Dunn, Phillip v. Levine, Elliott et al

Filing 5

ORDER dismissing plaintiff's 1 complaint with prejudice respect to his claims against defendants Elliot Levine, Jessica Skemp and Patricia O'Neil. Plaintiff's claims against defendants Ronald Tischer, Patricia O'Neil, Ryan Sec ord, Andrew Dittman, Shawn Kudron, Dan Ulrich, Nathan Poke and the City of La Crosse are dismissed without prejudice. Plaintiff may have until August 20, 2015, to file an amended complaint with respect to his claims against these defendants. Plaintiff's request to stay the case, dkt. # 4 , is DENIED. Signed by District Judge Barbara B. Crabb on 7/30/2015. (jef)(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILLIP S. DUNN,
OPINION AND ORDER
Plaintiff,
15-cv-430-bbc
v.
ELLIOT LEVINE, JESSICA SKEMP,
RONALD TISCHER, PATRICIA O’NEIL,
RYAN SECORD, ANDREW DITTMAN,
SHAWN KUDRON, DAN ULRICH,
NATHAN POKE and
THE CITY OF LA CROSSE, WISCONSIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Phillip Dunn has filed a complaint in which he alleges that various
public officials violated his constitutional rights in various ways in 2014. Because plaintiff
is proceeding under the in forma pauperis statute, 28 U.S.C. § 1915, I must screen his
complaint to determine whether it states a claim upon which relief may be granted. For the
reasons discussed below, I cannot allow plaintiff to proceed on any of his claims at this time.
However, I will allow plaintiff to file an amended complaint to address problems in the
complaint that can be cured.
Most of plaintiff’s allegations seem to arise out of state criminal proceedings, though
he does not describe those proceedings and he provides little context for any of his
allegations. First, plaintiff alleges that his state public defender, defendant Patricia O’Neil,

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failed to argue an issue about sentence credit. Plaintiff does not explain why he believes he
was entitled to more sentence credit, but even if I overlook the lack of detail, this claim has
more fundamental problems. First, the general rule is that a challenge to the validity of a
prisoner’s sentence cannot be brought in a civil case under 42 U.S.C. § 1983. Matz v.
Klotka, 769 F.3d 517, 530-31 (7th Cir. 2014) (“[The plaintiff] cannot pursue a § 1983
claim for damages . . . because success on his claim would call into question his sentence.”);
Helman v. Duhaime, 742 F.3d 760, 762 (7th Cir. 2014) (“[A] district court must dismiss
a § 1983 action if a judgment in favor of the plaintiff in that § 1983 action would necessarily
imply the invalidity of his criminal conviction or sentence.”). Rather, the prisoner must first
use other means to overturn the sentence, such as a petition for a writ of habeas corpus.
Rodriguez v. Cook County, Illinois, 664 F.3d 627, 630 (7th Cir. 2011). Second, even if I
assume that plaintiff is entitled to an exception to that rule because he was not incarcerated
long enough to bring a habeas petition, Burd v. Sessler, 702 F.3d 429, 435 (7th Cir. 2012),
it is well established that a client cannot sue a public defender for alleged constitutional
violations. Polk County v. Dodson, 454 U.S. 312, 317-18 (1981). This is because civil
actions under the Constitution are limited to defendants acting “under color of law,” which
means they are representing the government. Public defenders are representing their clients
against the government, so they are not acting “under color of law.” Id. at 318-19.
Next, plaintiff alleges that a state court judge, defendant Elliot Levine, denied his
request for a sentence modification. This is another challenge to the sentence plaintiff
received, so it again raises the question whether plaintiff can bring this claim under § 1983

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rather than a petition for a writ of habeas corpus. In any event, judges such as defendant
Levine cannot be sued under § 1983 for actions they take in a judicial capacity. Coleman
v. Dunlap, 695 F.3d 650, 652 (7th Cir. 2012). If plaintiff did not like a ruling from the
state court, his remedy was to file an appeal.
Plaintiff’s only allegation against defendant Jessica Skemp, a state prosecutor, is that
Skemp “admitt[ed] she should never have filed the criminal complaint in my case.” Again,
plaintiff provides no context for this allegation. Regardless, like judges, prosecutors cannot
be sued for official actions such as a charging decisions, Lewis v. Mills, 677 F.3d 324, 330
(7th Cir. 2012), so this claim must be dismissed as well.
The remaining individual defendants are identified by plaintiff as employees of the
La Crosse police department. Plaintiff says that defendant Ronald Tischer is the chief of
police; defendants Andrew Ditrtman and Ryan Secord are “investigators” for the police
department; and defendants Shawn Kudron, Dan Ulrich and Nathan Poke are police
officers. (Plaintiff includes “Tony Delap” in the list of police officers as well, but he did not
include Delap in the caption of his complaint, so I cannot consider Delap as a defendant.
Myles v. United States, 416 F.3d 551, 551 (7th Cir 2005) (“[T]o make someone a party the
plaintiff must specify him in the caption.”).)
Plaintiff does not mention most of these officers in the body of his complaint. He
alleges generally that “police officers” entered his home without his consent on October 28,
2014, but he does not identify any particular police officer or explain what they did. He
alleges that defendant Secord admitted at a hearing later that the officers did not have

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permission to enter plaintiff’s home, but he does not say whether Secord participated in the
search.

