Dunay v. Christianson et al
Filing
7
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 1/27/2025. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the ba lance of the filing fee as specified. CASE STAYED; Clerk of Court is DIRECTED to ADMINISTRATIVELY CLOSE this action. Plaintiff to FILE a motion to reopen this case within 90 days of the conclusion of his state court proceedings; failure to do so will result in dismissal of this action for failure to prosecute. See Order. (cc: all counsel, via mail to Kevin R Dunay and Warden at Oshkosh Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEVIN R. DUNAY,
Plaintiff,
v.
Case No. 24-CV-1058-JPS
JONATHAN D. CHRISTIANSON,
MATTHEW SKINNER, ROBERT J.
NEAU, EMILY TONEY, CATHY A.
JESS, BRANDON STAHMANN, and
ROBERT J. KAISER,
ORDER
Defendants.
Plaintiff Kevin R. Dunay, an inmate confined at Oshkosh
Correctional Institution (“OCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that the defendants violated Plaintiff’s constitutional rights.
ECF No. 1. This Order resolves Plaintiff’s motion for leave to proceed
without prepaying the filing fee and screens his complaint.
1.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case
because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On September 10, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $118.35. ECF No. 6. Plaintiff paid that fee on September
26, 2024. The Court will grant Plaintiff’s motion for leave to proceed
without prepaying the filing fee. ECF No. 2. He must pay the remainder of
the filing fee over time in the manner explained at the end of this Order.
2.
SCREENING THE COMPLAINT
2.1
Federal Screening Standard
Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner 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 applies to dismissals 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)). 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, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. 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).
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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 pro se complaints
liberally and holds them 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)).
2.2
Plaintiff’s Allegations
Plaintiff communicated with multiple attorneys regarding his postconviction motions and appeals in his state criminal cases. ECF No. 1 at 45. Defendants Stahmann (“Stahmann”) and Kaiser (“Kaiser”) were both
Plaintiff’s adversaries for his criminal cases and had a motive to censor and
interfere with Plaintiff’s communications with his attorneys. Id. at 5. On
May 7, 2019, Plaintiff sent confidential legal mail to his attorney and the
State Public Defender Intake regarding post-conviction issues. Id. When
meeting with the attorney, he learned that the mail was delayed three
weeks. Id. at 6. The attorney indicated that the lateness of the documents
would prevent him from bringing up the issues at the evidentiary hearing
in Plaintiff’s criminal case. Id.
On June 29, 2029, Plaintiff contacted Defendant Toney (“Toney”)
about the lengthy delays of his outgoing mail. Id. at 7. Plaintiff’s inmate
complaint about the mail delay was dismissed because Toney was
performing his own parallel investigation. Id. On July 9, 2019, Plaintiff
contacted Defendant Jess (“Jess”) and informed her that he was aware his
mail, including legal mail, was being opened and delayed by weeks. Id. at
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7. Plaintiff submitted multiple inmate complaints and contacted Toney,
Jess, and the DOC Secretary at various times about the issue of his legal
mail. Id. at 7–10.
On April 30, 2021, Plaintiff filed an open records request to find out
if his mail was being monitored and what legal mail had been opened up
outside his presence. Id. 11–12. Plaintiff specifically referred to inmate
complaint OSCI-2019-10081 and wanted to know who was responsible for
opening up and delaying his legal mail. Id. at 12. On July 30, 2021, Plaintiff
received legal mail from the Outagamie County Clerk of Court that had
been opened outside his presence. Id. Plaintiff filed an inmate complaint
about this incident that was affirmed. Id. On August 3, 2021, Plaintiff
received a response from to his public records request. Id. At this time,
Plaintiff learned that Defendants Stahmann, Christianson (“Christianson”),
and Neau (“Neau”) had communicated, starting in 2018, regarding
monitoring his phone calls and emails. Id.
Plaintiff also learned that Defendant Christianson opened and read
Plaintiff’s legal mail, addressed to his criminal attorneys and the Outagamie
County Sheriff’s Office, on December 29, 2018 and March 30 2019. Id. at 13.
Defendant Skinner (“Skinner”) opened and read his legal mail, addressed
to his criminal attorneys and the jail administration at Outagamie County
Jail, on January 25, 2019, January 29, 2019, February 27, 2019, April 9, 2019,
June 2, 2019, and September 3, 2019. Id. at 13–14. Correctional Officer Burger
(“Burger”) opened Plaintiff’s legal mail, addressed to the Outagamie
County Sheriff’s Office, on April 4, 2019. Id. at 13. Between November 16,
2018 and September 16, 2019, Christianson, Skinner, and Burger intercepted
and opened several of Plaintiff’s personal letters/cards and sent them to
Stahmann. Id. at 14. On September 16, 2019, Christianson emailed Toney
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and Neau to inform them that he was removing Plaintiff from mail
monitoring as of that day. Id. Plaintiff has reason to believe that several legal
mail entries were either intentionally delated or never entered. Id. at 15–16.
