Padilla v. Burke et al

Filing 7

ORDER signed by Judge J P Stadtmueller on 8/28/2024: DENYING as moot #2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Philip Padilla)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PHILIP PADILLA,
Plaintiff,
Case No. 24-CV-821-JPS

v.
JAMIE KUHN, OFFICER JANE DOE 1,
OFFICER JANE DOE 2, and TODD
SIMON,

ORDER

Defendants.

1.

INTRODUCTION
On July 1, 2024, Plaintiff Philip Padilla (“Plaintiff”), proceeding pro

se, filed this action alleging violations of his civil rights related to a state
criminal proceeding against him. ECF No. 1. He also filed a motion for leave
to proceed without prepaying the filing fee. ECF No. 2. The Court screened
the original complaint and, “finding that it present[ed] significant pleading
deficiencies, grant[ed] Plaintiff leave to file an amended complaint that
corrects those deficiencies.” ECF No. 5 at 1. Plaintiff filed an amended
complaint that raises allegations against police officers Jamie Kuhn
(“Kuhn”) and two Jane Doe officers and against his defense attorney Todd
Simon (“Simon”). ECF No. 6. The Court herein screens the amended
complaint and, finding that Plaintiff’s claims are time-barred and/or unable
to proceed under 42 U.S.C. § 1983, dismisses the case and denies as moot
Plaintiff’s motion for leave to proceed in forma pauperis.

2.

MOTION TO PROCEED IN FORMA PAUPERIS
A party proceeding pro se may submit to the court a request to

proceed without prepaying the otherwise required filing fees, otherwise
known as a motion to proceed in forma pauperis. 1 “The federal in forma
pauperis statute, 28 U.S.C. § 1915, is designed to ensure indigent litigants
have meaningful access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or repetitive lawsuits.”
Rodriguez v. Crim. Just. Facility Safety Bldg., No. 23-CV-394, 2023 WL 3467565,
at *1 (E.D. Wis. Apr. 7, 2023) (citing Nietzke v. Williams, 490 U.S. 319, 324
(1989)), report and recommendation adopted sub nom. Rodriguez v. Crim. Just.
Facility, No. 23-CV-394-PP, 2023 WL 3467507 (E.D. Wis. May 15, 2023).
To determine whether it may authorize a litigant to proceed in forma
pauperis, the Court engages in a two-part inquiry. It must examine whether
the litigant is able to pay the costs of commencing the action. 28 U.S.C.
§ 1915(a). The Court must also examine whether the action “is frivolous or
malicious,” “fails to state a claim on which relief may be granted,” or “seeks
monetary relief against a defendant who is immune from such relief”; if any
of these criteria applies, the Court “shall dismiss the case.” 28 U.S.C.
§ 1915(e)(2)(B)(i)–(iii). Likewise, “[i]f the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.
R. Civ. P. 12(h)(3).

Although 28 U.S.C. § 1915(a) specifically references “prisoner” litigants, it
has been interpreted as providing authority for such requests by both prisoner and
non-prisoner pro se litigants alike. Floyd v. U.S. Postal Serv., 105 F.3d 274, 275–76
(6th Cir. 1997) (superseded by rule on other, inapplicable grounds); see also Mitchell
v. Farcass, 112 F.3d 1483, 1491 n.1 (11th Cir. 1997) (“Section 1915(e) applies to all [in
forma pauperis] litigants—prisoners who pay fees on an installment basis,
prisoners who pay nothing, and nonprisoners in both categories.”) (Lay, J.,
concurring).
1

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It follows that a litigant whose complaint does not clear the 28 U.S.C.
§ 1915(e)(2) threshold or does not plead claims within the Court’s subject
matter jurisdiction, and whose case cannot proceed as a result, necessarily
cannot reap the benefits of proceeding in forma pauperis. In other words,
although in forma pauperis status ought to be granted to those
impoverished litigants “who, within the District Court’s sound discretion,
would remain without legal remedy if such privilege were not afforded to
them,” Brewster v. N. Am. Van Lines, Inc. 461, F.2d 649, 651 (7th Cir. 1972), a
pro se litigant’s financial status is only part of the picture in determining
whether the litigant’s case may proceed without payment of the filing fee.
For the reasons stated in the next section, Plaintiff’s complaint does
not clear the 28 U.S.C. § 1915(e)(2) threshold and this lawsuit may not
proceed. Accordingly, regardless of Plaintiff’s financial circumstances, the
Court must deny as moot his motion for leave to proceed in forma pauperis.
3.

