Hying v. Hodges et al

Filing 41

ORDER signed by Judge J P Stadtmueller on 5/8/2024. 40 Plaintiff's Motion for Hearing is DENIED. 31 Defendants Anna Maria Hodges and Denita R Ball's Motion to Dismiss is GRANTED; these defendants are DISMISSED from this action. 28 Defendants Carl Ashley, Dennis Flynn, Audrey Skwierawski, and Annette K Ziegler's Motion to Dismiss is GRANTED; these defendants are DISMISSED from this action. The following claims are DISMISSED with prejudice: Plaintiff's right t o petition/right to access claim; Plaintiff's claim of unlawful detention form 8/14/2023-8/17/2023; Plaintiff's claim for malicious prosecution; Plaintiff's claim regarding Wisconsin's use of diploma privilege; Plaintiff's cl aims regarding abuse of authority/process. The following claim is DISMISSED without prejudice: Plaintiff's false arrest claim. Clerk of Court is DIRECTED to add John Does to the docket as a placeholder defendant. By 5/29/2024, Plaintiff to FILE an amended complaint as provided; failure to timely do so will result in dismissal of this action. See Order. (cc: all counsel, via mail to Martin Hying with non-prisoner amended complaint form)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARTIN HYING,
Plaintiff,
v.
ANNA MARIA HODGES, DENITA
R. BALL, DENNIS FLYNN, CARL
ASHLEY, AUDREY SKWIERAWSKI,
and ANNETTE K. ZIEGLER,

Case No. 23-CV-1361-JPS-JPS

ORDER

Defendants.

1.

INTRODUCTION
In October 2023, Plaintiff Martin Hying (“Plaintiff”) sued Anna

Maria Hodges (Clerk of Milwaukee County Circuit Court) (“Hodges”),
Denita R. Ball (Milwaukee County Sheriff) (“Ball”), Dennis Flynn (thenreserve circuit court judge in Milwaukee County) (“Flynn”), Carl Ashley
(Chief Judge of Milwaukee County Circuit Court) (“Ashley”), Audrey
Skwierawski (Interim Director of Wisconsin State Courts) (“Skwierawski”),
and Annette K. Ziegler (Chief Justice of Wisconsin Supreme Court)
(“Ziegler”). ECF No. 1. He purports to sue for, inter alia, violation of his
First Amendment right to petition his government, for “false arrest,
detainment, invalid use of legal authority, and abuse of process,” and
malicious prosecution. Id. at 2–4.
Defendants Ashley, Flynn, Skwierawski, and Ziegler (the “State
Defendants”), as well as Ball and Hodges (the “County Defendants”), move
to dismiss the claims against them. ECF Nos. 28, 31. For the reasons

discussed herein, the Court grants both the State Defendants’ and County
Defendants’ motions to dismiss, but grants Plaintiff leave to amend his
complaint to attempt to state a conditions-of-confinement claim and a claim
for unlawful detention from August 17, 2023 to August 21, 2023, as
discussed herein. Plaintiff also moves “for [a] hearing, but the filing is, in
substance, more akin to an unauthorized sur-reply to the briefing on
Defendants’ motions to dismiss. ECF No. 40.1 The Court will accordingly
deny that motion.
2.

LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) provides for dismissal of

complaints which, among other things, fail to state a viable claim for relief.
Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint must provide “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). In other words, the complaint must give “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)). The allegations must “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a speculative level.”
Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (quoting EEOC v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). In reviewing
the complaint, the Court is required to “accept as true all of the wellpleaded facts in the complaint and draw all reasonable inferences in favor
of the plaintiff.” Kubiak, 810 F.3d at 480–81.

The motion also attempts to re-hash arguments regarding Flynn’s status
as a reserve judge. The Court has already addressed such arguments and rejected
them. ECF No. 27.
1

Page 2 of 34

3.

FACTUAL BACKGROUND
Plaintiff’s complaint relates to his “civil family lawsuit, Milwaukee

County case 2006FA6891,” which at separate points was overseen by Judges
Ashley and Flynn. ECF No. 1 at 2; see also In Re: The Marriage of Kimberly C.
Hying and Martin B. Hying, Milwaukee County Circuit Court Case No.
2006FA006891,

available

at

https://wcca.wicourts.gov/caseDetail.html?caseNo=2006FA006891&county
No=40 (last visited May 8, 2024) (hereinafter “Case No. 2006FA6891”).2
Plaintiff and his then-spouse were granted a divorce in November 2007. The
docket reflects that Plaintiff continues to owe a money judgment imposed
in June 2009; that he repeatedly failed to pay as ordered guardian ad litem
fees and attorney’s fees; that he was on multiple occasions found in
contempt for nonpayment, including in March 2010, February 2011,
November 2014, and August 2015; that he was subjected to escalating
contempt sanctions, including imposition of a six-month jail sentence; that
he was on multiple occasions “denied permission to proceed . . . [on]
appeal” and that the appellate court clerk was at one point instructed to
take “[n]o further action . . . on [Plaintiff’s] filings”; and that he was on
The Court takes judicial notice of this state court case and the docket
entries therein for purposes of contextualizing Plaintiff’s claims and providing
relevant background. Ennenga v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012) (“A
court may take judicial notice of facts that are (1) not subject to reasonable dispute
and (2) either generally known within the territorial jurisdiction or capable of
accurate and ready determination through sources whose accuracy cannot be
questioned . . . . Here, the court took judicial notice of the dates on which certain
actions were taken or were required to be taken in the earlier state-court
litigation—facts readily ascertainable from the public court record and not subject
to reasonable dispute.” (citing Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d
1074, 1081 (7th Cir. 1997) and Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.
1994) (noting that judicially-noticed matters of public record may be considered
on a motion to dismiss)).
2

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several occasions subject to commitment orders, which could be purged
upon payment of the sums owed. The most recent entries on the docket for
Case No. 2006FA6891 reflect an August 21, 2023 order cancelling the
commitment order and warrant/capias against Plaintiff. Case No.
2006FA6891.
Plaintiff alleges in the instant case that when he attempted to file
documents in Case No. 2006FA6891 at approximately noon on August 14,
2023, an unnamed Milwaukee County Circuit Court clerk noted the case
number, returned the papers to him, left his view, and ceased assisting him
for a period of 5–10 minutes. ECF No. 1 at 2. No other staff attended to him
during this time, although staff assisted other individuals at the same
window. Id. Shortly thereafter, Plaintiff alleges that two non-party
Milwaukee County Sheriff’s Deputies appeared and arrested him, claiming
that the computer indicated that “there [wa]s a warrant for [him].” Id.
Plaintiff alleges that he was ordered to surrender his papers and
belongings and was handcuffed, searched, and booked into the Milwaukee
County Jail, purportedly for reasons unknown to him, although he later
acknowledges that he was subject to a “commitment order” which he
describes as “invalid.“ Id. at 3, 4. Plaintiff alleges that at no point during his
arrest did “anyone indicate . . . why a warrant would preclude [the] filing
of any papers in [his] court case.” Id. at 2.
The County Defendants have filed a copy of the “Warrant Detail,”
issued on July 18, 2022 and with an expiration date of July 14, 2024.3 ECF
“In addition to the allegations set forth in the [c]omplaint itself,” the court
may consider on a motion to dismiss “documents that are attached to the
complaint, documents that are central to the complaint and are referred to in it,
and information that is properly subject to judicial notice.” O’Brien v. Village of
Lincolnshire, 955 F.3d 616, 621 (7th Cir. 2020) (quoting Williamson v. Curran, 714
3

