Newell, Donald v. Rumphol, Bridget et al

Filing 21

ORDER dismissing case no. 15-cv-617-bbc as unripe. Plaintiff Donald Newell may refile that case when he can show that his release date is near. The clerk of court is directed to enter judgment accordingly. Plaintiff's other requests are DENIED. Signed by District Judge Barbara B. Crabb on 2/11/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONALD NEWELL,
ORDER
Plaintiff,
15-cv-616-bbc
v.
BRIDGET RUMPHOL, CHIPPEWA COUNTY
and STATE OF WISCONSIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONALD NEWELL,
ORDER
Plaintiff,
15-cv-617-bbc
v.
CITY OF CHIPPEWA FALLS,
CHIPPEWA COUNTY and STATE OF WISCONSIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Donald Newell filed both of these cases in September 2015. In case
no. 15-cv-616-bbc, he challenged rules of supervision that would be imposed on him by the
state after he was released from state custody. In case no. 15-cv-617-bbc, he challenged the
constitutionality of an ordinance that limited the movement of persons convicted of certain
sex crimes.

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In accordance with 28 U.S.C. § 1915(e)(2) and § 1915A, I screened both of plaintiff’s
complaints.

With respect to case no. 15-cv-616-bbc, I concluded that plaintiff could not

challenge his rules of supervision in a civil case filed under 42 U.S.C. § 1983. Rather, he
must bring his challenge in a petition for a writ of habeas corpus under 28 U.S.C. § 2254,
but only after exhausting his remedies in state court. Williams v. Wisconsin, 336 F.3d 576,
579 (7th Cir.2003); Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977).
Accordingly, I dismissed the complaint without prejudice. Dkt. #13.
In the order screening case no. 15-cv-617-bbc, I directed plaintiff to file supplemental
materials showing whether he was likely to be released from prison soon. Dkt. #10. If
plaintiff was going to remain incarcerated for the foreseeable future, then any claim
challenging a law affecting him only after release would not be ripe. Clapper v. Amnesty
International USA, 133 S. Ct. 1138, 1147 (2013); Texas v. United States, 523 U.S. 296,
300 (1998).
Since the court issued those orders, plaintiff has filed a number of different requests
with the court, mostly in case no. 15-cv-616-bbc, even though that case is closed. First, on
January 19, 2016, he requested a “subpoena” for a statement of a parole agent at an October
2015 hearing before the parole board. Dkt. #15. Second, on January 25, 2016, he alleged
that he was treated unfairly in various ways at a state court hearing on January 12, 2016 to
determine whether he should be released. He asked to “be released from involuntary
confinement” and for “any just compensation and damages.”

Dkt. #16.

Finally, on

February 4, 2016, in both cases, plaintiff alleged that he was not receiving his veteran’s

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disability pension as he believed he should and that staff at the Chippewa County jail were
refusing to provide him a new hearing aid. Dkt. #18 (in case no. 15-cv-616-bbc) and dkt.
#13 (in case no. 15-cv-617-bbc).
None of plaintiff’s filings directly address the question of plaintiff’s anticipated
release, but plaintiff’s January 25 filing suggests that he will not be released in the near
future. In any event, plaintiff’s deadline for filing supplemental materials regarding his
release date was February 2, 2016. Because plaintiff has not shown that he is going to be
released soon, I am dismissing case no. 15-cv-617-bbc without prejudice to his refiling it
when his release date is approaching.
I am denying all of plaintiff’s other requests.

To the extent that plaintiff is

contending that he is being held unlawfully, he must exhaust his state court remedies before
he can raise that issue in federal court. Preiser v. Rodriguez, 411 U.S. 475 (1973). To
comply with the exhaustion requirement, he “must ‘fairly present' his claim in each
appropriate state court (including a state supreme court with powers of discretionary
review)." Baldwin v. Reese, 541 U.S. 27, 29 (2004). Plaintiff seems to realize this because
he sent this court a copy of a petition for a writ of certiorari that he filed in state court to
challenge his confinement. Dkt. #14 (in case no. 15-cv-617-bbc). If plaintiff does not
obtain relief in state court or on appeal, he may file a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in this court.
Plaintiff’s remaining requests are outside the scope of both of these cases. If plaintiff
believes that his conditions at the jail violate his federal rights, he will have to file a new

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lawsuit after he has completed the jail’s grievance process, as required by 42 U.S.C. §
1997e(a).

ORDER
IT IS ORDERED that
1. Case no. 15-cv-617-bbc is DISMISSED as unripe. Plaintiff Donald Newell may
refile that case when he can show that his release date is near. The clerk of court is directed
to enter judgment accordingly.
2. Plaintiff’s other requests are DENIED.
Entered this 11th day of February, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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