Hatcher v. Saldana et al
ORDER signed by Judge J P Stadtmueller on 1/10/2022. IT IS ORDERED that Plaintiff's motion for reconsideration (Docket # 15 ) be and the same is hereby DENIED; IT IS FURTHER ORDERED that Plaintiff's motion to Proceed Without Prepayment of the Filing Fee (Docket # 20 ) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that by February 9, 2022, Plaintiff shall forward to the Clerk of Court the sum of $20.51 as the initial partial filing fee in this appeal. Plaintiffs failur e to comply with this order may result in dismissal of his appeal. The payment shall be clearly identified by the case name and number assigned to this action. (cc: all counsel, PLRA Attorney, and mailed via USPS to pro se Plaintiff and Warden)(rcm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 20-CV-1806-JPS
Seventh Cir. Case No. 21-3104
CHRISTOPHER SALDANA, KELLY
BARTAZACK, and HOLLY FERRY,
On December 8, 2020, Plaintiff Brian Hatcher, an inmate confined at
Dodge Correctional Institution, filed a pro se complaint under 42 U.S.C. §
1983 alleging that Defendants violated his constitutional rights. (Docket #1).
The Court screened Plaintiff’s complaint and dismissed it. Plaintiff now
moves the Court to reconsider its decision. (Docket #15).
Federal Rule of Civil Procedure 59(e) empowers a court to alter or
amend a judgment on motion by a party. Fed. R. Civ. P. 59(e). A party may
file a motion to alter or amend judgment “no later than 28 days after the
entry of the judgment.” Fed. R. Civ. P. 59(e). The party seeking relief under
this Rule must establish “a manifest error of law or present newly
discovered evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008).
Whether to grant a motion to amend a judgment “is entrusted to the sound
judgment of the district court,” In re Prince, 85 F.3d 314, 324 (7th Cir. 1996),
but the movant must first “clearly establish” his right to relief, Romo v. Gulf
Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001). A party may file a
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motion for relief from a judgment or order under certain circumstances that
include “mistake, inadvertence, surprise, or excusable neglect,” or “any
other reason that justifies relief.” Fed R. Civ. P. 60(b)(1),(6).
“Appeal, not reconsideration, is the time to deal with the majority
of legal errors,” and only “manifest errors . . . so obvious that no additional
explanation is needed or possible” are proper subjects of a Rule 59 motion.
Burney v. Thorn Ams., Inc., 970 F. Supp. 668, 671 (E.D. Wis. 1997). Such error
“is not demonstrated by the disappointment of the losing party” but instead
by “the ‘wholesale disregard, misapplication, or failure to recognize
controlling precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)).
Plaintiff alleges that Defendants Christopher Saldana (“Saldana”),
Kelly Bartazack (“Bartazack”), and Holly Ferry (“Ferry”), all of whom are
Wisconsin Department of Corrections (“DOC”) probation officers, violated
his constitutional rights under the Sixth, Eighth, and Fourteenth
Amendments when they revoked his “street-time” credit—which the Court
infers to mean extended supervision credit—and sentenced him to more
time in prison. (Docket #1 at 2-3). Specifically, Plaintiff alleges that, in
November 2011, Ferry and the DOC revoked eleven months of his extended
supervision credit and sentenced him to prison for one year and one month.
(Id. at 2). Next, Plaintiff states that, in June 2015, Bartazack revoked seven
months of his extended supervision credit and sentenced him to one year
and six months in prison. (Id.) Lastly, Plaintiff alleges that, in March 2019,
Saldana revoked two years and four months of extended supervision credit
and sentenced him to two years and one month in prison. (Id.) In total,
Plaintiff contends that although he was only sentenced to five years’
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extended supervision, he spent four-and-a-half years in prison due to the
extended supervision revocations. Plaintiff seeks relief compelling the DOC
to stop removing his street-time credit and monetary damages of
$10,000,000. (Id. at 4).
In the present case, the Court dismissed Plaintiff’s actions for two
reasons. First, as to Ferry, the Court determined that the statute of
limitations had run on the claim Plaintiff attempted to bring against her.
(Docket #13 at 3–4). Plaintiff does not challenge the Court’s finding on this
Second, the Court determined that the claims against Bartazack and
Saldana were barred by absolute immunity. (Id. at 4) (citing Tobey v.
Chibucos, 890 F.3d 634, 650 (7th Cir. 2018) (“Probation and parole officials
are entitled to absolute immunity ‘for their activities that are analogous to
those performed by judges.’”); Mays v. Johnson, No. 18- CV-1769, 2020 WL
4904075, at *3 (E.D. Wis. Aug. 20, 2020) (“In [recommending revoking the
plaintiff’s extended supervision and incarcerating him], [the defendant]
was engaged in a quasi-judicial function for which she is protected by
absolute immunity.”)). Plaintiff argues that the Court misunderstood his
complaint. Quoting Russell v. Lazar, 300 F. Supp. 2d 716, 720 (E.D. Wis.
2004), Plaintiff states that “[i]ncarcerating a prisoner beyond the
termination of his sentence without penological justification violates the
Eighth Amendment prohibition of cruel and unusual punishment when it
is the product of deliberate indifference.” (See Docket #15 at 5). While this
statement of the law is accurate, the court in Russell was concerned with
prison officials—not probation and parole officers. 300 F. Supp. 2d 716 at
720. “[C]laims against jailers for confinement beyond the term of a sentence
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typically involve qualified, not absolute, immunity.” Schneider v. Cnty. of
Will, 366 F. App’x 683, 685–86 (7th Cir. 2010). As in the present case, claims
against probation and parole officers who had a hand in revoking and
extending sentences are subject to absolute immunity. See, e.g., Weso v.