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No. 32-2. The document lists the subject as “Hying, Martin B” and
authorizes a sixty-day commitment at “HOC or Racine County w/ Huber
privileges”4 for “contempt of court” for “failure to pay.” Id. It also states:
“$9,480 purge (plus fees) due and owing.” Id.
Plaintiff also alleges that during and following his arrest he was
denied access to his “communications devices,” was unjustifiably
disallowed from transferring to Racine County Jail, disallowed from
exercising his Huber privileges, deprived of food for 24 hours, and
inexplicably placed in isolation in “infested, unclean cell[s].” ECF No. 1 at
3–4. He asserts that “[o]nly after 52 hours passed after [his] initial arrest was
[he] finally able to contact someone” outside the jail. Id. at 3. He asserts that
this treatment “constitutes cruel and unusual punishment [in] violation of
[his] 8th and 14th [A]mendment rights.” Id. He also claims that he “was
intentionally moved around to ensure that it would be difficult” for him to
exercise his legal rights. Id.
Plaintiff alleges that on August 17, 2023, he paid the $9,480 owed to
his “ex-wife’s attorney” to purge the commitment order so that he could be
released but that he nevertheless “remained incarcerated” and was not
released until August 21. Id. at 4. Plaintiff questions why his payment was
not promptly “forwarded” from the Clerk of Court to his ex-wife’s attorney

F.3d 432, 436 (7th Cir. 2013)). The warrant is central to and referred in the
complaint. Accordingly, the Court may consider it at the motion to dismiss stage.
Huber privileges refers to work release. See Jackson v. Jail, No. 23-cv-214jdp, 2023 U.S. Dist. LEXIS 76365, at *1 (W.D. Wis. May 1, 2023) (“The ‘Huber law,’
Wis. Stat. § 303.08, ‘governs work release privileges for Wisconsin county jail
inmates.’ . . . Huber prisoners may be housed in minimum security dormitories
and permitted to work at regular outside employment during daytime hours.”
(quoting Domka v. Portage County, 523 F.3d 776, 778 (7th Cir. 2008) and citing Kish
v. Milwaukee County, 441 F.2d 901, 903 n.10 (7th Cir. 1971))).
4

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and speculates that the delay was attributable both to “underqualified
participants” in the state court system and to their desire to “deprive [him]
of [his] liberties to obtain their proverbial pound of flesh from [him].” Id.
Plaintiff avers that he submitted citizen complaint grievances regarding this
situation on August 24, 2023 but that no disposition of his complaints has
ever resulted. Id. He also alleges that he filed a notice of claim “with the
Attorney General via certified mail.” Id.
According to Plaintiff, the “Director of state courts intentionally
allows” under- and unqualified personnel to access the court computer
system to create false records. Id. Plaintiff alleges that this has been
happening “for years” in Case No. 2006FA6891 under the “supervision and
approval” of Ashley. Id. Plaintiff alleges that Ashley “refuses to
administratively assign [his] case to a legitimate state court branch” and has
“fabricated false records” regarding Case No. 2006FA6891. Id. at 4 & n.2. He
also alleges that Flynn is “neither an elected nor gubernatorially appointed
judge” and therefore cannot exercise judicial authority over Case No.
2006FA6891. Id. at 4, 5.
As relief, Plaintiff asks, inter alia, that the Court enforce his “first
amendment right to petition [his] state government by allowing him” to file
papers in Case No. 2006FA6891; that the Court instruct the parties and the
Wisconsin State Court system to comply with Wisconsin constitutional and
legislative mandates regarding “judge subcategories and corresponding
appointment limitations”; that the Court order “the immediate return of
the” sum Plaintiff paid to his ex-wife’s attorney, as well as the return of “all
costs, fees, and payments collected” in Case No. 2006FA6891 “since [] Flynn
first started impersonating a reserve judge in th[at] case”; and that the Court
declare “Wisconsin’s archaic and outdated practice of Diploma Privilege to
Page 6 of 34

be unconstitutional” and impose a bar passage requirement as a requisite
to both the practice of law and judicial service in Wisconsin. Id. at 5–6.
4.

LITIGATION HISTORY
The Court takes the opportunity to note that this not the first time

that Plaintiff has brought concerns related to Case No. 2006FA6891, and
related to the Wisconsin State Judiciary in general, before this District. In
March 2016, he sued, inter alia, Flynn and Ashley, similarly alleging an
unlawful denial of his access to the state courts and an “unlawful
detainment.” See Martin Hying v. Carl Ashley et al., No. 2:16-CV-00313-DEJ
(E.D. Wis. 2016), ECF No. 1 (“Case No. 2:16-CV-00313-DEJ”). He therein
took issue with a myriad of actions taken in Case No. 2006FA6891 by Flynn
and Ashley, including an alleged refusal to transfer records to the Court of
Appeals and alleged falsification of court records. Id. at 6, 8. In March 2017,
Magistrate Judge David E. Jones granted Defendants’ motions to dismiss
that case, concluding that Flynn and Ashley were subject to judicial
immunity. Id., ECF No. 21 at 7–11.
Plaintiff again sued Flynn, among others, in September 2021. See
Martin Hying v. Dennis Flynn et al., No. 2:21-CV-001129-BHL (E.D. Wis.
2021), ECF No. 1 (“Case No. 21-CV-001129-BHL”). In that case, Plaintiff
again alleged falsification of records, as well as ex parte communications,
“non-jurisdictional hearings,” and bias against him as a pro se party in Case
No. 2006FA6891. Id. at 4. He also attempted to raise a claim related to
Wisconsin’s diploma privilege practice. Id. at 4–5 (referencing “an
underqualified judiciary that practices via diploma privilege” which
practice “should be declared unconstitutional”). In March 2022, Judge Brett
Ludwig granted Defendants’ motions to dismiss and dismissed the case on

Page 7 of 34

the merits, relying in part on the application of judicial immunity. Id., ECF
No. 20 at 2.
5.

ANALYSIS
5.1

The Attempt at Filing

The Court first addresses Plaintiff’s allegation that an unnamed
Milwaukee County Circuit Court clerk5 unconstitutionally denied him
access to the courts when the clerk failed to file the papers he provided to
her for filing in Case No. 2006FA6891. For the reasons discussed herein, the
Court will dismiss this claim with prejudice for failure to state a claim.
“The right of access to the courts is the right of an individual,
whether free or incarcerated, to obtain access to the courts without undue
interference.” Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004). “[E]fforts by
state actors to impede an individual’s access to courts . . . may provide the
basis for a constitutional claim under 42 U.S.C. § 1983.” Vasquez v.
Hernandez, 60 F.3d 325, 328 (7th Cir. 1995).
The Court first addresses the County Defendants’ contention that the
domestic relations exception, or, alternatively, the Rooker-Feldman doctrine,
precludes the Court from addressing this claim.6 “[T]he Rooker-Feldman

Although Plaintiff names Hodges as a Defendant, he does not claim that
she was the clerk who failed to file his papers. He alleges no personal involvement
whatsoever on her part in the events at issue. It is not enough that a defendant’s
subordinates allegedly committed constitutional violations, for even supervisory
liability requires personal involvement on the part of the supervisor defendant.
Milchtein v. Milwaukee County, 42 F.4th 814, 824 (7th Cir. 2022) (citing Gill v. City of
Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017)). On this basis alone, the claim—to the
extend it was even directed at Hodges—can be dismissed.
5

County Defendants did not address the merits of any of Plaintiff’s asserted
claims for relief, relying instead on the argument that the Court lacks jurisdiction
to hear those claims and on the argument that neither of the named County
6

