United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
filed a pro se complaint for alleged violations of
his constitutional rights. (Docket #1). This matter comes
before the court on 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).
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)
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)). 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
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/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,
substantive allegations are incredibly confused and nearly
impossible to read. (Docket #1 at 3-6). Construing his
complaint with exceeding generosity, the Court gleans the
following. Plaintiff was convicted of first degree sexual
assault in the late 1970s. Sometime after his release from
the resulting sentence, he was required to register as a sex
offender. Though Plaintiff complains that this violates
various constitutional protections, retroactive sex offender
registration statutes are permissible. Steward v.
Folz, 190 F. App'x 476 (7th Cir. 2006) (similar sex
offender registration statute did not offend the ex post
facto clause, the double jeopardy clause, or due
process). Further, Plaintiff's registration appears to be
in accordance with Wisconsin law. Plaintiff began his
registration upon release from imprisonment in 1994. The
Wisconsin sex offender registration statute provides that
anyone released from prison or who is on supervised release
after December 1993, who was incarcerated and/or under
supervision for an applicable offense (including sexual
assault), must register. Wis.Stat. § 301.45(1g)(b).
remaining complaints focus on the administration of the sex
offender registration program, namely that he wants to be
removed from it. Again, the registration statute reveals that
Plaintiff's continued registration in proper. His
underlying offense was for first degree sexual assault, and
the Wisconsin registration statute provides that such a
conviction requires lifetime registration. Id.
§ 5(b)(1m) (“A person who is covered under sub.
(1g)[(b)] . . . shall continue to comply with the
[registration] requirements of this section until his or her
death if any of the following applies: The person has been
convicted . . . for a violation, or for the solicitation,
conspiracy or attempt to commit a violation, of s. 940.225(1)
[which defines first sexual assault][.]”).
Plaintiff's complaint describes certain recent attempts
to be removed from the registry, but such action would be
entirely within the discretion of the appropriate Wisconsin
state officials (presumably the relevant prosecutor, the
Department of Corrections, or both). Their decisions are, at
best, matters involving the interpretation of Wisconsin law,
a task which is reserved for Wisconsin state courts. Because
Plaintiff fails to state any cognizable federal claims, his
complaint must be dismissed. It will be dismissed without
prejudice to the extent Plaintiff wishes to bring any claims
in Wisconsin court.
the complaint in this action will be dismissed, the Court
will also deny Plaintiff's request for appointed counsel
as moot. (Docket #3).
IT IS ORDERED that the plaintiff's motion to proceed
in forma pauperis (Docket #2) be and the same is hereby
FURTHER ORDERED that the plaintiff's motion for
appointment of counsel (Docket #3) be and the same is hereby
DENIED as moot;
FURTHER ORDERED that this action be and the same is hereby
DISMISSED without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim upon which relief
may be granted; and
COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. §
1915(a)(3) unless the plaintiff ...