Moore v. Atlanta, GA Police Department et al

Filing 10

ORDER re 1 Complaint filed by Rodney C. Moore. IT IS ORDERED that petitioner Rodney Moore is DENIED leave to proceed on his claim that he is unlawfully confined because it is barred by Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphre y, 512 U.S. 477 (1994). The remainder of petitioners complaint is DISMISSED because it violates Rule 8. Petitioner may have until February 10, 2009 to file an amended complaint that includes a short and plain statement showing that he is entitled to relief on a claim unrelated to the validity of his incarceration. If petitioner does not respond by that date, the clerk of court is directed to close the case. Signed by Chief Judge Barbara B Crabb on 1/26/09. (vob),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R O D N E Y C. MOORE, ORDER Petitioner, 0 9 -c v -2 3 -s lc 1 v. AT L AN T A GA POLICE DEPT.; C IT Y OF ATLANTA GA; Po lice Officer MICHAEL BUCKLEY; C olum bia Cty District Atty Former MARK BENNETT; COLUMBIA CTY; CITY OF SUN PRAIRIE; S U N PRAIRIE POLICE OFFICERS; FR AN K SMITH; MICHAEL BUCKLEY; S C O T T BARTNICK; KEVIN KONOPACKI; R IC H IE STILES-RIDDLE; NOVAK;JOHNSON; D E PT OF CORRECTIONS P.O. AGENTS; FR AN S IC O SALAS; SUSAN BENDER; D A N E CTY SHERRIFFS DEPT. AND DEPUTY'S; C O RY MORRISARD; DENNIS LINDHOLM;

Because there is presently a judgeship vacancy in the Western District of Wisconsin, the court is assigning 50% of its caseload automatically to Magistrate Judge Stephen Crocker un til the vacancy is filled. It is this court's expectation that the parties in a case assigned to the magistrate judge will give deliberate thought to providing consent for the magistrate judge to preside over all aspects of their case, so as to insure that all cases filed in the district receive the attention they deserve in a timely manner. At this early date, consents to the m agistrate judge's jurisdiction have not yet been filed by all the parties to this action. Therefore, for the purpose of issuing this order only, I am assuming jurisdiction over the case.

1

1

D AN E CTY HUMAN SERVICES AND STAFF M E M B ER S; KATHRYN PENNINGROTH; S H EL IA HANSON; D AN E CTY MENTAL HEALTH AND STAFF; D R . KIM NESTLER; LIANE NAKAMURA; D AN E CTY, STATE OF WISCONSIN; A D A GRETCHEN HAYWARD; W IS C . RESOURCE CENTER; T IM ZIGLER; JEREMY WRIGHT; TOM SPEECH; and City of Sun Prairie Police Dept. Det. FRANK, R espo nd ents. --------------------------------------------Petition er Rodney Moore is a prisoner seeking leave to proceed in forma pauperis in this civil action brought under 42 U.S.C. § 1983 and state law. In a previous order, I co n clu ded that petitioner was indigent and I directed him to make an initial partial payment of the filing fee, which the court has received. Because petitioner is a prisoner, I am required under the 1996 Prison Litigation R eform Act to screen his complaint and dismiss any claims that are legally frivolous, m alicious, fail to state a claim upon which relief may be granted or ask for money damages fro m a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915 and 19 15 A. Petitioner's complaint is almost impossible to understand. Although he has sued m any parties and he lists many rights he believes were violated, it is far from clear how he believes each of the respondents wronged him in a way that can be remedied in a civil rights

2

la w s u i t . Petitioner's fundamental grievance is relatively clear: he believes he should not be incarcerated. After he discusses a number of perceived injustices that he believes led to his con viction , petitioner writes at the end of his complaint, "The evidence proves I'm innocent" an d he asks for release from prison. In Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (19 94 ), the Supreme Court held that prisoners may not challenge their confinement or their convictions under 42 U.S.C. § 1983. Rather, they must bring a petition for a writ of habeas corp us after exhausting their state court remedies. Petitioner appears to know this because he discusses in a separate letter to the court a petition for a writ of habeas corpus that he filed in state court. Dkt. #4. Although it app ears that petitioner is frustrated because the state court has not ruled on his petition, a litigant who is dissatisfied with the progress of his case may not simply start anew in a court that does not have jurisdiction over his claim. Until petitioner's conviction is invalidated throu gh other means, he may not seek relief under § 1983 for unlawful confinement. B ecause petitioner's complaint is so difficult to understand, it is not clear whether there may be other matters he wishes to challenge that are unrelated to the validity of his confinem ent, such as medical care. Petitioner discusses many issues in his complaint, but he does not identify what is a claim and what is background information. It is particularly

3

difficult to identify petitioner's claims because petitioner does not discuss most of the respondents in the body of his complaint. If petitioner means to raise issues related to the conditions of his confinement, he may do so under § 1983, but he must give notice to resp o n d e n ts of each of his claims as required by Fed. R. Civ. P. 8. In other words,

petition er must explain in the body of his complaint (and not just in attachments) what each respo nd ent did that petitioner believes violated his federal rights. I n addition, petitioner should be aware of the limitations of Fed. R. Civ. P. 20. As the court of appeals held recently in George v. Smith, 507 F.3d 605 (7th Cir. 2007), petitio ner may join claims in a single lawsuit only if they are asserted against the same d efen dan t, Fed. R. Civ. P. 18, or if the allegations "aris[e] out of the same transaction, occurren ce, or series of transactions or occurrences and if any question of law or fact com m on to all defendants will arise in the action." Fed. R. Civ. P. 20. If petitioner wishes to challenge unrelated matters against different respondents, he will have to file separate la w s u i t s.

OR DER IT IS ORDERED that petitioner Rodney Moore is DENIED leave to proceed on his claim that he is unlawfully confined because it is barred by Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994). The remainder of petitioner's

4

co m p lain t is DISMISSED because it violates Rule 8. Petitioner may have until February 10, 2009 to file an amended complaint that includes a short and plain statement showing that he is entitled to relief on a claim unrelated to the validity of his incarceration. If petitioner do es not respond by that date, the clerk of court is directed to close the case. E n tered this 26t h day of January, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

5