Page 8 of 34

doctrine bars federal jurisdiction when the federal plaintiff alleges that her
injury was caused by a state court judgment.” Remer v. Burlington Area Sch.
Dist., 205 F.3d 990, 996 (7th Cir. 2000) (citing Long v. Shorebank Dev. Corp.,
182 F.3d 548, 554 (7th Cir. 1999); Centres, Inc. v. Town of Brookfield, 148 F.3d
699, 702 (7th Cir. 1998); and Garry v. Geils, 82 F.3d 1362, 1365–66 (7th Cir.
1996)). Meanwhile, “the domestic-relations exception to federal jurisdiction
blocks federal adjudication of cases involving ‘divorce, alimony, and child
custody decrees.’” Syph v. Arce, 772 F. App’x 356, 357 (7th Cir. 2019)
(quoting Marshall v. Marshall, 547 U.S. 293, 307–08 (2006)).
The County Defendants contend that these doctrines preclude the
Court’s consideration of Plaintiff’s right to access claim because they
believe Plaintiff is “ask[ing] this Court [to] ‘intervene in a contested
domestic-relations matter that has been reserved to the state court’” and
because “the only injuries of which he complains all arise from his [f]amily
[l]aw [c]ase . . . .” ECF No. 32 at 4–5 (quoting Zawistowski v. Kramer, 820 F.
App’x 481, 483 (7th Cir. 2020)).
It is true that the Court is precluded from exercising “federal
jurisdiction over claims ‘inextricably intertwined’ with a state court
determination.” Remer, 205 F.3d at 996 (citing D.C. Ct. of Appeals v. Feldman,
460 U.S. 462, 483–84 n.16 (1983); Long, 182 F.3d at 554; and Centres, Inc., 148
F.3d at 702). But “it can be difficult to discern which claims are and which
claims are not ‘inextricably intertwined’ with a state judgment,” and the
County Defendants fail not only to meaningfully engage with that aspect of
the analysis, but to acknowledge it at all in their roughly five-page brief. Id.

Defendants were personally involved in the events at issue. See generally ECF No.
32.

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(citing Centres, Inc., 148 F.3d at 702 and Ritter v. Ross, 992 F.2d 750, 754 (7th
Cir. 1993)). “[T]he crucial point” with respect to that aspect of the analysis
is “whether ‘the district court is in essence being called upon to review the
state-court decision.’” Id. (quoting Ritter, 992 F.2d at 754).
Whether Plaintiff’s right to access claim is truly “an independent
claim,” id. (quoting Long, 182 F.3d at 555), does not appear to be as black
and white as the County Defendants would have the Court believe. They
insist that Plaintiff’s injuries arose, with respect to this right to access claim,
from the state court’s commitment order. ECF No. 32 at 4–5. But neither
Plaintiff nor the County Defendants suggests that the commitment order
simultaneously functioned as a filing bar such that by its operation Plaintiff
would not only be subject to incarceration, but also that he would be
prohibited from filing in that case. Indeed, the document itself, ECF No. 322, makes no note of such a restriction. In other words, it is not at all clear
that Plaintiff’s right to access claim is “inextricably intertwined” with the
state court’s judgment. Remer, 205 F.3d at 996. Nevertheless, in light of the
ambiguity of that analysis, and because the Court, as discussed infra, can
dispose of this claim on alternative grounds, the Court sets aside the County
Defendants’ Rooker-Feldman and domestic relations exception arguments
for the time being.
Notwithstanding the absence of briefing on the matter, the Court
turns to the elements of the right to access claim itself. See supra note 6.
“[W]hen a plaintiff alleges a denial of the right to access-to-courts, he must
usually plead specific prejudice to state a claim, such as by alleging that he
missed court deadlines, failed to make timely filings, or that legitimate
claims were dismissed because of the denial of reasonable access to legal
resources.” Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003), abrogated
Page 10 of 34

on other grounds by Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008); In re
Maxy, 674 F.3d 658, 660–61 (7th Cir. 2012) (“[T]o satisfactorily state a claim
for infringement of the right to access, [plaintiffs] must also allege an actual
injury. . . . That is, they must allege that some action by the [defendant] has
frustrated or is impeding an attempt to bring a nonfrivolous legal claim.”
(collecting cases)). And indeed, the prejudice to be alleged must relate to
the underlying case, for right to access “cases rest on the recognition that
the right is ancillary to the underlying claim, without which a plaintiff
cannot have suffered injury by being shut out of court.” Christopher v.
Harbury, 536 U.S. 403, 414–15 (2002) (“[T]he very point of recognizing any
access claim is to prove some effective vindication for a separate and
distinct right to seek judicial relief for some wrong.”).
The right to access the courts, in other words, does not protect one’s
ability to file unsolicited, frivolous documents, and Plaintiff’s complaint
does not suggest that he was attempting to do otherwise. See Bill Johnson’s
Rests. v. NLRB, 461 U.S. 731, 743 (1983) (“[B]aseless litigation is not
immunized by the First Amendment right to petition.”); Lewis v. Casey, 518
U.S. 343, 353 n.3 (1996) (“Depriving someone of an arguable . . . claim inflicts
actual injury because it deprives him of something of value . . . . Depriving
someone of a frivolous claim, on the other hand, deprives him of nothing at
all . . . .”).
Plaintiff initially describes the intended filing simply as a “motion.”
ECF No. 1 at 5. He later clarifies that the motion related to his “standing
challenge of whether . . . Flynn” was “eligible to adjudicate [his] case.” ECF
No. 34 at 4. Considering the entirety of this record, along with the
circumstances of Case No. 2006FA6891 of which the Court takes judicial
notice, as well as the Court’s previous order rejecting Plaintiff’s repeated
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contentions regarding Flynn’s status as reserve judge, ECF No. 27,7 allows
only for the conclusion that the “papers” that Plaintiff intended to file were
frivolous. Because he fails to plausibly allege that the unnamed clerk’s
failure to file his papers prejudiced him with respect to some legitimate,
non-frivolous action he sought to undertake in Case No. 2006FA6891, he
fails to state a claim for unconstitutional denial of his access to the courts.
See Kaprelian v. Barrett, No. 14-CV-546, 2015 U.S. Dist. LEXIS 6110, at *9–10
(E.D. Wis. Jan. 20, 2015) (“Plaintiff’s access-to-courts claim appears to be
flawed because Plaintiff has failed to show how the alleged interference
precluded him from litigating a meritorious claim.”), aff’d on other grounds,
607 F. App’x 583 (7th Cir. 2015).
But irrespective of this deficiency, the viability of this claim would
nevertheless be tenuous. In Snyder, the Seventh Circuit addressed the
plaintiff’s allegation that a court clerk unconstitutionally denied him access
to the courts when the clerk removed the plaintiff’s technically compliant
pleadings from the docket and returned them to the plaintiff, refusing to
allow their filing. 380 F.3d 279.
In analyzing whether such an allegation stated a constitutional
claim, the Seventh Circuit concluded that “the constitutional right to
access” is not “sufficiently broad to encompass” the plaintiff’s claim. Id. at
291. Because there existed “avenues to correct” this “mistake[],” the
plaintiff had not been unconstitutionally denied access to the courts. Id. at
292 (Easterbrook, J., concurring) (“How can [the clerk’s] act . . . be thought

The Court therein concluded that Flynn appeared to have been properly
appointed as a reserve judge. ECF No. 27 at 3 & n.2.
7

