Pruett, Darryl v. Damon, John et al

Filing 9

ORDER dismissing 1 Petition for Writ of Habeas Corpus without prejudice; denying 8 Motion for Recusal or New Judge. Signed by District Judge William M. Conley on 9/10/2018. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DARRYL WAYNE PRUETT,
Plaintiff/Petitioner,

OPINION AND ORDER

v.

17-cv-936-wmc
17-cv-937-wmc

JOHN A. DAMON,
THOMAS S. BILSKI,
Defendants/Respondents.
In these two proceedings pro se plaintiff/petitioner Darryl Wayne Pruett challenges
his December 3, 2008, judgment of conviction in the Circuit Court for Trempeauleau
County, Wisconsin, for sexual assault of a child under the age of 16, and for repeated
sexual assault of a child. However, the court must dismiss both cases because in Pruett v.
Smith, Case No. 15-cv-708-wmc, dkt. #29 (W.D. Wis. July 9, 2018), this court recently
denied Pruett relief on all of the claims he describes in these two cases.
BACKGROUND
In Case No. 15-cv-708, Pruett filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, raising several grounds for relief: (1) the circuit court judge was biased; (2)
a false rape allegation inappropriately increased his sentence; (3) he was charged with
multiplicitous counts; and (4) the punishment constituted cruel and unusual punishment.
The court dismissed the judicial bias and cruel and unusual punishment grounds on
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procedural default grounds, but the court directed the state to respond to Pruett’s other
grounds for relief. Pruett, Case No. 15-cv-708-wmc, dkt. #10, at 3. After reviewing the
merits of those claims, the court rejected Pruett’s claims that his trial lawyer was
constitutionally ineffective for failing to (1) object to one of the victim’s allegedly false
statements about a rape, (2) argue that his charges were multiplicitous or (3) pursue a plea
of not guilty by reason of mental disease or defect. Id., dkt. #29. Pruett has neither filed
a motion for reconsideration of that decision, nor does it appear that he is appealing the
judgment denying him relief.
OPINION
I.

Case No. 17-cv-936
In Case No. 17-cv-936, Pruett does not specify the relief he seeks, but he has filled

out this court’s civil lawsuit complaint form and claims that his constitutional rights were
violated during the course of his Trempealeau County criminal proceeding because the trial
judge was biased against him. It is unclear whether Pruett is attempting to obtain money
damages in this case, but it is reasonable to infer that he may be pursuing a claim for
damages under 42 U.S.C. § 1983. However, such a claim is barred by United States
Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). As explained
in Heck, a plaintiff is precluded from bringing claims for damages if a judgment in favor of
the plaintiff would “necessarily imply the invalidity of his [state criminal] conviction or
sentence.” Id. This bar applies unless the underlying conviction or sentence is been
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“reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus.” Id. at 486-87. This same bar applies here unless the plaintiff’s
state court revocation proceeding has already been overturned. See Knowlin v. Thompson,
207 F.3d 907, 909 (7th Cir. 2000) (recovery in a federal challenge “would necessarily
imply the invalidity of [plaintiff’s] Wisconsin parole revocation, which Heck instructs
cannot be shown through a § 1983 suit”).

Since no Wisconsin or federal court has

concluded that his conviction was unlawful, Pruett cannot pursue a claim for money
damages in this court.
Furthermore, to the extent Pruett filed this lawsuit seeking a release from custody,
the only federal proceeding to obtain that form of relief is a petition for a writ of habeas
corpus brought under 28 U.S.C. § 2254. Yet the Court of Appeals for the Seventh Circuit
has held that “[w]hen a plaintiff files a § 1983 action that cannot be resolved without
inquiring into the validity of confinement, the court should dismiss the suit without
prejudice” rather than convert it into a petition for habeas corpus. Copus v. City of Edgerton,
96 F.3d 1038, 1039 (7th Cir. 1996) (citing Heck, 512 U.S. 477). Accordingly, the court
will dismiss Pruett’s claim without prejudice. The court notes, however, that it would be
futile for Pruett to restyle this action as a § 2254 petition in this court, since he has already
filed such a petition in Case No. 17-cv-937, and, for the reasons explained next, that
petition fails.

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II.

Case No. 17-cv-937
Pruett seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising the same

grounds for relief that he outlines in the ‘936 case.

However, under 28 U.S.C.

§ 2244(b)(3)(A), a petitioner may not file a second or successive application for habeas
relief in the district court unless he first seeks and obtains an order from the appropriate
court of appeals authorizing the district court to consider the application. Since Pruett has
not obtained an order from the Court of Appeals for the Seventh Circuit to consider the
application, this court must dismiss the ‘937 case.
One final note. Pruett recently filed motions seeking my recusal or another judge.
(Case No. 17-cv-936, dkts. ##8,9; Case No 17-cv-937, dkt. #8.) I am denying those
motions. While Pruett complains that I do not understand the nature of his claims, he has
not identified any actual ground for recusal, nor does he suggest that I am actually biased
against him. For that reason, and because there is no actual basis for recusal, these motions
are denied.
ORDER
IT IS ORDERED that:
1. Case No. 17-cv-937 is DISMISSED WITHOUT PREJUDICE for petitioner’s
failure to obtain authorization as required by 28 U.S.C. § 2244(b)(3)(A).
2. Case No. 17-cv-936 is DISMISSED pursuant to Heck v. Humphrey, 512 U.S.
477, 486-87 (1994).
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3. Darryl Pruett’s motions seeking recusal or a new judge (Case No. 17-cv-936,
dkt. ##8, 9; Case No 17-cv-937, dkt. #8) are DENIED.
Entered this 10th day of September, 2018.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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