United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. 9), DENYING PLAINTIFF’S MOTION TO ALLOW CIRCUIT COURT CASE IN AS EVIDENCE (DKT. 3), DENYING AS MOOT PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. 4), DENYING PLAINTIFF’S REQUEST FOR PETITION FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM (DKT. NO. 6), DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DKT. 13), DENYING PLAINTIFF’S MOTION TO STAY SCREENING OF AMENDED COMPLAINT (DKT. NO. 20), SCREENING PLAINTIFF’S COMPLAINT AND DISMISSING CASE
HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE
In early May of 2015, the plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights during his 2014 criminal trial in Milwaukee County. Dkt. No. 1. Along with his complaint, the plaintiff filed a Motion to Allow Circuit Court Case In as Evidence, Dkt. No. 3, and a motion to appoint counsel, Dkt. No. 4. Later in May, the plaintiff filed a motion for leave to proceed in forma pauperis, Dkt. No. 9, and a motion for leave to file an amended complaint, Dkt. No. 13. The court received the initial partial filing fee on September 21, 2015, and two days later, the plaintiff filed an Amended Brief Legal Theory. Dkt. No. 19. Most recently, on January 7, 2016, the plaintiff filed a motion to stay screening of his amended complaint. Dkt. No. 20.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated at the time he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case-filing fee, as long as he meets certain conditions. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.
On May 21, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $9.62. Dkt. No. 11. The court received the plaintiff’s initial partial filing fee on September 21, 2015. The court will grant the plaintiff’s motion for leave to proceed in forma pauperis and will allow the plaintiff to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.
II. SCREENING OF PLAINTIFF’S COMPLAINT
A. Plaintiff’s Motion for Leave to File Amended Complaint
Before reaching the substance of the plaintiff’s complaint, the court notes that three weeks after he filed his original complaint, the plaintiff filed a motion for leave to file an amended complaint. Dkt. No. 13. In that motion, the plaintiff sought to delete all references to defendants Kelli Thompson (the Wisconsin State Public Defender) and Gary Rosenthal (a private defense attorney). Id. The motion indicated that since filing his original complaint, the plaintiff had determined that neither of these defendants were “solely responsible for the totality of the District Attorney’s Office and Clerk of Court Office actions in this action.” Id. at 2. The motion further states that “only the Individual who engaged in violations of the law, should have to take responsibility for their actions.” Id.
From a legal standpoint, the plaintiff is absolutely correct that §1983 “creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional violation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (emphasis added) (quoting Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994)). In addition, criminal defense attorneys cannot be sued under 42 U.S.C. §1983 because they do not qualify as “state actor[s].” Polk County v. Dodson, 454 U.S. 312, 318 (1981). Even an appointed public defender does not act under color of state law. Id.
If the court were going to allow the plaintiff to proceed with this case, it might have given him the opportunity to clean up his proposed amended complaint (Dkt. No. 13-1) by, for example, listing the claims he still wished to bring against the defendants he still wished to sue (rather than filing a list of the paragraphs he wished to remove from the original complaint). And the court will not discuss in its screening analysis below the claim against Thompson and Rosenthal contained in the original complaint. But because the court finds that the remainder of the original complaint fails to state claims upon which relief can be granted, and thus will dismiss this case in its entirety, the court will deny the plaintiff’s motion to amend the complaint as moot.
B. Plaintiff’s Amended Brief Legal Theory
On September 23, 2015, the court received a document from the plaintiff entitled “Amended Brief Legal Theory.” Dkt. No. 19. In the original complaint, the plaintiff’s “brief legal theory” alleged violations of the Equal Protection Clause, the “Mental Anguish Clause, ” deliberate indifference, negligence, “personal involvement, ” retaliation and defamation. Dkt. No. 1 at 12. The plaintiff’s recitation of these claims was three pages long. Id. at 12-14. The Amended Brief Legal Theory the plaintiff filed in September alleges violations of the “Mental Anguish Clause of 8th Amendment, ” retaliation, defamation, negligence, equal protection, and “liability.” Dkt. No. 19 at 1. This time, the plaintiff’s recitation of the claims was four pages long. Dkt. No. 19 at 1-4. Thus, the “amended brief legal theory” changes the causes of action the plaintiff has alleged, leaves out some claims, and changes the supporting arguments in support of other claims. As far as the court can tell, this is another attempt by the plaintiff to amend his complaint. The plaintiff is aware, because he has quoted the rule in prior pleadings, that Rule 15(a)(2) of the Federal Rules of Civil Procedure requires a party to obtain court leave to amend a complaint under these ...