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to deprive anyone of ‘access’ to the courts, given the litigant’s opportunity
to ask a judge to direct the clerk to accept and file the paper?”).
Similarly, Plaintiff was not unconstitutionally denied access to the
courts because there remained avenues in the state court system to attempt
to correct the clerk’s failure to file his papers. Kaprelian, 2015 U.S. Dist.
LEXIS 6110, at *9 (“He was able to petition the Wisconsin Supreme Court
for relief. . . . [E]ven assuming someone in the clerk’s office expressly
refused to file an otherwise proper [filing], the availability of a writ of
mandamus under Wisconsin law provides an adequate remedy to
Plaintiff.” (citing Wis. Stat. §§ 809.51, 809.71 and Snyder, 380 F.3d at 292)).
In other words, even if Plaintiff had sufficiently pleaded the
prejudice aspect of a right to access claim, Snyder would appear to
nevertheless bar Plaintiff’s claim that the unnamed Milwaukee County
Circuit Court clerk violated his constitutional rights by not filing his papers
in Case No. 2006FA6891. And because this is not an issue that Plaintiff could
resolve through amendment of his complaint, the Court may dismiss this
claim with prejudice outright without granting leave to amend. Doe v.
Village of Arlington Heights, 782 F.3d 911, 919 (7th Cir. 2015) (citing McCoy v.
Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014)).
5.2

The Arrest

Plaintiff also alleges that he was subjected to an unconstitutional
false arrest when two non-party Milwaukee County Sheriff’s Deputies
arrested him on August 14, 2023. ECF No. 1 at 2. For the reasons discussed
herein, the Court is satisfied that this claim is inextricably intertwined with
the state court’s judgment in Case No. 2006FA6891 such that the Court lacks
jurisdiction to review it and that, in any event, it would fail for failure to
state a claim.
Page 13 of 34

Plaintiff was arrested after the unnamed clerk, presumably having
discovered Plaintiff’s identity and the commitment order to which he was
subject by looking up his case, called for law enforcement. Id. (“[T]wo
Milwaukee County Sheriff’s deputies . . . appeared . . . informing [Plaintiff]
they were called by the clerk’s office to arrest [him].”). Plaintiff does not
dispute that he was subject to a commitment order imposed by the state
court for nonpayment in Case No. 2006FA6891. Id. at 4 (acknowledging
commitment order). By challenging his arrest pursuant to that commitment
order, Plaintiff challenges the validity or legitimacy of the commitment
order itself. Rooker-Feldman prohibits the Court from entertaining such a
challenge. See Ali Nadzhafaliyev v. Dyslin, No. 19 C 2590, 2021 U.S. Dist.
LEXIS 175840, at *4–7 (N.D. Ill. Sept. 16, 2021) (“Plaintiff’s injury—his civil
commitment—is inextricably intertwined with the state court’s orders
finding him in need of inpatient mental health services. . . . Plaintiff’s claims
that he was wrongfully detained directly challenge the state court’s
commitment order. . . . [T]his claim boils down to a request that the Court
review the state court’s conclusion, which the Court cannot do under
Rooker-Feldman.” (citations omitted)). That conclusion requires that the
Court dismiss Plaintiff’s false arrest claim “for lack of federal jurisdiction.”
Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (“When the
Rooker-Feldman doctrine applies, there is only one proper disposition:
dismissal for lack of federal jurisdiction. . . . [T]he plaintiff cannot refile in
federal court.” (citing T.W. v. Brophy, 124 F.3d 893, 898 (7th Cir. 1997))).
Even if the Court had jurisdiction to consider this claim, however,
the Court would nevertheless conclude that Plaintiff fails to state a false
arrest claim. First, none of the individuals that Plaintiff names as
Defendants were personally involved in the arrest, and “[t]o be liable for a
Page 14 of 34

false arrest, a defendant must have been personally involved in the
wrongful arrest either by making the arrest himself or by causing it to
happen . . . .” Jordan v. Krausz, No. 17-cv-434-JPG-DGW, 2017 U.S. Dist.
LEXIS 191634, at *7 (S.D. Ill. Nov. 20, 2017) (citing Acevedo v. Canterbury, 457
F.3d 721, 723 (7th Cir. 2006)). Plaintiff names Ball—Milwaukee County
Sheriff—as a Defendant, but he does not suggest that she had any personal
involvement in his arrest.
Moreover, to state a claim for false arrest, the plaintiff must allege
that “there was no probable cause for his arrest.” Thayer v. Chiczewski, 705
F.3d 237, 246 (7th Cir. 2012) (citing Williams v. Rodriguez, 509 F.3d 392, 398
(7th Cir. 2007)). The same is true with respect to a seizure under a
commitment order. Gutierrez v. May, No. 91-3448, 1993 U.S. App. LEXIS
21915, at *5–6 (7th Cir. Aug. 25, 1996) (“A civil commitment is a seizure and,
like an arrest, may be made only upon probable cause.” (citing Villanova v.
Abrams, 972 F.2d 792, 795 (7th Cir. 1992))).
Plaintiff not only fails to plead an absence of probable cause, but his
allegations concede its existence. “Probable cause exists if ‘at the time of the
arrest, the facts and circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.’” Thayer, 705 F.3d at 247
(quoting Gonzalez v. City of Elgin, 578 F.3d 526, 537 (7th Cir. 2009)). “This is
an objective inquiry; we do not consider the subjective motivations of the
officer.” Id. (citing Whren v. United States, 517 U.S. 806, 810 (1996)).
Generally, “a person arrested pursuant to a facially valid warrant
cannot prevail on a § 1983 claim of false arrest.” Williamson, 714 F.3d at 441–
42 (citing Brooks v. City of Aurora, 653 F.3d 478, 483 n.5 (7th Cir. 2011) and
Page 15 of 34

Juriss v. McGowan, 957 F.2d 345, 350 (7th Cir. 1992)). “[T]his is so even if the
arrest warrant is later determined to have an inadequate factual
foundation.” Id. at 443 (quoting Juriss, 957 F.2d at 350–51 and collecting
cases); see also Brooks v. City of Chicago, 564 F.3d 830, 832 (7th Cir. 2009) (“The
existence of an outstanding warrant supports probable cause for an arrest.”
(citing United States v. Thornton, 463 F.3d 693, 698 (7th Cir. 2006) and Juriss,
957 F.2d at 350)). An exception exists where the arresting officers knew that
the arrest warrant was not supported by probable cause. Juriss, 957 F.2d at
350–51 (citing Malley v. Briggs, 475 U.S. 335, 345 (1986) and Olson v. Tyler,
771 F.2d 277, 281 (7th Cir. 1985)); Walsh v. Kaluzny Bros., No. 14 C 3412, 2017
U.S. Dist. LEXIS 68056, at *22 (N.D. Ill. May 4, 2017) (“In order to state a
claim for false arrest when the arrest is made pursuant to a warrant, the
plaintiff must show that the warrant was facially invalid or that the officers
who made the arrest knew that the warrant was issued without probable
cause.” (citing Williamson, 714 F.3d at 444)).
Plaintiff concedes that the arresting deputies purported to arrest him
based on a warrant they discovered on “the computer.” ECF No. 1 at 2.
Plaintiff alleges that no one showed him a copy of this warrant, but he does
not allege that the arresting deputies, notwithstanding their reference to the
warrant, knew that they lacked probable cause to arrest him or that the
warrant was facially invalid.8 And as noted supra Section 5.1, Plaintiff
concedes to the existence of the commitment order to which he was subject,
Plaintiff alleges that “the computer records used by the plaintiffs [sic] and
their subordinates were knowingly and intentionally falsified by underqualified
and unqualified members of the Wisconsin judicial system,” ECF No. 1 at 4, but
that is not the same as pleading that the arresting deputies knew that the computer
records were falsified, and it is also not the same as pleading that the warrant was
facially invalid.
8