SCREENING THE COMPLAINT
3.1

Legal Standard

As noted above, when a pro se litigant seeks to proceed in forma
pauperis, the Court must screen the litigant’s complaint prior to service on
defendants. The Court “shall dismiss the case” if it finds any of the
following: the action is frivolous or malicious, the complaint fails to state a
claim upon which relief may be granted, or the complaint seeks monetary
relief against a defendant who is immune from such relief, 28 U.S.C.
§ 1915(e)(2); or the case is outside of the Court’s subject matter jurisdiction,
Fed. R. Civ. P. 12(h).
A claim is legally frivolous when it “lacks an arguable basis either in
law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke,
490 U.S. at 325); see also Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
Page 3 of 11

(7th Cir. 1997) (quoting Neitzke, 490 U.S. at 325). The Court may dismiss a
claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S.
at 327.
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)). Plausibility requires “more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
In reviewing the complaint, the Court is required to “accept as true
all of the well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff.” Kubiak, 810 F.3d at 480–81 (citing Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)). However, the Court “need
not accept as true ‘legal conclusions, or threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.’” Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Ashcroft, 556 U.S. at 678)
(internal bracketing omitted). A court is obligated to give pro se litigants’
allegations a liberal construction. Kelsay v. Milwaukee Area Tech. Coll., 825 F.
Supp. 215, 217 (E.D. Wis. 1993) (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972)). Pro se complaints are held to “less stringent standards than formal

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pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
3.2

Plaintiff’s Factual Allegations

Plaintiff alleges that, “on August 13th of 2017,” Kuhn and Officers
Jane Doe 1 and 2 “chased [him] down in [his] car, pulled [him] over and
drew guns on [him].” ECF No. 6 at 2.2
Plaintiff was taken to the Oconto County Jail. See id. at 2, 4. Officer
Jane Doe 1 “handcuffed [Plaintiff] to a table” and interrogated him. Id. at 2.
Kuhn and Officers Jane Doe 1 and 2 laughed at Plaintiff as he was chained
to the table. Id. Officer Jane Doe 2 “got aggressive with” Plaintiff while
putting him back into the police car. Id. Officer Jane Doe 1 stripped Plaintiff
of his clothing and put him in a “suicidal jacket” which made it difficult for
Plaintiff to move his legs. Id. at 2, 4. Plaintiff was put in a “frigid, isolated”
room and left there, in the suicide jacket and without a blanket, for two days
before Plaintiff could purchase a thin sweater from the jail commissary. Id.
at 4. Overall Plaintiff spent thirty days in isolation. Id.

As the Court previously noted, ECF No. 6 at 5, Plaintiff’s allegations relate
to a past state criminal case. See State of Wisconsin v. Philip J. Padilla, Oconto County
Case
No.
2017CF000101,
available
at
https://wcca.wicourts.gov/caseDetail.html?caseNo=2017CF000101&countyNo=42
&index=0&mode=details (last visited Aug. 28, 2024) (hereinafter the “State Case”).
The Court may take judicial notice of public records, including state court records.
See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
2

In that case, Plaintiff entered a no-contest plea, and accordingly was
adjudicated guilty, of one count of enticing a child to engage in sexual contact; he
faced another charge which was eventually dismissed. State Case, “Charges”
section. He was sentenced on March 2, 2018 to fifteen months of imprisonment
followed by three years of extended supervision. Id., “Charges” section and Mar.
2, 2018 docket entry.

