Miller v. Sheriff's Department Staff of Criminal Justice Facility

Filing 20

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 8/29/2024. 6 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED. 5 Plaintiff's motion for appointment of counsel DENIED AS MOOT. Case DISMISSED as untimely filed. (cc: all counsel and mailed to Michael Miller, 2503 N. 38th St., Milwaukee, WI 53206)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MICHAEL EDWARD MILLER, JR.,
Plaintiff,
v.

Case No. 24-cv-337-pp

SHERIFF’S DEPARTMENT STAFF
OF CRIMINAL JUSTICE FACILITY,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 6), DENYING AS MOOT
PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL (DKT. NO. 5),
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A AND DISMISSING
CASE AS UNTIMELY
______________________________________________________________________________
Plaintiff Michael Edward Miller, Jr., who formerly was incarcerated at
Dodge Correctional Institution and is representing himself, filed a complaint
under 42 U.S.C. §1983, alleging that the defendant violated his federal rights.
This decision resolves the plaintiff’s motions for leave to proceed without
prepaying the filing fee, dkt. no. 6, and to appoint counsel, dkt. no. 5, and
screens his complaint, dkt. no. 1.
I.

Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 6)
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA lets the court allow an incarcerated plaintiff to proceed with without
prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the
plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then
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must pay the balance of the $350 filing fee over time, through deductions from
his prison trust account. Id.
On July 3, 2024, the court ordered the plaintiff to pay an initial partial
filing fee of $3.53. Dkt. No. 17. The court received that fee on August 8, 2024.
The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and will require him to pay the remainder of the filing
fee over time as he is able.
II.

Screening the Complaint
A.

Federal Screening Standard

Under the PLRA, the court must screen complaints brought by
incarcerated persons seeking relief from a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a). The court must
dismiss a complaint if the incarcerated person raises claims that are legally
“frivolous or malicious,” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §1915A(b).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,
668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts,

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“accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows a court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that someone deprived him of a right secured by the Constitution or the laws of
the United States, and that whoever deprived him of this right was acting
under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints to a less
stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720
(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
B.

The Plaintiff’s Allegations

The caption of the complaint names “Sheriff's Department Staff of
Criminal Justice Facility” as the only defendant. Dkt. No. 1 at 1. But the body
of the complaint clarifies that the plaintiff seeks to sue Michael Stevenson, who
works at the Milwaukee County Sheriff’s Department. Id.
The complaint alleges that while the plaintiff was a pretrial detainee at
the Milwaukee County Jail, Stevenson “tased [him] in [his] head on MHU
[Mental Health Unit]” at 5:47 p.m. on April 16, 2019. Id. at 2, 4. The plaintiff

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says that Stevenson tased him “for running down the hallway and spinning
around.” Id. at 2. He says that being tased “caus[ed him] to fall backward onto
the prongs while the prongs of the taser were lunged [sic] in [his] head.” Id. He
says that he “was tased in the the [sic] back of [his] head for basically having
phycological [sic] issues.” Id. The plaintiff alleges that he was hospitalized for
eleven days. Id. He asserts that Stevenson violated “Wis. § 940.24 (injury by
negligent handling of dangerous weapon).” Id. He also asserts that the incident
was “cruel and unusual punishment by perplex imminent suspense.” Id.
The plaintiff asks that his complaint “be broadcasted of the incident in
[video] of the situation and the doctor cost be payed [sic] off on [his] medical
bills.” Id. at 3. He also seeks $30 million, and he asks “to be kept out of their
custody forever” and for his “pending charges to be dismissed.” Id.
C.

Analysis

The complaint seeks to proceed on allegations that Stevenson
unnecessarily and excessively tased the plaintiff causing him injury. Those
allegations could state a claim for violation of the plaintiff’s rights under the
Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
But the court will not determine whether the plaintiff states a Fourteenth
Amendment claim because his complaint was not timely filed. The relevant
statute of limitation for claims brought under §1983 is “the statute of
limitations for personal injuries supplied by the state in which the claim
arose.” Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018) (citing Wallace v.