Page 16 of 34

and the Court has taken judicial notice of the fact that such an order was
issued against Plaintiff in Case No. 2006FA6891 in July 2022 and was not
canceled until August 21, 2023. The only reasonable inference to be drawn
from both Plaintiff’s allegations, the state court record, and the warrant
itself, ECF No. 32-2, is that the arresting deputies objectively had probable
cause to arrest him.
For all these reasons, Plaintiff’s false arrest claim is subject to
dismissal without prejudice for lack of jurisdiction.
5.3

The Subsequent Detention

In addition to claiming that his arrest was unconstitutional, Plaintiff
alleges that he was subsequently “illegally detained”9 in the Milwaukee
County House of Correction and that the conditions of his detention
constituted cruel and unusual punishment. ECF No. 1 at 3.
5.3.1

The Detention Itself

“Claims of unlawful pretrial detention all fall under the Fourth
Amendment.” Crowder v. Barrett, No. 22-1899, 2023 U.S. App. LEXIS 10461,
at *9–10 (7th Cir. Apr. 28, 2023) (citing Manuel v. City of Joliet, 580 U.S. 357
(2017) and Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. 2019)). “Arrest
and detention are seizures under the Fourth Amendment and therefore
must be justified by probable cause for their entire duration.” Id. at 10 (citing
Lewis, 914 F.3d at 476–77) (emphasis added). The Court will therefore
evaluate whether Plaintiff has sufficiently pleaded that he continued to be
detained without probable cause following his arrest.

Plaintiff again fails to name as a defendant—whether by name or as John
or Jane Does—any of the individuals who allegedly “illegally detained” him
following his arrest.
9

Page 17 of 34

At least for the time of his arrest to August 17, 2023, Plaintiff has not
sufficiently stated a claim that he was detained without probable cause.
Plaintiff concedes that when he asked officials why he continued to be
detained, they told him it was because “the computer said so,” presumably
referring to the warrant for Plaintiff’s commitment. ECF No. 1 at 4; ECF No.
32-2. He also concedes, and state court records reflect, that he continued to
owe unpaid sums required “to fulfill the purge requirements in the
commitment order.” ECF No. 1 at 4. Plaintiff did not tender the money
owed “to [his] ex-wife’s attorney” until Friday, August 17, 2023. Id. It would
therefore appear that authorities had probable cause to continue his
detention at least up to that point. The Court will therefore dismiss
Plaintiff’s claim that he was unlawfully detained from August 14, 2023 to
August 17, 2023 for failure to state a claim.
But the question remains whether he has stated a claim for unlawful
detention following his payment of the money owed on Friday, August 17,
2023, to Tuesday, August 21, 2023. Plaintiff alleges that even after he paid,
there was “an additional delay” such that he was not ultimately released
until four days later. Id. He alleges that these delays were attributable to
“underqualified participants . . . taking specific actions to deprive” him of
his liberties. Id. In other words, he alleges that even after he fulfilled the
requirements to purge the commitment order, individuals in the state court
system nevertheless intentionally delayed matters to violate his rights and
prolong his detention. Id.10

Although it is unclear at this juncture, it is entirely possible, indeed likely,
that this delay was attributable to standard administrative processing protocols.
Plaintiff does not specify to whom he tendered the payment, at what specific time,
or in what form; each of these factors could have contributed to the delay.
10

Page 18 of 34

The Court here pauses to address the County Defendants’ umbrella
argument that the Court should not consider any of the County Defendantrelated claims on grounds of either Rooker-Feldman or the domestic relations
exception. The Court does not believe that these doctrines deprive it of
jurisdiction to consider whether Plaintiff was unlawfully detained during
the above-noted four-day period. While Plaintiff’s arrest and initial
detention for nonpayment in Case No. 2006FA6891 could be deemed
“‘inextricably intertwined’ with a state court determination,” Remer, 205
F.3d at 996 (citation omitted), the continued detention following his
payment to purge the commitment order is more attenuated from the state
court’s actions. Indeed, it is not clear that Plaintiff’s continued detention is
attributable to any action or directive by the state court in Case No.
2006FA6891 at all. Plaintiff suggests that it was not—that he should have
been promptly released after purging the commitment order and that he
was not because unnamed individuals intentionally delayed matters to
“obtain their proverbial pound of flesh” from him. ECF No. 1 at 4.
Accordingly, the Court will conclude, at this juncture and on the record
now before it, that neither Rooker-Feldman nor the domestic relations
exception prevent the Court from considering this claim.
The fact still remains, however, as noted supra note 9, that none of
the Defendants named had any personal involvement in these allegations.
None of the Defendants—including Ball—can be held vicariously liable for
the allegedly unconstitutional actions of others. Garvin v. Armstrong, 236
F.3d 896, 899 (7th Cir. 2001) (citing Lanigan v. Village of East Hazel Crest, 110
F.3d 467 (7th Cir. 1997)). Plaintiff will accordingly be granted leave to
amend his complaint to identify as a defendant the individual(s)

Page 19 of 34

responsible for this limited period of allegedly unlawful confinement.
Rohler v. TRW, Inc., 576 F.2d 1260, 1266 (7th Cir. 1978).
5.3.2

The Conditions of the Detention

The Court now moves on to Plaintiff’s claim that the conditions of
his detention constituted cruel and unusual punishment in violation of his
Eighth Amendment rights. Rooker-Feldman does not prevent the Court’s
consideration of this claim. See Dopson v. Corcoran, No. 19-C-5077, 2020 U.S.
Dist. LEXIS 105790, at *17–18 (N.D. Ill. June 17, 2020) (“However, [the
plaintiff’s] allegations relating to his treatment during confinement are not
inextricably intertwined with the state court’s determinations because they
relate to the conditions of confinement. Rooker-Feldman does not bar such
claims.” (citing O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir. 2006))).
Plaintiff takes issue with various aspects of his confinement,
including that he was disallowed transfer to another facility, subject to
isolation, denied Huber privileges, inconveniently moved around, housed
in unclean cells, deprived of food for 24 hours, deprived of his
communication devices, and not allowed to contact anyone outside the jail
for 52 hours. ECF No. 1 at 3. He specifically alleges that “others in the cell
block were provided lunch and dinner meals in the common space,” but
that he was not provided food. Id. For the reasons discussed herein, Plaintiff
has failed to state a conditions-of-confinement claim, but the Court cannot
conclude—at least with respect to the alleged 24-hour deprivation of food
and the allegedly unclean and infested cells—that he necessarily cannot do
so. Accordingly, the Court will grant Plaintiff leave to amend on this claim.
“The Eighth Amendment prohibits the States from subjecting
prisoners to conditions of confinement amounting to cruel and unusual
punishment.” Giles v. Godinez, 914 F.3d 1040, 1051 (7th Cir. 2019) (citing
Page 20 of 34

Rhodes v. Chapman, 452 U.S. 337, 345–47 (1981)).11 However, “extreme
deprivations are required to make out a conditions-of-confinement claim.”
Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). “Whether conditions
of confinement are cruel and unusual must be judged in accordance with
contemporary standards of decency.” Id. (citing Hudson, 503 U.S. at 8 and
Rhodes, 452 U.S. at 346). “If under contemporary standards the conditions
cannot be said to be cruel and unusual, then they are not unconstitutional,
and ‘[t]o the extent that such conditions are restrictive and even harsh, they
are part of the penalty that criminal offenders pay for their offenses against
society.’” Id. (quoting Rhodes, 452 U.S. at 347).
“As with a claim for deliberate indifference to serious medical needs,
a conditions-of-confinement claim includes an objective and a subjective
component.” Id. (citing Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017)). A
conditions-of-confinement claim requires “an objective showing that the
conditions are sufficiently serious—i.e., that they deny the inmate ‘the
minimal civilized measure of life’s necessities,’ creating an excessive risk to
the inmate’s health and safety.” Id. (quoting Isby, 856 F.3d at 521). The
conditions alleged can be considered “in combination when they have ‘a