Thomson, No. 19-C-404, 2020 WL 3509612, at *3 (E.D. Wis. June 29, 2020),
appeal dismissed, No. 20-2293, 2020 WL 8102960 (7th Cir. Aug. 20, 2020). The
Court did, in fact, understand Plaintiff’s complaint as alleging that
Defendants improperly extended (not revoked) his sentence. But Defendants
are entitled to absolute immunity.
PLAINTIFF’S MOTION TO APPEAL WITHOUT PREPAYMENT
OF THE FILING FEE
Under the Prison Litigation Reform Act, a prisoner must pay the
applicable filing fees in full for a civil action. 28 U.S.C. § 1915(b). If a
prisoner does not have the money to pay the $505.00 filing fee in advance
for an appeal, he or she can request leave to proceed in forma pauperis. To
proceed with an action or appeal in forma pauperis, the prisoner must
complete a petition and affidavit to proceed in forma pauperis and return it
to the court along with a certified copy of the prisoner’s trust account
statement showing transactions for the prior six months. Id. § 1915(a)(2).
The court must assess an initial filing fee of twenty percent of the average
monthly deposits to the plaintiff’s prison account or average monthly
balance in the plaintiff’s prison account for the six-month period
immediately preceding the filing of the notice of appeal, whichever is
greater. Id. § 1915(b)(1).
After the initial fee is paid, the plaintiff must make monthly
payments of twenty percent of the preceding month’s income until the
filing fee is paid in full. Id. § 1915(b)(2). The agency which has custody of
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the prisoner will collect the money and send payments to the court. No
payment is required in months when the plaintiff’s preceding month’s
income is $10.00 or less. Id.
There are three grounds for denying a prisoner appellant’s request
to proceed in forma pauperis: the prisoner has not established indigence, the
appeal is in bad faith, or the prisoner has three strikes. See id. §§ 1915(a)(2)–
(3), (g). The Court finds that Plaintiff has established that he is indigent and
that he has not accrued three strikes. That leaves only the question of
whether Plaintiff filed this appeal in good faith.
A party who has been granted leave to proceed in forma pauperis in
the district court may proceed in forma pauperis on appeal without further
authorization unless the district court certifies that the appeal is not taken
in good faith or determines that the party is otherwise not entitled to
proceed in forma pauperis. Fed. R. App. P. 24(a); Celske v. Edwards, 164 F.3d
396, 398 (7th Cir. 1999) (“[A] plaintiff who. . .was allowed to proceed in
forma pauperis in the district court retains his IFP status in the court of
appeals unless there is a certification of bad faith.”). A district court should
not apply an inappropriately high standard when making a good faith
determination. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An appeal
taken in “good faith” is one that seeks review of any issue that is not
frivolous, meaning that it involves “legal points arguable on their merits.”
Howard v. King, 707 F.2d 215, 219–20 (5th Cir. 1983) (quotation omitted);
Coppedge v. United States, 369 U.S. 438, 445 (1962). On the other hand, an
appeal taken in bad faith is one that is based on a frivolous claim, that is, a
claim that no reasonable person could suppose has any merit. Lee v. Clinton,
209 F.3d 1025, 1026 (7th Cir. 2000).
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The Court finds that Plaintiff’s appeal is taken in good faith. His
motion claims that this Court improperly dismissed his complaint because
he “didn’t state [his] claim clear enough for the Judge” and the Court
misunderstood his claims. (Docket #20 at 1). Plaintiff presented this
argument to the Court in his motion to reconsider, (Docket #15), and, while
this Court did not accept it as a valid argument, perhaps the higher court
will find something in Plaintiff’s briefing that this Court could not. In light
of the exceedingly lenient standard of review and Plaintiff’s comprehensive
submissions, the Court is satisfied that Plaintiff’s appeal is taken in good
faith. He will, therefore, be permitted to proceed on appeal in forma pauperis.
Along with his request to proceed in forma pauperis, Plaintiff filed a
certified copy of his prison trust account statement for the six-month period
immediately preceding the filing of his notice of appeal. (Docket #21). A
review of this information reveals that Plaintiff is required to pay an initial
partial filing fee of $20.51, as well as additional payments pursuant to 28
U.S.C. § 1915(b)(2). Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997), rev’d
on other grounds, Walker, 216 F.3d 626. Plaintiff must pay this amount within
thirty days from the date of this Order or his appeal may be dismissed.
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#15) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to Without
Prepayment of the Filing Fee (Docket #20) be and the same is hereby
IT IS FURTHER ORDERED that by February 9, 2022, Plaintiff shall
forward to the Clerk of Court the sum of $20.51 as the initial partial filing
fee in this appeal. Plaintiff’s failure to comply with this order may result in
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dismissal of his appeal. The payment shall be clearly identified by the case
name and number assigned to this action;
IT IS FURTHER ORDERED that after the initial filing fee has been
paid, 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 the prisoner’s trust account
and forwarding payments to the Clerk of the Court each time the amount
in the account exceeds $10.00 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 FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
IT IS FURTHER ORDERED that a copy of this order be
electronically provided to PLRA Attorney, United States Court of Appeals
for the Seventh Circuit, through the court’s electronic case filing system.
Dated at Milwaukee, Wisconsin, this 10th day of January, 2022.
BY THE COURT:
U.S. District Judge
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