Seehafer, Michael v. Marathon County et al

Filing 8

ORDER dismissing plaintiff's complaint. Plaintiff's 7 motion for appointment of counsel is denied as moot. The clerk of court is directed to close this case. Signed by District Judge Barbara B. Crabb on 1/31/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MICHAEL R. SEEHAFER,
ORDER
Plaintiff,
11-cv-777-slc1
v.
MARATHON COUNTY and
JUDGE VINCENT K. HOWARD,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this proposed civil action for monetary and injunctive relief under 42 U.S.C. §
1983, plaintiff Michael Seehafer, a prisoner at the Redgranite Correctional Institution,
contends that defendant Judge Vincent Howard violated his constitutional rights by
misclassifying his offense as a felony rather than a misdemeanor and giving him an excessive
sentence. In particular, plaintiff contends that he was improperly charged and convicted in
Marathon County Case No. 02CF144 of operating while intoxicated as a fifth-offense
felony, when he should have been charged with a fourth-offense misdemeanor. Plaintiff also
contends that because his offense was only a misdemeanor, he should not have received jail
time or supervised release.

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Plaintiff seeks money damages from Judge Howard and

For the purpose of issuing this order, I am assuming jurisdiction over this case.

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Marathon County. In addition, he asks that the revocation of his supervised release that led
to his present incarceration be invalidated. He has also filed a motion for appointment of
counsel. Dkt. #7. Plaintiff is proceeding under the in forma pauperis statute, 28 U.S.C. §
1915, and has made an initial partial payment.
Because plaintiff is a prisoner, I am required by the 1996 Prison Litigation Reform
Act to screen his complaint and supplement and dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief may be granted or asks for money damages
from a defendant who by law cannot be sued for money damages. 28 U.S.C. § 1915A. In
addressing any pro se litigant’s complaint, the court must read the allegations of the
complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). After reviewing the
complaint, I conclude that plaintiff’s complaint is barred by the rule in Heck v. Humphrey,
512 U.S. 477 (1994), because he is challenging the validity of a state conviction and
sentence.
As the Supreme Court explained in Heck, “when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” Heck, 512 U.S. at 487. This means that before a
plaintiff may bring a civil suit for damages related to an unconstitutional conviction or
sentence under § 1983, the plaintiff must prove that the conviction “has been reversed on

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direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determinations, or called into question by a federal court’s issuance of a writ
of habeas corpus.” Id. at 486-87. The rule in Heck also applies to revocation proceedings.
Spencer v. Kemna, 523 U.S. 1, 17-18 (1998) (application of Heck to parole revocation
hearing); Williams v. Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003). Although plaintiff
states that his conviction was modified from a felony to a misdemeanor, plaintiff has not
shown that his sentence or revocation of his supervised release was declared invalid by any
court. Thus, I will dismiss plaintiff’s complaint.
I note that even if plaintiff would be successful in having his conviction and sentence
invalidated, he could not sue defendant Judge Howard for money damages. Under both
federal and state law, judges cannot be sued for acts taken in their capacity as judges.
Mireles v. Waco, 502 U.S. 9 (1991); Abdella v. Catlin, 79 Wis. 2d 270, 279, 255 N.W.2d
516, 521 (1977). The principle of judicial immunity recognizes that “[a]lthough unfairness
and injustice to a litigant may result on occasion, it is a general principle of the highest
importance to the proper administration of justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own convictions, without apprehension
of personal consequences to himself.” Mireles, 502 U.S. at 10 (citation and quotation marks
omitted).
Also, plaintiff’s allegations would not support a claim against defendant Marathon
County. Plaintiff could sue the county for money damages only if he could show that his

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allegedly erroneous conviction and sentence could “fairly be said to represent official policy”
of the county, which is the standard for municipal liability under § 1983. Monell v.
Department of Social Services of City of New York, 436 U.S. 658, 694 (1978). Plaintiff’s
allegations do not suggest that the county has a policy of misclassifying offenses and
providing excessive sentences.
Finally, because plaintiff will not be proceeding on any of his claims, I will deny his
motion for appointment of counsel as moot.

ORDER
IT IS ORDERED that
1. Plaintiff Michael Seehafer’s complaint is DISMISSED under Heck v. Humphrey,
512 U.S. 477 (1994).
2. Plaintiff’s motion for appointment of counsel, dkt. #7, is DENIED as moot.
3. The clerk of court is directed to close this case.
Entered this 31st day of January, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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