Irrespective of whether the Court considers Plaintiff’s conditions of
confinement under the Eighth Amendment or the Fourteenth Amendment Due
Process Clause, the standard is the same. Drake v. Velasco, 207 F. Supp. 2d 809, 812
(N.D. Ill. 2002) (“Claims by pretrial detainees alleging unconstitutional conditions
of confinement are governed by Fourteenth Amendment Due Process Clause
rather than the Eighth Amendment’s prohibition against cruel and unusual
punishment. . . . The standard for analyzing a pretrial detainee’s Fourteenth
Amendment due process claim is identical to the standard employed in evaluating
a convicted inmate’s Eighth Amendment claim of cruel and unusual punishment.”
(quoting Wysinger v. Sheahan, No. 94 C 513, 1995 U.S. Dist. LEXIS 9355, at *8–9
(N.D. Ill. July 6, 1995) and Vinegar v. Fairman, No. 95 C 844, 1995 U.S. Dist. LEXIS
19376, at *10 (N.D. Ill. Dec. 29, 1995))).
11

Page 21 of 34

mutually enforcing effect that produces the deprivation of a single,
identifiable human need.’” Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013)
(quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991) and citing Gillis v. Litscher,
468 F.3d 488, 493 (7th Cir. 2006) and Murphy v. Walker, 51 F.3d 714, 721 (7th
Cir. 1995)).
A conditions-of-confinement claim also requires “a subjective
showing of a defendant’s culpable state of mind,” and “the state of mind
necessary to establish liability is deliberate indifference to the inmate’s
health or safety.” Giles, 914 F.3d at 1051 (quoting Isby, 856 F.3d at 521 and
citing Est. of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000)).
The Court begins with the objective component of the conditions-ofconfinement claim. That Plaintiff was disallowed a transfer to another
facility does not satisfy this component because it cannot be reasonably
inferred that this condition created “an excessive risk to [Plaintiff’s] health
and safety.” Id. (quoting Isby, 856 F.3d at 521). The same is true regarding
Plaintiff’s allegations that he was denied Huber privileges, inconveniently
moved around, deprived of his communications devices, and disallowed
from making a phone call. None of these conditions—whether considered
individually or in totality—created “an excessive risk” to Plaintiff’s health
and safety. Id.
Plaintiff’s claim that he was placed in several “infested, unclean
cell[s],” ECF No. 1 at 3, is a closer call. It is not entirely clear how long
Plaintiff claims to have been housed in these unclean conditions, and he
fails to describe how the cells were “unclean” and by what they were
“infested.” Jail facilities must “provide reasonably adequate sanitation,”
Wheeler v. Walker, 303 F. App’x 365, 368 (7th Cir. 2008) (citing Gillis, 468 F.3d
Page 22 of 34

at 493, and Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997)), but Plaintiff’s
bare assertion of “unclean, infested cell[s]” is so sparse that the Court is
unable to evaluate whether the cells as he describes them could be
considered to pose “an excessive risk” to Plaintiff’s health and safety. Giles,
914 F.3d at 1051; Staten v. Sehneider, No. 20-cv-227-wmc, 2021 U.S. Dist.
LEXIS 47846, at *6 (W.D. Wis. Mar. 15, 2021) (“[P]laintiff’s allegations . . .
are too vague to suggest that he was subjected to [cruel and unusual]
conditions.”). Was there some mere dirt on the floor and an unwelcome
family of ants? As currently pleaded, Plaintiff fails to allege that the cells in
which he was housed were such that they failed to comply with
“contemporary standards of decency.” Giles, 914 F.3d at 1051 (citing
Hudson, 503 U.S. at 8 and Rhodes, 452 U.S. at 346). Such deficiencies could
conceivably be remedied by amendment, however, and so the Court will
grant Plaintiff leave to amend this aspect of his conditions-of-confinement
claim.
The Court next turns to Plaintiff’s claim that he was “placed in
isolation without any explanation . . . for an additional 30 hours.” ECF No.
1 at 3. The Court does not doubt that such a period of isolated confinement
was unpleasant and uncomfortable, but Plaintiff alleges nothing to suggest
that it created “an excessive risk” to his health and safety. Giles, 914 F.3d at
1051. For example, he does not allege that he suffered any “serious physical,
mental, or psychological harm” from the solitary confinement. Isby, 856
F.3d at 523. “[P]rolonged segregated confinement may constitute an Eighth
Amendment violation in some instances,” Giles, 914 F.3d at 1051 (citing Isby,
856 F.3d at 521), but this is not one of them. See generally Isby, 856 F.3d at
521–24 (no conditions-of-confinement claim where plaintiff spent over ten
years in solitary confinement); Adams v. Godinez, No. 95 C 3168, 1995 U.S.
Page 23 of 34

Dist. LEXIS 17828, at *16 (N.D. Ill. Nov. 28, 1995) (no conditions-ofconfinement claim where plaintiff spent ninety days in solitary
confinement).
However, for purposes of the motion to dismiss stage, Plaintiff’s
allegation that he was deprived of food for twenty-four hours does satisfy
this objective component of the conditions-of-confinement claim. “[T]he
denial of food is not a per se violation of the Eighth Amendment.” Duncan
v. Levenhagen, No. 99-3697, 2000 U.S. App. LEXIS 8721, at *4 (7th Cir. Apr.
28, 2000) (citing Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999)). Whether
a deprivation of food rises to the level of a conditions-of-confinement
violation depends on “the amount and duration of the deprivation.” Id.
(citing Reed, 178 F.3d at 853). For example, “withholding food . . . for a mere
twelve hours,” without more, is not considered “a deprivation of sufficient
magnitude to have violated the Eighth Amendment.” Id. The Court cannot
conclude, however, at this juncture and in the absence of briefing on the
matter, that a twenty-four-hour deprivation of food cannot support a
conditions-of-confinement claim.
Notwithstanding

the

foregoing,

Plaintiff’s

conditions-of-

confinement claim as currently pleaded is nevertheless deficient because he
fails to allege that those unnamed persons who subjected him to these
conditions did so with “deliberate indifference to [his] health or safety.”
Giles, 914 F.3d at 1051 (citing Turbin, 226 F.3d at 529). “Deliberate
indifference requires that a prison official know of and disregard a
substantial risk of serious harm to the inmate[‘s] health or safety.” Turbin,
226 F.3d at 529 (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Plaintiff
does not allege that any prison official—let alone one that he has named as
a Defendant—was even aware of the conditions of which he complains, let
Page 24 of 34

alone that such official disregarded any risk to Plaintiff. Plaintiff does not,
for example, allege that during the time of his confinement he alerted any
staff member to the allegedly unclean conditions of his cell or to the fact
that he had not received food during that 24-hour period. See Staten, 2021
U.S. Dist. LEXIS 47846, at *7 (“[P]laintiff has not alleged . . . that he
complained to any of the defendants about the conditions of confinement
and they responded with deliberate indifference.”).
Although Plaintiff has failed to state a conditions-of-confinement
claim, the Court cannot conclude that the deficiencies it has identified with
this claim cannot be remedied by amendment. For example, Plaintiff may
be able to amend his complaint both to sufficiently state this claim and to
identify a proper defendant or defendants against whom it should be
brought. Accordingly, the Court is constrained to allow him an opportunity
to attempt to do so. Rohler, 576 F.2d at 1266.
5.4

