United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
plaintiff, who is incarcerated at Oshkosh Correctional
Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on
the plaintiff's motion to proceed in forma
pauperis. (Docket #2). The plaintiff has been assessed
and paid an initial partial filing fee of $16.81. 28 U.S.C.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that 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. §
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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
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 Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); see Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). 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); Christopher, 384 F.3d at 881.
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.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: 1) he was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him 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. Vill. of N. 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,
plaintiff states that he was “illegally confined from
July 11, 2012 through December or January 2013" at the
hands of these defendants. (Docket #1 at 4). Specifically,
the defendant Chad Lemarond (“Lemarond”) was the
plaintiff's probation officer. Id. At an intake
meeting on July 11, 2012, Lemarond placed the plaintiff on
electronic monitoring. Id. The plaintiff maintains
that this was not a condition of his probation nor was there
any other reason to put him on electronic monitoring.
plaintiff further alleges that Lemarond placed other onerous
conditions upon him. Id. Lemarond did not let him go
to Michigan to retrieve a vehicle he owned, and did not let
him visit his property in Price County. Id. Lemarond
forced also him to purchase landline telephone services for
his home. Id. The plaintiff claims that he went to
the emergency room one day for a back injury, but was forced
to leave because of a curfew set by Lemarond. Id.
The conditions associated with electronic monitoring prevent
the plaintiff from obtaining a number of good-paying jobs.
Id. at 4-5. Finally, the plaintiff states that
Lemarond did not permit him to visit his child. Id.
at 5. The plaintiff admits that one of his conditions of
supervision was that he could not contact the victims of his
crime, which apparently included his child. Id. He
references a divorce decree which seems to have permitted
such access, and the plaintiff appears to contend that the
decree overrode the condition of supervision. Id.
plaintiff alleges that the defendant Jane Doe was
Lemarond's supervisor, and despite the plaintiff's
complaints about the conditions, she did not alter them.
Id. Finally, the plaintiff asserts that
“Defendant Baxter” had tried to get the
Plaintiff's Extended Supervision extended, wherein
according to his Judgment of Conviction, contained within the
notes, the comment by the Court was: Case and Time cannot be
extended over debts to the Courts.” Id. The
Court assumes from this allegation that the defendant Katie
Baxter (“Baxter”) attempted to extend the
plaintiff's supervision because he owed money to the
court or probation service.
plaintiff includes a list of constitutional provisions which
were allegedly violated by this conduct, but it is simply a
laundry list of provisions which is not connected to any of
the factual allegations. Id. at 2. For relief, he
seeks an order granting access to his child, an injunction
removing these defendants as his probation supervisors,
damages, credit “for the time he was illegally detained
on the Electronic Monitoring, ” and an order preventing
him from being placed on electronic monitoring in the future.
Id. at 6-7.
the plaintiff's claims are the proper subject of a
petition for a writ of habeas corpus. The Seventh Circuit
holds that conditions of probation are a form of custody.
Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th
Cir. 1977). A challenge to those conditions is an attack on
the fact and/or duration of the plaintiff's confinement,
which “is the traditional function of the writ of
habeas corpus.” Id. Further, the plaintiff may
not proceed on a claim “for having been recommitted
based on the violation of release conditions that he contends
are unconstitutional[.] . . . A successful damages claim
would vitiate the basis for his commitment, and Heck v.
Humphrey, 512 U.S. 477 . . . (1994), bars civil damages
actions where a ‘judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence.'” Henderson v. Bryant, 606 F.
App'x 301, 304 (7th Cir. 2015). A claim may avoid this
rule, however, if it seeks damages for applying conditions of
supervision in an unconstitutional manner. Id. at
complaint is silent on the full extent of the conditions to
which the plaintiff is subject, the criminal case in which
those conditions were imposed, and why he is in prison now.
Without these facts, the Court cannot conclude that all of
the plaintiff's claims are invalid. However, only a
limited subset survives screening, and upon appearance by the
defendants, the remainder may be dismissed pursuant to
applicable affirmative defenses, such as immunity or the
Heck doctrine, if the facts show that the
plaintiff's current confinement is pursuant to a
violation of the conditions. Id. Still, at this
stage, the Court finds that the plaintiff may proceed on the
1) Lemarond and Jane Doe's imposition of conditions of
probation beyond those permitted by the applicable criminal
judgment(s), or the imposition of existing conditions in an
unconstitutional manner, constituting deliberate indifference
to his right to be free ...