Hoskins v. Ertl et al

Filing 19

ORDER signed by Judge Brett H Ludwig on 1/18/23 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. 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 document that this inmate has incurred a strike under 28 U.S.C. §1915(g). (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES HOSKINS,
Plaintiff,
v.

Case No. 22-cv-873-bhl

CHRISTOPHER ERTL, et al.,
Defendants.
SCREENING ORDER
Plaintiff James Hoskins, who is currently in custody at the Wisconsin Resource Center and
representing himself, filed a complaint under 42 U.S.C. §1983, alleging that his civil rights were
violated. This matter comes before the Court on Hoskins’ motion for leave to proceed without
prepaying the full filing fee and to screen the amended complaint. Dkt. Nos. 2 & 6.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
Hoskins has requested leave to proceed without prepaying the full filing fee (in forma
pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of
the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). Hoskins has filed a certified copy of
his prison trust account statement for the six-month period immediately preceding the filing of his
complaint, as required under 28 U.S.C. §1915(a)(2), and has been assessed and paid an initial
partial filing fee of $85.42. The Court will therefore grant the motion for leave to proceed without
prepaying the filing fee.

Case 2:22-cv-00873-BHL Filed 01/18/23 Page 1 of 8 Document 19

SCREENING OF THE AMENDED COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, and dismiss any complaint
or portion thereof if the prisoner has raised any 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). In screening a complaint, the
Court must determine whether the complaint complies with the Federal Rules of Civil Procedure
and states at least plausible claims for which relief may be granted. To state a cognizable claim
under the federal notice pleading system, a 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 must be
at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well
as when and where the alleged actions or inactions occurred, and the nature and extent of any
damage or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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

2
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 2 of 8 Document 19

alleged.” Id. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
ALLEGATIONS OF THE COMPLAINT
Hoskins has been in state custody since January 2022 awaiting trial on four felonies and
two misdemeanors in Milwaukee County Circuit Court Case No. 22CF297. See State of Wisconsin
v.

James

Hoskins,

WISCONSIN

CIRCUIT

COURT

ACCESS

(“CCAP”),

https://wcca.wicourts.gov/caseDetail.html?caseNo=2022CF000297&countyNo=40&index=0&m
ode=details (last visited Jan.17, 2023). Defendants are criminal defense attorney Christopher Ertl,
district attorney Owen Piotrowski, psychologist Thomas Deboer, and psychologist Deborah L.
Collins. Dkt. No. 6.
Hoskins states that he was scheduled for a “90 day speedy trial” on the morning of May 9,
2022. Id. at 3; see also Wis. Stat. §971.10(2)(a). The accuser was not present, so, after calling the
accuser, Ertl and Piotrowski agreed to continue the matter to the afternoon and, when the accuser
still failed to appear, to the following day. Dkt. No. 6 at 3. The accuser was still not present the
next day, so the trial did not occur. Id. Instead, the state court judge ordered Hoskins to submit to
a competency evaluation, at the request of counsel, and “tolled” the speedy trial clock pending
completion of the competency evaluation. Id.; see Wis. Stat. §971.10(3)(a); see also CCAP, supra.
According to the docket, the state court held then hearings on June 9 and July 11, 2022 to
review competency evaluations drafted by Collins and Deboer and found that Hoskins lacked
substantial capacity to understand court proceedings or to assist in his own defense. See CCAP,
supra. On July 11, 2022, the judge suspended the trial, pursuant to Wis. Stat. §971.14(5)(a), and
ordered Hoskins committed to the Department of Health and Family Services for institutional care
in order to restore competency within the statutory time frame. Id. Hoskins then filed a motion

3
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 3 of 8 Document 19

for a speedy trial, and the judge denied the motion on October 14, 2022, explaining that that case
was suspended until January 10, 2023, so time limits were tolled. Id.; see also Wis. Stat.
§971.14(5)(a) (“If the court determines that the defendant is not competent but is likely to become
competent within the period specified in this paragraph if provided with appropriate treatment, the
court shall suspend the proceedings and commit the defendant to the custody of the department for
treatment for a period not to exceed 12 months, or the maximum sentence specified for the most
serious offense with which the defendant is charged, whichever is less.”). On January 10, 2023,
the state court held a review hearing, found Hoskins competent to proceed, and reinstated
proceedings, including the previous cash bail. See CCAP, supra.
Hoskins states that the speedy trial demand would have expired on June 1, 2022 (had the
Court not suspended it), and he still has not had a trial. Dkt. No. 1 at 2-3. He alleges that Ertl and
Piotrowski have “conspired” with Collins and Deboer to violate his right to a speedy trial. Id. at
4-5. Hoskins seeks monetary damages and asks that “both lawyers and both doctors be removed
from their post.” Id. at 5.
THE COURT’S ANALYSIS
“To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that he or she
was deprived of a right secured by the Constitution or the laws of the United States, and that this
deprivation occurred at the hands of a person or persons acting under the color of state law.” D.S.
v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). Section 1983 limits liability to individuals who
are personally responsible for a constitutional violation. Burks v. Raemisch, 555 F.3d 592, 59394 (7th Cir. 2009). “An official satisfies the personal responsibility requirement of section 1983.
. . if the conduct causing the constitutional deprivation occurs at [his] direction or with [his]