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Plaintiff also briefly alleges that “[t]here was . . . evidence of
entrapment” on his phone but Kuhn had his phone destroyed. Id.
Simon was Plaintiff’s defense attorney in the State Case. See State
Case

generally.

Plaintiff

expresses

dissatisfaction

with

Simon’s

representation of him during the criminal case. Id. He says that Simon “kept
no notes of his meetings with” Plaintiff during the 87 days that Plaintiff was
in jail. Id. He seems to take issue with the advice Simon gave him to not go
to trial and instead enter a no-contest plea. Id. (alleging Simon said he could
“only get [Plaintiff] probation if it were any other county but Oconto” and
asked Plaintiff if he was “sure [he] want[ed] to go to trial?”).
Plaintiff alleges that these occurrences amounted to a violation of his
rights under the Fourth and Sixth Amendments, causing him reputation
harm, emotional distress, and loss of wages. Id. at 5. For relief on these
alleged violations, Plaintiff seeks monetary damages. Id.
3.3

Analysis

The Court understands Plaintiff’s amended complaint as attempting
to raise the following claims:
•

A claim that he was subjected to excessive force when officers
chased him, drew guns on him, and placed him in a police
vehicle,

in

violation

of

the

Fourth

and/or

Fourteenth

Amendments;
•

A claim that he was subjected to unconstitutional conditions of
confinement when he was chained to a table, kept in a suicidal
vest, and kept in a frigid, isolated cell during his pretrial
detention, in violation of the Fourteenth Amendment;

•

A claim that Simon was constitutionally ineffective as Plaintiff’s
defense lawyer, contributing to an unfavorable outcome in the
State Case, in violation of the Sixth Amendment; and

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•

A claim that his conviction in the State Case is invalid because
Kuhn and/or Officers Jane Doe 1 and 2 entrapped him and then
Kuhn destroyed his phone.

As with Plaintiff’s original complaint, there are a number of
problems with Plaintiff’s amended complaint. The first problem is that the
statute of limitations for Plaintiff to bring these claims under 42 U.S.C.
§ 1983 for violations of his civil rights has passed, as the Court previously
warned him was likely. ECF No. 5 at 12.
For events that occurred before 2018, the applicable statute of
limitations is six years; for events that occurred on or after April 5, 2018
when the Wisconsin legislature amended the relevant statute, the
applicable limitations period is three years. Murphy v. Wis. Dep’t of Corrs.,
No. 21-CV-52-PP, 2021 WL 1546130, at *4 (E.D. Wis. Apr. 20, 2021) (citing
Wis. Stat. § 893.54 and Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018)).
When a complaint affirmatively shows that the plaintiff’s claims are barred
by the statute of limitations, the Court should dismiss those claims. Thomas
v. Thomas, 22-CV-01893-JPH-TAB, 2022 WL 16572383, at *1 (S.D. Ind. Nov.
1, 2022) (“[C]laims should be dismissed at screening when it is clear on the
face of the complaint that they are barred by statutes of limitations.” (citing
Dickens v. Illinois, 753 F. App’x 390, 392 (7th Cir. 2018))).
The allegations in Plaintiff’s amended complaint together with
consideration of judicially-noticeable facts demonstrate that his claims are
time-barred. Plaintiff affirmatively alleges that the events he complains of
began when he was detained by Kuhn and Officers Jane Doe 1 and 2 on
August 13, 2017. He also states that he was held in pretrial detention at the
Oconto County Jail for at least 87 days. He was sentenced in the State Case
on March 2, 2018. See supra note 2. His claims challenge (1) the amount of

