McCormack, Alan v. Wright, Gerald et al

Filing 8

ORDER dismissing plaintiff's 1 complaint with prejudice for failure to state a claim. Plaintiff's 2 Motion to Appoint Counsel is denied as moot. The clerk of court is directed to close this case. Signed by District Judge Barbara B. Crabb on 10/23/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ALAN DAVID McCORMACK,
OPINION AND ORDER
Plaintiff,
12-cv-483-bbc
v.
GERALD WRIGHT, MICHAEL J.
GABLEMAN, BURNETT COUNTY
CIRCUIT COURT,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this proposed civil action for monetary and injunctive relief, plaintiff Alan David
McCormack alleges that defendants Gerald Wright and Michael Gablemen have not decided
in timely fashion various post conviction motions in his criminal case, in violation of
Wisconsin Supreme Court Rule 70.36(1)(a) and his right to due process under the
Fourteenth Amendment. Plaintiff seeks monetary damages and injunctive relief ordering,
among other things, the state court to reassign his case to a different judge, appoint a lawyer
to represent him, hold a hearing and rule on his motions. He has also filed a motion for the
appointment of counsel in this action.
Plaintiff is proceeding under the in forma pauperis statute, 28 U.S.C. § 1915, and has
paid his initial partial filing fee. Because plaintiff is a prisoner, I am required by the 1996
Prison Litigation Reform Act to screen his proposed complaint and dismiss any portion that

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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).
Having reviewed the complaint, I conclude that it must be dismissed with prejudice
because the named defendants are immune from suit and because the court lacks jurisdiction
over plaintiff’s claim that defendants violated state court rules.
Plaintiff has alleged the following facts.

ALLEGATIONS OF FACT
Plaintiff Alan David McCormack is a prisoner at the Fox Lake Correctional
Institution located in Fox Lake, Wisconsin. He was convicted of first degree murder on July
14, 1988. State v. McCormack, No. 87CF112 (Burnett County).
On June 8, 2005, plaintiff filed a petition for writ of habeas corpus with the Circuit
Court for Burnett County. At that time, plaintiff’s criminal case was assigned to defendant
Michael Gablemen, then a judge of the court. Plaintiff alleges that Gablemen did not act on
the petition and it remains pending.
On December 8, 2009, plaintiff’s case was reassigned to defendant Gerald Wright,
a judge on the Circuit Court for Sawyer County. At various times between November 9,
2009 and the present, plaintiff has filed sixteen motions in his criminal case. They include
motions for post conviction DNA testing and appointment of counsel, as well as motions for

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contempt of court, to correct the record, to appoint a special prosecutor, to produce the
court reporter’s trial notes, for immunity and for release. Defendant Wright has acted on
only four of the motions. On several occasions, plaintiff has written to the Chief Judge of
the 10th District, who responded by stating that he has no control over plaintiff’s
complaints.

OPINION
Plaintiff’s complaint alleges that defendant’s failure to decide his motions in a timely
fashion violates the due process clause of the Fourteenth Amendment and Wisconsin
Supreme Court Rule 70.36(1)(a). Unfortunately for plaintiff, he has two problems that
doom his case: he has failed to name a suable entity for his due process claim and I do not
have the authority to enforce the Wisconsin state court rules.
In a civil action, violations of the Constitution must be enforced through 42 U.S.C.
§ 1983. Plaintiff’s due process claim under § 1983 must be dismissed because he has not
named any person or entity that can be sued under § 1983.
Plaintiff cannot seek injunctive relief against defendant Wright or Gableman because
§ 1983 bars suits for injunctive relief against a judge “for an act or omission taken in such
officer's judicial capacity.” (Moreover, defendant Gableman no longer serves as a judge of
the court; he sits on the Wisconsin Supreme Court.) Plaintiff cannot sue them for monetary
damages because judges have absolute immunity from suit for damages for actions taken in
their official capacity. Mireles v. Waco, 502 U.S. 9 (1991); Abdella v. Catlin, 79 Wis. 2d

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270, 279, 255 N.W.2d 516 (1977). Judges remain immune even if their acts are “flawed
by commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978).
The Supreme Court has determined 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).
Defendant Burnett County Circuit Court must also be dismissed because it is not a
separate entity that may be sued under Wisconsin law.

Under Federal Rule of Civil

Procedure 17(b), state law determines whether a particular unit of state government has the
capacity may be sued. A Wisconsin statute provides expressly that a county may sue or be
sued, Wis. Stat. § 59.01, but I have found no Wisconsin statute or case allowing a county
circuit court to be sued as separate entity. Hoffman v. Kehl, 2008 WL 358083, at *3 (E.D.
Wis. Feb. 8, 2008) (concluding that “Kenosha County Circuit Courts” is not a suable entity
and is an arm of the state entitled to sovereign immunity under Eleventh Amendment).
Because the Barnett County Circuit Court is a part of the county government which it
serves, I conclude that is “not a separate suable entity.” Whiting v. Marathon County
Sheriff’s Dept., 382 F.3d 700, 704 (7th Cir. 2004) (sheriff’s department is not suable
because it is not legal entity separate from county). However, even if plaintiff had sued the
county directly, his claim is that county court judges violated his rights and, as I stated
above, § 1983 does not authorize injunctive relief against judges for an act or omission in

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their judicial capacity.
Finally, plaintiff’s claim for violation of Wisconsin Supreme Court Rule 70.36(1)(a)
must be dismissed because the court lacks jurisdiction to order a state court to follow state
court rules. In essence, plaintiff is requesting what is called a writ of mandamus. In limited
circumstances, a federal appellate court may use a writ of mandamus to direct a lower federal
court to take a particular action. E.g., In re Blodgett, 502 U.S. 236 (1992). However, a
federal district court does not have authority over a state court, which means that it has no
general power to direct state judicial officials in the performance of their duties. In re
Campbell, 264 F.3d 730, 731 (7th Cir. 2001); Hill v. Baxter Healthcare Corp., 405 F.3d
572, 577 (7th Cir. 2005). Therefore, plaintiff’s claim for violation of Wisconsin Supreme
Court Rule 70.36 must be dismissed for lack of jurisdiction. If petitioner seeks to compel
a state court judge to act, he must seek relief from the Wisconsin Court of Appeals.

ORDER
IT IS ORDERED that plaintiff Alan David McCormack’s complaint is DISMISSED
with prejudice for failure to state a claim. His motion for appointment of counsel is
DENIED as moot. The clerk of court is directed to close this case.
Entered this 23d day of October, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District J(udge

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