4
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 4 of 8 Document 19

knowledge and consent.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (quoting
Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). He or she “must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye.” Id. (quoting Jones v. City of Chicago,
856 F.2d 985, 992 (7th Cir. 1988)).
The Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial.” Hart v. Mannina, 798 F.3d 578, 596 (7th Cir. 2015) (internal
quotations and citation omitted). The speedy trial right attaches when an individual is “indicted,
arrested, or otherwise officially accused.” Id. Whether the right to a speedy trial has been violated
depends on four factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether the
individual asserted his right to a speedy trial, and (4) any prejudice the individual suffered by the
delay. Id. (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
Hoskins’ efforts to pursue speedy trial claims against the defendants in this case fail for a
variety of reasons. As an initial matter, Hoskins has not plausibly alleged facts supporting a
conspiracy. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (noting that conspiracy is not
an independent basis for liability under §1983; instead, it requires that the plaintiff show an
underlying constitutional violation and demonstrate that the defendants agreed to cause the
constitutional harm.); see also Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018) (noting that
a §1983 conspiracy claim requires allegations that the defendants reached an agreement to deprive
the plaintiff of his constitutional rights and that a member of the conspiracy took an overt act to
deprive him of those rights.) Hoskins does not allege anything from which the Court can
reasonably infer that the defendants “reached an agreement” to deprive him of his constitutional
rights. Because he has not properly alleged a conspiracy, he has no cognizable §1983 claim against
his criminal defense attorney Ertl. Absent a properly alleged conspiracy or similar allegations, a

5
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 5 of 8 Document 19

criminal defense attorney is simply not a “state actor” for purposes of §1983. See Agrawal v.
Pallmeyer, 313 Fed. Appx. 866, 868 (7th Cir. 2009).
Similarly, Hoskins has no claim against Piotrowski, the prosecutor assigned to Hoskins’
criminal case. As prosecutor, Piotrowski is entitled to absolute immunity for acts “intimately
associated with the judicial phase of the criminal process,” like stipulating to a continuance when
the accuser is not available and stipulating to a competency evaluation. See Imbler v. Pachtman,
424 U.S. 409, 430–31 (1976). Hoskins allegations against Piotrowski relate solely to acts
associated with the judicial phase of the criminal process and, as a result, are barred by
prosecutorial immunity.
With respect to Hoskins’ claims against Collins and Deboer, a state court judge ordered
them to complete competency evaluations by June 9, 2022 and July 11, 2022 (respectively), and
they timely complied with the judge’s order. See CCAP, supra. Their compliance with state court
deadlines is not a plausible basis for Collins and Deboer to be held personally responsible for any
speedy trial issues. Further, as noted above, there also are no allegations from which the Court
can reasonably infer that Collins’ and Deboer’s competency evaluations were influenced by Ertl
or Piotrowski. A state court judge ultimately suspended Hoskins’ criminal trial because he lacked
competence to stand trial and the judge is entitled to absolute immunity for that judicial act. See
Polzin v. Gage, 636 F.3d 834 (7th Cir. 2011); see also Firkins v. Nester, No. 17-CV-362-MJR,
2017 WL 2378194, at *3 (S.D. Ill. June 1, 2017) (dismissing a Sixth Amendment claim at
screening because “[w]ithout a doubt, [a judge’s] responses to Plaintiff's motions filed in state
court, and his decisions on the scheduling and postponements of Plaintiff's [criminal] trial dates,

6
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 6 of 8 Document 19

are judicial acts” entitled to absolute immunity). Hoskins therefore fails to state a claim upon
which relief can be granted and the Court will dismiss this case. 1
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 2) is GRANTED.
IT IS FURTHER 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.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a “strike” under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall collect
from his institution trust account the $264.58 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, 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 the Clerk of Court enter judgment accordingly.

The United States Supreme Court has stated that dismissal of criminal charges is the “only possible remedy” for
violation of a right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 522-23 (1972). But the Seventh Circuit has
since noted that Barker was “a direct criminal appeal where the prosecutor had argued that less drastic remedies such
as applying the exclusionary rule to certain evidence or granting a new trial would be more appropriate than outright
dismissal.” Hart v. Mannina, 798 F.3d 578, 595 n.4 (7th Cir. 2015). According to the Seventh Circuit, “[t]he
[Supreme] Court had no occasion to consider whether damages are available in a civil case under §1983.” Id. Thus,
it still remains unclear whether monetary damages are even available under these circumstances.
1

7
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 7 of 8 Document 19

IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined and emailed to [e-mail].
Dated at Milwaukee, Wisconsin on January 18, 2023.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
This order and the judgment to follow are final. Plaintiff 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. 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 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
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. 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 judgment. The Court cannot extend
these deadlines. 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.

8
Case 2:22-cv-00873-BHL Filed 01/18/23 Page 8 of 8 Document 19