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force used against him at the time of arrest, (2) the conditions of
confinement during pretrial detention, (3) Simon’s competency as his trial
attorney (that is, in the pretrial phase, until Plaintiff entered his no-contest
plea), and (4) the validity of his conviction, which was entered in March
2018. But all of these claims are time-barred.
The statute of limitations for any claim based on Plaintiff’s arrest
commenced on August 13, 2017 and therefore expired six years later on
August 13, 2023. Plaintiff sued on July 1, 2024, well after that deadline.
Accordingly, this claim is time-barred.
Even assuming that his other three claims accrued sometime
between August 2017 and March 2018, after he was arrested and either
during his 87-day pretrial detention or during the pretrial phase of the State
Case—thus applying the more generous six-year state of limitations—these
claims are all time-barred as well, because Plaintiff failed to bring them in
before March 2024, when the six-year limitations period expired. If
Plaintiff’s other claims accrued on or after April 5, 2018, when Wisconsin
updated the relevant statute of limitations, then the applicable limitations
expired for those claims three years later (in April 2021), so all those claims
are time-barred as well. Further, the Court notified Plaintiff that his claims
might be time-barred and accordingly he had the opportunity to add facts
and argument supporting application of tolling doctrines, see ECF No. 5 at
12; nothing in the amended complaint supports application of such
doctrines.
Additionally—as the Court previously warned Plaintiff—his claims
that Simon was ineffective as defense counsel and that his conviction is
invalid cannot proceed as constitutional rights claims under 42 U.S.C.
§ 1983. ECF No. 5 at 9–10. “[Any] claims that challenge the validity of
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[Plaintiff’s] conviction—that is, his claims that his conviction is invalid
because of Kuhn’s conduct . . . [or] of ineffective assistance of counsel
against Simon . . . cannot proceed through the present lawsuit.” Id. at 10; id.
at 12–13 (“[A]ny amended complaint must omit claims . . . implying that
his conviction is invalid, including but not limited to claims . . . [related to]
Kuhn’s conduct . . . [or] that Simon engaged in ineffective assistance of
counsel . . . “).3 And even though Plaintiff now seeks only monetary
damages, “he can only seek monetary damages from Defendants for their
conduct in his state criminal investigation and prosecution if his conviction
for the underlying crime is overturned.” Id. (citing Moore v. Wisconsin, No.
19-CV-124-JPS, 2019 WL 3858633, at *4 (E.D. Wis. Aug. 16, 2019)). The State
Case docket indicates that the conviction remains in place. The Court
therefore cannot grant relief on Plaintiff’s Sixth Amendment claim against
Simon and his claim that Kuhn and Officers Jane Doe 1 and 2 entrapped
him and/or destroyed his phone. Savory v. Cannon, 947 F.3d 409, 430 (7th
Cir. 2020); Moore, 2019 WL 3858633, at *2–4 (noting that “Plaintiff may not
seek to have his conviction overturned under 42 U.S.C. § 1983” and that his
“recourse, if he wishes to attack the validity of his conviction, is to . . . have
the . . . conviction overturned, ‘either in state proceedings or through a
federal collateral attack under 28 U.S.C. § 2254,’” i.e., a federal petition for
habeas corpus (quoting Henderson v. Bryant, 606 F. App’x 301, 304 (7th Cir.
2015))).

Any § 1983 claim against Simon is also barred because “a public defender
does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (footnote omitted).
3

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Because all of the discernible claims in the amended complaint are
time-barred and/or unable to proceed as § 1983 claims at this time, the Court
must dismiss Plaintiff’s case.
4.

CONCLUSION
For the reasons stated above, the Court will dismiss this case.

Because the claims raised are time-barred, the dismissal will operate with
prejudice. See Ammons v. Cook County, No. 11 C 5010, 2012 WL 2368320, at
*3 (N.D. Ill. June 20, 2012) (citing Elmore v. Henderson, 227 F.3d 1009, 1011
(7th Cir. 2000)). The Court will further deny as moot Plaintiff’s motion for
leave to proceed without prepayment of the filing fee, ECF No. 2.
Accordingly,
IT IS ORDERED that Plaintiff Philip Padilla’s motion for leave to
proceed without prepaying the filing fee, ECF No. 2, be and the same is
hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of August, 2024.
BY THE COURT:

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

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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 (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 thirty-day deadline. See Fed. R. App.
P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed
within twenty-eight (28) days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The Court
cannot extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.

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