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Kato, 549 U.S. 384, 387 (2007)). The limitation period for §1983 claims arising
in Wisconsin is the three-year limitation provision in Wis. Stat. §893.54 (2018).
Wisconsin previously allowed a six-year limitation period but in 2018 reduced
that period to three years. See id. (citing 2017 Wis. Act 235 (eff. Apr. 5, 2018))
(reducing applicable statute of limitation from six years to three years). The
three-year limitation period applies to causes of action accruing on or after
April 5, 2018. Although untimeliness is an affirmative defense, the plaintiff
may plead himself out of court “if he pleads facts that show that his suit is
time-barred.” Tregenza v. Great Am. Commc’ns Co., 12 F.3d 717, 718 (7th Cir.
1993).
The complaint alleges that Stevenson tased the plaintiff on April 16,
2019, while he was at the Milwaukee County Jail. Because this alleged incident
occurred after April 5, 2018, the three-year limitation period applies. Under
that statute, the plaintiff had to bring his lawsuit about this incident no later
than April 16, 2022. The court received his complaint on March 18, 2024—
nearly two years too late. The plaintiff gives no reason why he did not bring his
complaint within three years from the date of the incident. Because the plaintiff
filed his complaint almost two years too late, and he gives no reason why he
did not file it sooner, the court will dismiss it as untimely.
The court also observes that the plaintiff seeks release from custody and
dismissal of his charges. But the court cannot provide that relief under §1983.
The plaintiff’s sole federal remedy to challenge “the fact or duration of his

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confinement” is a petition for a writ of habeas corpus. Heck v. Humphrey, 512
U.S. 477, 481 (1994); see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
Although district courts generally permit civil plaintiffs at least one
opportunity to amend their pleadings, the court need not do so “when ‘it is
certain’ that amendment would be futile.” See Fields v. Miller, Case No. 211419, 2022 WL 1011666, at *3 (7th Cir. Apr. 5, 2022) (citing Runnion ex rel.
Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th
Cir. 2015)). The court finds that additional facts would not alter its conclusion
that the plaintiff brought his complaint nearly two years too late. The court
finds it certain that amendment would be futile and will not allow the plaintiff
to amend his complaint.
The Department of Corrections Offender Detail website shows that the
plaintiff was released onto extended supervision on August 20, 2024.
See Offender Detail, https://appsdoc.wi.gov/lop/home.do (DOC #544196). The
plaintiff did not notify the court of his release or give the court a current
address. The court’s staff contacted the plaintiff’s state probation agent, who
furnished a current address for the plaintiff of 2503 N. 38th St., Milwaukee, WI
53206. The court has updated the case docket and will send this order to the
plaintiff at that address. The court reminds the plaintiff that it is his
responsibility to notify the court of any change of address.
Finally, because the court is dismissing this case as untimely, the court
will deny as moot the plaintiff’s motion to appoint counsel. Dkt. No. 5.

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III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepaying the filing fee. Dkt. No. 6.
The court DENIES AS MOOT the plaintiff’s motion for appointment of
counsel. Dkt. No. 5.
The court ORDERS that this case is DISMISSED because the complaint
is untimely. The clerk will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within thirty days of the entry of
judgment. See Federal Rules of Appellate Procedure 3, 4. This court may
extend this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If the plaintiff appeals, he will be liable for the
$605 appellate filing fee regardless of the outcome of the appeal. If the plaintiff
seeks to proceed on appeal without prepaying the appellate filing fee, he must
file a motion in this court. See Fed. R. App. P. 24(a)(1). The Court of Appeals
may assess the plaintiff a “strike” if it concludes that his appeal has no merit. If
the plaintiff accumulates three strikes, he will not be able to file a case in
federal court (except a petition for habeas corpus relief) without prepaying the
full filing fee unless he demonstrates that he is in imminent danger of serious
physical injury. Id.

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Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Rule 59(e) must be filed within twenty-eight days of the entry of judgment.
The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion
under Rule 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 29th day of August, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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