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Burke v. Litsscher

United States District Court, E.D. Wisconsin

January 18, 2017

REGINALD D. BURKE, SR., Plaintiff,
v.
JON E. LITSCHER, DAVID MELBY, LANCE WIERSMA, MELISSA M. LOHRE, GRACE ROBERTS, AMY HARPER, MONICA LUKACH, DENISE SYMDON, PENNY VOGT, and TERESA REICHMANN, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         The plaintiff filed a pro se complaint for alleged violations of his constitutional rights. (Docket #1). This matter comes before the court on the plaintiff's petition to proceed in forma pauperis. (Docket #2). Notwithstanding the payment of any filing fee, the Court must dismiss a complaint if it raises claims that are “frivolous or malicious, ” that is, fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he/she was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him/her by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff's pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         The focus of the plaintiff's complaint is that he is being improperly kept on the Wisconsin Sex Offender Registry, and will be forced to do so for the remainder of his life. His registration is, however, proper under Wisconsin law and according to the facts alleged and exhibits attached to the complaint. In 1979, a jury convicted the plaintiff of, inter alia, two counts of second degree sexual assault. See State v. Reginald Donnett Burke, Milwaukee County Circuit Court, 1979-CF-5184. In 1996, he pleaded no contest to, inter alia, two counts of third degree sexual assault. See State of Wisconsin v. Reginald D. Burke, Walworth County Circuit Court, 1996-CF-226.

         Wisconsin statutes provide that anyone convicted of a sex offense after December 25, 1993, must comply with sex offender reporting requirements. Wis.Stat. § 301.45(1g)(a). All of the above convictions are “sex offenses, ” but the 1979 offenses do not fall within the stated time frame.[1] This is important because lifetime registration applies to, among other persons, those who have been found guilty of two or more sex offenses. Id. § 301.45(5)(b)1. The plaintiff believes that because the 1979 offenses do not count under Section 301.45(1g)(a), he should only be considered to have one registerable sex offense, and thus he need not be subject to lifetime registration. He contends the defendants, various members of the Wisconsin Department of Corrections (the “DOC”), have been improperly counting the 1979 offenses so as to keep him on the registry.

         The plaintiff's claim is based on a misunderstanding of how the relevant statutes operate in conjunction with one another. As noted above, the 1996 offenses fall within Section 301.45(1g)(a), and so they impose a registration requirement on the plaintiff. Section 301.45(5) governs release from the registration requirements, and its relevant subsections are as follows:

(b) A person who is covered under sub. (1g)(a) . . . shall continue to comply with the [registration] requirements of this section until his or her death if any of the following applies[.]
. . .
1. The person has, on 2 or more separate occasions, been convicted . . . for a sex offense[.]

Id. § 301.45(5)(b) and (b)1. Unlike Section 301.45(1g)(a), Section 301.45(5)(b)1 has no time limitation. Thus, for purposes of reaching the two sex offense threshold, the state must count any sex offenses committed throughout the person's lifetime. Because he has two separate sex offenses, one from 1996 and the other 1979, the plaintiff meets Section 301.45(5)(b)1's requirements. In other words, the 1996 offenses placed the plaintiff on the registry, and when considered together with the 1979 offenses, these statutes prevent him from leaving the registry, in this case, for his entire life.[2][3]

         With that confusion alleviated, the Court notes that most of the complaint is either based on the registration requirement itself, or issues derived therefrom, such as the need to wear a location-monitoring ankle bracelet. As described above, these allegations fail to state valid claims for relief; if the defendants were correct in keeping the plaintiff on the registry, they could not have violated any of his constitutional rights. However, it is not clear whether the plaintiff's complaint attempts to state claims which are not dependent on the lifetime registration issue. Consequently, the Court will permit the plaintiff to amend his complaint to remove the invalid claims described above and more clearly state any other potential claims he attempted to bring in the original complaint. The amended complaint must be received no later than February 8, 2017. If no amended complaint is received, the Court will assume that the ...


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