Later in his complaint, plaintiff alleges that “two of the officers who illegally

searched . . . my residence” conducted an unlawful traffic stop against plaintiff in December
2014. Again, however, plaintiff does not identify those officers by name. Without that
information, I cannot allow plaintiff to proceed on claims against any of the officers.
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008) (plaintiffs may not rely on
"[v]ague references to a group of ‘defendants,' without specific allegations tying the
individual defendants to the alleged unconstitutional conduct").
Finally, plaintiff alleges that the City of La Crosse should be held liable for “negligent
supervision” and a “pattern[] and practice[]” of violating constitutional rights. However, the
city cannot be held liable for negligent conduct under § 1983. Rather, the city must have
its own unconstitutional policy or custom. King v. Kramer, 763 F.3d 635, 649 (7th Cir.
2014). Although a pattern of unconstitutional conduct can provide grounds for inferring
that the city had an unconstitutional policy, Shields v. Illinois Dept. of Corrections, 746
F.3d 782, 796 (7th Cir. 2014), plaintiff does not provide any details about the alleged
pattern, so he has not given defendants sufficient notice of this claim. A bare allegation that
defendants violated his rights on multiple occasions is not sufficient. Grieveson, 538 F.3d
at 774-75.
Plaintiff’s claims against defendants O’Neil, Levine and Skemp cannot succeed under
any circumstances in the context of this case, so I am dismissing the complaint as to those
claims with prejudice. (The phrase “with prejudice” means that plaintiff may not raise those

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same claims again in this lawsuit or any other.)

However, I am giving plaintiff an

opportunity to amend his complaint regarding his claims against the police officers and the
city. If plaintiff chooses to file an amended complaint, he should include the following
information:
•

the names of the police officers who were involved in each alleged violation of
his rights;

•

the particular conduct of each of the police officers who allegedly violated his
rights;

•

all the conduct that plaintiff believes is part of a city policy that violates the
Constitution.

Plaintiff is reminded that all defendants must be included in the caption of the
complaint.
I must address one final matter. When plaintiff filed this lawsuit, he listed a private
residence as his address. However, in a letter the court received on July 22, 2015, plaintiff
says that he is now in the county jail because of a “child support warrant.” Dkt. #4. At the
end of the letter, he asks for “a delay in any decisions until . . . I am released,” but he does
not say when that may occur.
It is not this court’s general practice to stay a case for an indefinite period of time.
In any event, many pro se parties litigate cases while they are incarcerated and I see no
reason why plaintiff cannot do the same. Although he says that he does not have his “paper
work” related to this case, plaintiff should not need any documents to prepare an amended

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complaint.

At this stage of the proceedings, plaintiff is not required to make a legal

argument or present evidence.

All he needs to do is describe with more detail what

happened to him, which is information he should already know. Accordingly, I decline to
stay the case at this time. Of course, if plaintiff does not want to litigate this case now, he
is free to dismiss his remaining claims without prejudice under Fed. R. Civ. P. 41 and file a
new lawsuit at a later date, so long as he complies with the applicable statute of limitations.

ORDER
IT IS ORDERED that
1. Plaintiff Phillip Dunn’s complaint is DISMISSED WITH PREJUDICE with
respect to his claims against defendants Elliot Levine, Jessica Skemp and Patricia O’Neil.
2. Plaintiff’s claims against defendants Ronald Tischer, Patricia O’Neil, Ryan Secord,
Andrew Dittman, Shawn Kudron, Dan Ulrich, Nathan Poke and the City of La Crosse are
DISMISSED WITHOUT PREJUDICE. Plaintiff may have until August 20, 2015, to file
an amended complaint with respect to his claims against these defendants.
3. If plaintiff chooses to file an amended complaint, he should include the additional
information described in this order. If plaintiff does not respond by August 20, 2015, I will
dismiss the remaining claims with prejudice and direct the clerk of court to close this case.

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4. Plaintiff’s request to stay the case, dkt. #4, is DENIED.
Entered this 30th day of July, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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