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Dallas v. County of Milwaukee

United States District Court, W.D. Wisconsin

January 26, 2017



          JAMES D. PETERSON District Judge

         Pro se prisoner and plaintiff Laponzo Dallas is proceeding on a claim that Milwaukee County, David Clarke, and unknown jail staff members are refusing to provide treatment for his persistent symptom of vomiting blood, in violation of the Eighth Amendment. Now Dallas has filed two motions: (1) a motion for reconsideration of a portion of the order screening his complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A, Dkt. 13; and (2) a motion for leave to amend his complaint to add several defendants, Dkt. 14. For the reasons explained below, I am denying both motions.


         A. Motion for Reconsideration

         Dallas's motion for reconsideration is not easy to follow, but I understand him to raising the following contentions: (1) the court erred in dismissing the complaint as to “Jailer Marchant, ” “Jailer Wierzba, ” and Mary Guimont; and (2) the court misconstrued his motion for voluntary dismissal. Also, Dallas includes unrelated requests to “compel the business office” to give him a legal loan and to order his release from custody. I will consider each issue in turn.

         1. Jailer Marchant, Jailer Wierzba, and Mary Guimont

         Dallas has not persuaded me that he should be allowed to proceed against any of these individuals. In the screening order, I dismissed Dallas's claim against defendant Marchant on the ground that Dallas did not discuss that defendant in the body of his complaint. Dallas says now that Marchant denied him medical care in February 2016. That allegation is not sufficient to allow Dallas to proceed against Marchant. As I explained to Dallas in the screening order, he is a restricted filer under both 28 U.S.C. § 1915(g) and Dallas v. Gamble, 2 F.App'x 563 (7th Cir. 2001), because of his history of frivolous litigation. This means that Dallas cannot proceed on a claim unless he is in imminent danger of serious physical injury. Because Dallas does not allege that Marchant is denying him needed medical care now, he cannot proceed on a claim against Marchant.

         I did not discuss Jailer Wierzba in the screening order because that person is not listed as a defendant in the caption of any of the complaints that Dallas filed. In any event, even if I construe Dallas's motion as one for leave to amend his complaint to add Wierzba, I would deny the motion for the same reason that I denied the request to proceed against Marchant. Again, Dallas says that Wierzba denied him medical care in February 2016, but he does not allege that Wierzba is denying him care now.

         I dismissed Dallas's claim against Mary Guimont because Dallas alleged that she was his public defender, which means that she was not acting “under color of law” and cannot be sued under 42 U.S.C. § 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Dallas cites Haines v. Kerner, 404 U.S. 519 (1972), for the proposition that Guimont is “not immune, ” but Haines is about pleading standards. Because I did not dismiss the claim against Guimont because of any failure by Dallas to provide details, Haines is not instructive. Dallas also cites Haines for the proposition that a court may not dismiss a defendant without giving the plaintiff an opportunity to “offer supporting evid[ence], ” Dkt. 13, at 4, but that is a misstatement as well. In Haines, 404 U.S. at 530, the Court stated that a prisoner must be permitted to offer supporting evidence if he states a claim. Because Guimont cannot be sued under § 1983, Dallas did not state a claim against her.

         2. Scope of voluntary dismissal

         After Dallas filed his original complaint, he filed a “motion to amend complaint, ” Dkt. 4, an “amended complaint, ” Dkt. 6, and a motion for leave to amend his complaint to add Patricia Gonzalez as a defendant, Dkt. 8. However, before I could consider any of those documents, Dallas filed an untitled document, Dkt. 9, which I construed in the screening order as a motion to voluntarily dismiss all of his complaints except the original one.

         Dallas says that I misconstrued his motion, but even now, it is not clear from his latest motion which claims in his subsequent complaints he wishes to pursue. Even if I assume that he wishes to pursue all of them, he cannot proceed on any of them.

         First, Dallas includes claims against a prosecutor and a circuit court judge regarding conduct that occurred in court, but both prosecutors and judges have immunity for actions taken in that context. Mireles v. Waco, 502 U.S. 9 (1991) (judges cannot be sued for acts taken in a judicial capacity); Kalina v. Fletcher, 522 U.S. 118 (1997) (prosecutors cannot be sued for acts taken within scope of duties as prosecutor). Second, Dallas names individuals at the Milwaukee House of Correction, where he is no longer housed. Again, because Dallas's filing restriction limits him to claims related to danger he faces now, individuals who are no longer involved in his care are not proper defendants.

         Finally, Dallas raises claims about a stolen Bible, a “false booking, ” his blood pressure, his back, and an incident in which another prisoner flipped his mattress over while he was sleeping on it, but none of those claims are properly before the court. A stolen Bible does not threaten Dallas's health or safety, so he cannot raise that claim in this court until his sanctions are lifted. With respect to the “false booking, ” if Dallas believes that he is being incarcerated wrongfully, he must file a petition for a writ of habeas corpus after exhausting his remedies in state court. Jackson v. Clements, 796 F.3d 841, 842-43 (7th Cir. 2015). As to his back and blood pressure and the mattress issue, Dallas has not alleged that any of those issues pose an imminent threat to his health or safety, so those claims are also barred by the filing restriction. Even if those issues did pose a serious risk of physical injury, they are ...

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