Miscellaneous Claims and Allegations

The Court now turns to Plaintiff’s remaining claims, several of which
have already been adjudicated on their merits in previous cases.
5.4.1

Malicious Prosecution

Plaintiff purports to bring a claim for malicious prosecution,
although he does not specify against whom. ECF No. 1 at 4. The scope of
this claim is unclear. Plaintiff uses the phrase just one time in a heading and
then proceeds to discuss the underqualification of participants in the state
court system, generally. For the reasons discussed herein, Plaintiff fails to
state a claim for malicious prosecution.
A malicious prosecution claim is “litigable as a constitutional claim
only if there were no adequate state tort remedy, but Wisconsin law

Page 25 of 34

provides such a remedy.” Cannon v. Newport, 850 F.3d 303, 306 (7th Cir.
2017) (citing Strid v. Converse, 331 N.W.2d 350, 353–54 (Wis. 1983); Julian v.
Hanna, 732 F.3d 842, 845 (7th Cir. 2013); and Newsome v. McCabe, 256 F.3d
747, 750–51 (7th Cir. 2001)). The Court cannot, therefore, entertain Plaintiff’s
malicious prosecution claim as one of constitutional scope.
But even when evaluated as a matter of state law, the claim
nevertheless fails. Under Wisconsin law, a plaintiff must plead the
following six elements to state a claim for malicious prosecution:
(1) [A] prior institution or continuation of some regular
judicial proceedings against the plaintiff . . . [;] (2) Such
former proceedings must have been by, or at the
instance of the defendant in this action . . . [;] (3) The
former proceedings must have terminated in favor of
the defendant therein . . . [;] (4) [M]alice in instituting
the former proceedings[;] (5) [W]ant of probable cause
for the institution of the former proceedings[;] and]
(6) [I]njury or damage resulting to the plaintiff from
the former proceedings.
Wilburn v. Nash, 2018 Wisc. App. LEXIS 501, 917 N.W.2d 234, ¶ 11 (Wis. Ct.
App. May 22, 2018) (quoting Schier v. Denny, 101 N.W.2d 35, 36 (Wis. 1960)).
“Malicious prosecution claims are limited ‘to those instances in which the
defendant, as a private citizen, has taken affirmative, decisive steps to
subject another person to the rigors of a lawsuit, without knowing that his
claim is well grounded . . . .’” Kundinger v. Stair, 2023 Wisc. App. LEXIS 659,
994 N.W.2d 7, ¶ 14 (Wis. Ct. App. June 20, 2023) (quoting Pollock v. Vilter
Mfg. Corp., 126 N.W.2d 602, 606 (Wis. 1964)).
Plaintiff fails to plead that any of the named Defendants has, “as a
private citizen, . . . taken affirmative . . . steps to subject” Plaintiff to “the
rigors of a lawsuit,” let alone one that the Defendant knows is not “well

Page 26 of 34

grounded.” Id. (quoting Pollock, 126 N.W.2d at 606). Plaintiff takes issue
with actions taken against him by the state court in his family law/divorce
case, but no Defendant initiated that case against him, and that case has not
“terminated in favor” of any of the Defendants. Wilburn, 917 N.W.2d, ¶ 11
(quoting Schier, 101 N.W.2d at 36). Accordingly, Plaintiff’s malicious
prosecution claim fails. And because Plaintiff cannot remedy these
deficiencies by amendment of his Complaint, the Court need not grant him
leave to amend to attempt to do so. Village of Arlington Heights, 782 F.3d at
919 (citing McCoy, 760 F.3d at 684).
5.4.2

“Invalid Use of Legal Authority” and Abuse of
Process

Plaintiff also takes issue with various actions undertaken in Case No.
2006FA689 that he characterizes as “invalid use[s] of legal authority,”
“abuse[s] of process,” and “abuse[s] of authority.” ECF No. 1 at 3–4. For
example, he claims that “the computer records used by the plaintiffs [sic]
and their subordinates were knowingly and intentionally falsified by
underqualified and unqualified members” of the state judiciary and that
“the Director of state courts intentionally” allows this to happen. Id. at 4.
He claims that this has “happened for years to [his] ongoing detriment in
the family law litigation” in Case No. 2006FA689 and that “[a]ll this was
done under the supervision and approval of” Ashley. Id. He also insists that
Flynn has been “impersonating” a reserve judge in Case No. 2006FA689,
and he suggests that Ziegler and Skwierawski should also be held liable
because Ziegler “is responsible” for the assignment of reserve judges and
Skwierawski “is responsible for . . . inter-district assignment of reserve
judges.” Id. at 2, 6.

Page 27 of 34

These claims are subject to dismissal for myriad reasons, foremost of
which is that Plaintiff already raised them and similar claims in Case No.
2:16-CV-00313-DEJ and Case No. 21-CV-001129-BHL. In each of those cases,
the court rejected the claims on their merits. That precludes this Court from
considering the same claims, as well as those that could have been brought
at that time. Idahosa v. Blagojevich, 297 F. App’x 541, 542 (7th Cir. 2008)
(“Claim preclusion prevents parties from relitigating claims that could have
been (or were) raised in an earlier lawsuit that resulted in a final judgment
on the merits.” (citing Cole v. Bd. of Trs. of the Univ. of Ill., 497 F.3d 770, 772
(7th Cir. 2007)).12
But even if the Court were to consider the claims, they would
nevertheless be subject to dismissal. To the extent that they are directed at
Ashley and Flynn, for example, they are barred by judicial immunity.
Judges are entitled to absolute immunity when the challenged actions are
judicial in nature. See Brunson v. Murray, 843 F.3d 698, 710 (7th Cir. 2016).
“Absolute immunity is a powerful shield attaching primarily to judicial
functions—not to the person or position.” Id. (citing Cleavinger v. Saxner, 474
U.S. 193, 201 (1985)). “When a functional analysis of the responsibilities at
issue reveals that they are judicial in nature, the actor is entitled to absolute
immunity from damages no matter how erroneous the act or injurious the
consequences.” Id. (citing Cleavinger, 474 U.S. at 199–200); see also Bolin v.
Story, 225 F.3d 1234, 1239 (7th Cir. 2020) (“This immunity applies even
when the judge’s actions are in error, malicious, or in excess of his or her
“Although claim preclusion is an affirmative defense, see Fed. R. Civ. P.
8(c)(1), a district court may raise the issue sua sponte when preclusion clearly
applies.” Morrow v. Brennan, 676 F. App’x 582, 585 (7th Cir. 2017) (emphasis added)
(citing Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010) and Kratville v. Runyon,
90 F.3d 195, 198 (7th Cir. 1996)).
12

Page 28 of 34

jurisdiction.” (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978))). Plaintiff
dislikes actions taken by Ashley and Flynn in presiding over Case No.
2006FA689—for example, allegedly “conducting an illegal hearing,”
subjecting him to a commitment order he deems invalid, and “deny[ing]”
him hearings, ECF No. 1 at 4 & n.2, 3—but judicial immunity protects
Ashley and Flynn from claims such as these.
The same is true with respect to Skwierawski and Ziegler. Plaintiff
takes issue with Skwierawski and Ziegler’s appointment and assignment of
reserve judges, but judicial immunity—or at the very least quasi-judicial
immunity—protects them from such claims. See John v. Barron, 897 F.2d
1387, 1392 (7th Cir. 1990) (“Unlike a judge who fires a court employee, . . . ,
a judge who assigns a case . . . acts well within his or her judicial capacity.”
(citing Forrester v. White, 484 U.S. 219, 229 (1988))).
For all these reasons, Plaintiff’s claims for invalid use of legal
authority, abuse of authority, and abuse of process are subject to dismissal
with prejudice. See Bryant v. Chupack, 93 F.4th 1029, 1033 (7th Cir. 2024);
Green v. Ill. State Bd. of Educ., 849 F. App’x 593, 593 (7th Cir. 2021) (affirming
district court’s grant of motion to dismiss with prejudice on ground of claim
preclusion).
5.4.3