On August 7, 2021, Plaintiff submitted a “Motion to Cease
Harassment and Tampering with Legal Mail” with the Outagamie County
Circuit Court in Case No. 2018CF868. Id. at 17. The circuit court ignored his
motion. Id. Public records show that this case is ongoing. See State of
Wisconsin v. Kevin R. Dunay, Outagamie County Case No. 2018CF000868,
https://wcca.wicourts.gov/caseDetail.html?caseNo=2018CF000868&county
No=44&index=0&mode=details (last visited on Jan. 27, 2025). On August 13,
2021, Plaintiff submitted an inmate complaint about OCI staff reading and
providing his legal mail to law enforcement. Id. Plaintiff continued to have
multiple issues with his mail being opened into 2021.
2.3
Analysis
The Younger abstention doctrine prohibits federal judges from
intervening
in
state
proceedings unless there
are
extraordinary
circumstances involved. Younger v. Harris, 401 U.S. 37 (1971). Federal courts
must abstain from exercising jurisdiction over federal constitutional claims
that may interfere with on-going state proceedings. See SKS & Assocs., Inc.
v. Dart, 619 F.3d 674, 677 (7th Cir. 2010). Extraordinary circumstances exist
only where the danger of irreparable loss is both great and immediate.
Younger, 401 U.S. at 45.
Federal claims arising from illegal searches, seizures, and detentions
involve constitutional issues that a criminal defendant can litigate during
the course of the state criminal case. See Gakuba v. O'Brien, 711 F.3d 751, 751
(7th Cir. 2013). Such issues do not present a danger of irreparable and
immediate loss, because the criminal defendant can address them during
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his trial in state court. See id. If the criminal defendant loses at trial, he can
appeal to a higher state court, such as the Wisconsin Court of Appeals or
the Wisconsin Supreme Court, for relief. Id. For that reason, federal courts
stay civil rights cases pending in federal courts until any state criminal case
from which the plaintiff's federal claims may arise is resolved. Id.
Plaintiff’s claims in this federal case involve allegations that prison
officials impermissibly read his confidential legal materials and shared
them with law enforcement. As Plaintiff identifies, he has raised this issue
in his state court criminal case and public records show that the case is
ongoing. “Resolving the constitutionality of law enforcement’s conduct
throughout [Plaintiff’s] cases would inject this court into Wisconsin’s
criminal proceedings, offending the principles of equity, comity, and
federalism that counsel toward abstention.” Shaw v. County of Milwaukee,
No. 21-1410, 2022 WL 1001434, at *2 (7th Cir. Apr. 4, 2022). Because
Plaintiff’s state criminal case is not over, there is nothing the federal court
can do for him at this time. In order for this Court to consider Plaintiff’s
claims, he must complete his underlying criminal case and then exhaust all
of his appellate, or post-conviction, options in state court. See Simpson v.
Rowan, 73 F.3d 134, 138 (7th Cir. 1995). This Court can consider his
constitutional claims only after Plaintiff has litigated his claims to the
highest state court.
The Court will accordingly stay the case and administratively close
it at this time. When Plaintiff has fully litigated his pending state criminal
case through every level of the state system, he may file a motion with this
Court, asking to reopen the case. There is no additional fee for filing a
motion to reopen. Plaintiff must file a motion to reopen this case within
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ninety days of the conclusion of his state court proceedings; the failure to
do so will result in dismissal of this case for the failure to prosecute
The Court additionally notes that some of Plaintiff’s § 1983 claims
may be barred by the statute of limitations. For Ҥ 1983 claims, a cause of
action accrues when the plaintiff knew or should have known that [he] had
sustained an injury.” Barry Aviation Inc. v. Land O’Lakes Mun. Airport
Comm’n, 377 F.3d 682, 688 (7th Cir. 2004). The relevant Wisconsin statute of
limitations is either six or three years, depending on the accrual date. See
D'aquisto v. Love, No. 20-C-1034, 2020 WL 5982895, at *1 (E.D. Wis. Oct. 8,
2020) (explaining that in 2018 the Wisconsin legislature changed the statute
of limitations under Wis. Stat. § 893.53 from six years to three years). The
Court does not, however, make any final determination on the statute of
limitations issue because it is an affirmative defense, and it is not plain from
the face of the complaint that a tolling provision does not apply.
3.
CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that this case be and the same is hereby
STAYED;
IT
IS
FURTHER
ORDERED
that
the
Clerk
of
Court
ADMINISTRATIVELY CLOSE this case; Plaintiff must file a motion to
reopen this case within ninety days of the conclusion of his state court
proceedings; the failure to do so will result in dismissal of this case for the
failure to prosecute;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $231.65 balance
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of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to his trust account and forwarding payments to the Clerk of Court
each time the amount in the account exceeds $10 in accordance with 28
U.S.C. § 1915(b)(2). The payments shall be clearly identified by the case
name and number assigned to this case. If Plaintiff is transferred to another
county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 27th day of January, 2025.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to submit all correspondence and
legal material to:
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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.
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