove
the Attorney General and have him investigated. Bring back Companies
that Wisconsin has let move to other places re: Mexico. The Courts are
not a playground for the Executive branch of Wisconsin. Time to change
how this State is Run. I have asked for one Million in cash to the Attorney
General of WI, for compensation. Want Dana J. Johnson investigated in
all his cases, He thinks this is funny. Because DA’s can make anything up
and have someone arrested, and we wonder why this State’s prisons are
full. Everyone knows that Wisconsin just makes stuff up and throws you in
Prison. Had a Judge threaten me in Green Bay and say his Stenographer
was deaf after I sent a letter to the Judge, with evidence and Truth.
(Id. at 5.)

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C.

The Court’s Analysis

Plaintiff wants to have criminal convictions removed from his record and he
seeks compensation for alleged unlawful convictions. Plaintiff claims that defendants,
at Dana Johnson’s behest, used false statements against him in court resulting in a
criminal conviction.

However, plaintiff’s contention that his convictions are invalid

because he was charged with a fabricated crime, or because fabricated evidence was
used against him, are barred by Heck v. Humphrey, 512 U.S. 444 (1994). See Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (explaining that Heck bars “allegations
that are inconsistent with the conviction’s having been valid”).
An inmate who wants to challenge the validity of his confinement may do so by
filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Hill v. McDonough,
547 U.S. 573, 579 (2006) (citing Muhammad v. Close, 540 U.S. 749, 750 (2004). I will
dismiss plaintiff’s complaint without prejudice. Once plaintiff has exhausted applicable
state court remedies (such as appeal), he can consider whether he wants to file a
federal habeas petition under 28 U.S.C. § 2254 or a claim for money damages under 42
U.S.C. § 1983. If plaintiff decides to file a federal habeas petition, he will have to
demonstrate that he has “exhausted” his remedies, and he must make sure that he
timely files his petition under 28 U.S.C. § 2244(d). The court will mail the plaintiff a pro
se guide, Habeas Corpus: Answers to State Petitioners’ Common Questions, along with
this order.
III.

Conclusion
For the reasons stated, IT IS ORDERED that plaintiff’s motion for leave to

proceed without prepayment of the filing fee (ECF No. 2) is GRANTED.
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IT IS FURTHER ORDERED that that this action is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that the agency having custody of plaintiff shall
collect from his institution trust account the $344.10 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.
IT IS ALSO ORDERED that a copy of this order be sent to the officer in charge
of the agency where plaintiff is confined.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS FURTHER ORDERED that the Clerk’s Office mail plaintiff a pro se guide,
Habeas Corpus: Answers to State Petitioners’ Common Questions, along with this
order.
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 thirty 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
good cause or excusable neglect for not being able to meet the thirty-day deadline. See
Fed. R. App. P. 4(a)(5)(A).
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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 twenty-eight 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 25th day of June, 2018.

_s/Lynn Adelman________
LYNN ADELMAN
United States District Judge

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