Diploma Privilege

Plaintiff also claims that Wisconsin’s use of diploma privilege
unconstitutionally subjects him to an under- and unqualified state
judiciary. ECF No. 1 at 6. This claim is subject to dismissal because Plaintiff
already raised a similar—if not identical—claim in Case No. 21-CV-001129BHL, and that claim was dismissed on its merits. Plaintiff is therefore
precluded from raising it again. Idahosa, 297 F. App’x at 542. The Court may

Page 29 of 34

accordingly dismiss this claim with prejudice which, again, means that
Plaintiff is not allowed to raise it in the future—in any court of competent
jurisdiction, whether in this District or elsewhere.
6.

CONCLUSION
For the reasons provided herein, Plaintiff’s claim for violation of his

right to access the courts and petition his government is subject to dismissal
for failure to state a claim. His claim for false arrest is subject to dismissal
for lack of jurisdiction. His claim for unlawful detention following his arrest
until August 17, 2023 is subject to dismissal with prejudice for failure to
state a claim, as is his claim for malicious prosecution. His claim that
Wisconsin’s use of diploma privilege unconstitutionally subjects him to an
under- and unqualified judiciary is dismissed with prejudice as precluded
by claim preclusion, as are his claims of invalid uses of legal authority,
abuse of authority, and abuse of process.
However, the Court will afford Plaintiff leave to amend his
complaint to attempt to properly state a claim for unlawful detention from
August 17, 2023 to August 21, 2023 and to identify the appropriate
defendant(s) as to that claim. Plaintiff may also have leave to amend his
complaint to attempt to properly state a conditions-of-confinement claim—
solely regarding his alleged deprivation of food and the allegedly unclean
and infested cells—and to identify the appropriate defendant(s) as to that
claim. Plaintiff shall file an appropriate amended complaint on or before
May 29, 2024. Failure to timely file an amended complaint will lead to
dismissal of this case. Civ. L.R. 41(c) (“Whenever it appears to the Court
that the plaintiff is not diligently prosecuting the action . . . the Court may
enter an order of dismissal with or without prejudice.”).

Page 30 of 34

The Court is enclosing a copy of its amended complaint form.
Plaintiff’s amended complaint should only state facts relevant to the two
discrete claims on which the Court has granted him leave to amend—his
claim for unlawful detention from August 17, 2023 to August 21, 2023 and
his conditions-of-confinement claim. Plaintiff should not include in his
amended complaint any allegations regarding his other claims that the
Court has herein dismissed. If Plaintiff continues to raise allegations
regarding those other claims, the Court will strike the amended complaint
from the record and may dismiss Plaintiff’s case in its entirety. See Schmidt
v. Campanella Sand & Gravel Co., 49 F. App’x 647, 651 (7th Cir. 2002) (citing
Fed. R. Civ. P. 41(b) and LeBeau v. Taco Bell, Inc., 892 F.2d 605, 607 (7th Cir.
1989)).
Plaintiff is advised that his amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
An amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. Duda v. Bd. of
Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir.
1998) (citing Wellness Cmty.-Nat’l v. Wellness House, 70 F.3d 46, 49 (7th Cir.
1995)). In such instances, the “prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading.” Id. (quoting Fuhrer v. Fuhrer,
292 F.2d 140, 144 (7th Cir. 1961)). In other words, any amended complaint
must include, without reference to other documents, all of the allegations
relevant to the two claims on which the Court has herein granted leave to
amend, even if those allegations already appear in the original complaint.
By operation of this Order, all currently-named Defendants in this
case will be dismissed. In the meantime, the Court will order the Clerk of
Court to add John Does as placeholder defendants, pending Plaintiff’s
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submission of an appropriate amended complaint as instructed herein. As
noted, Plaintiff must name as defendant(s) in his amended complaint the
individual(s) responsible for his unlawful detention from August 17, 2023
to August 21, 2023 and for his alleged 24-hour deprivation of food and his
housing in unclean, infested cells. If he is unaware of the identities of these
individuals, he may at this juncture identify them as John or Jane Doe(s).
Plaintiff should not list as defendants in his amended complaint anyone
that the Court has, in this Order, dismissed as a Defendant from the action.
Accordingly,
IT IS ORDERED that Plaintiff Martin Hying’s motion “for [a]
hearing,” ECF No. 40, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants Anna Maria Hodges
and Denita R. Ball’s motion to dismiss, ECF No. 31, be and the same is
hereby GRANTED; Defendants Anna Maria Hodges and Denita R. Ball be
and the same are hereby DISMISSED as defendants from this action;
IT IS FURTHER ORDERED that Defendants Carl Ashley, Dennis
Flynn, Audrey Skwierawski, and Annette K. Ziegler’s motion to dismiss,
ECF No. 28, be and the same is hereby GRANTED; Defendants Carl
Ashley, Dennis Flynn, Audrey Skwierawski, and Annette K. Ziegler be and
the same are hereby DISMISSED as defendants from this action;
IT IS FURTHER ORDERED that Plaintiff Martin Hying’s right to
petition/right to access claim, ECF No. 1 at 2, be and the same is hereby
DISMISSED with prejudice for failure to state a claim;
IT IS FURTHER ORDERED that Plaintiff Martin Hying’s false
arrest claim, ECF No. 1 at 2–3, be and the same is hereby DISMISSED
without prejudice for lack of jurisdiction;

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IT IS FURTHER ORDERED that Plaintiff Martin Hying’s claim that
he was unlawfully detained from August 14, 2023 to August 17, 2023, ECF
No. 1 at 3–4, be and the same is hereby DISMISSED with prejudice for
failure to state a claim;
IT IS FURTHER ORDERED that Plaintiff Martin Hying’s claim for
malicious prosecution, ECF No. 1 at 4, be and the same is hereby
DISMISSED with prejudice for failure to state a claim;
IT IS FURTHER ORDERED that Plaintiff Martin Hying’s claim that
Wisconsin’s use of diploma privilege unconstitutionally subjects him to an
under- and unqualified judiciary, ECF No. 1 at 6, be and the same is hereby
DISMISSED with prejudice as precluded by claim preclusion;
IT IS FURTHER ORDERED that Plaintiff Martin Hying’s claims of
“invalid use of legal authority,” “abuse of authority,” and “abuse of
process,” ECF No. 1 at 4, be and the same are hereby DISMISSED with
prejudice as precluded by claim preclusion;
IT IS FURTHER ORDERED the Clerk of Court add John Does as
placeholder defendants to the docket, pending Plaintiff’s submission of an
appropriate amended complaint as instructed herein;
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank non-prisoner amended complaint form along with this Order; and
IT IS FURTHER ORDERED that Plaintiff Martin Hying be and the
same shall hereby FILE an appropriate amended complaint as instructed,
on or before May 29, 2024, or otherwise risk dismissal of his case.

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Dated at Milwaukee, Wisconsin, this 8th day of May, 2024.
BY THE COURT:

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

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