United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
Cruz Robles, who is incarcerated at Racine Correctional
Institution, filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. This
matter comes before the court on the plaintiff's petition
for leave to proceed without prepaying the full filing fee.
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing fee of his complaint, as required under
28 U.S.C. § 1915(a)(2). Plaintiff lacks the funds to pay
the partial filing fee. Therefore, the court waives the
initial partial filing fee. 28 U.S.C. § 1915(b)(4).
Plaintiff's motion to proceed in forma pauperis
will be granted.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or 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. §
1915A(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).
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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). The court accepts the factual allegations as true
and liberally construes them in the plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.
2013). Nevertheless, the complaint's allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
precise nature of Robles' action is unclear. Robles
claims he was wrongfully incarcerated from April 21, 2015 to
December 1, 2015 in Waukesha County, Wisconsin Case No.
2011CF1116. He alleges that his sentence was intended to be
consecutive, but his probation agent wrongfully determined
that his sentence was concurrent. This makes no sense. If his
sentence was supposed to be consecutive and his PO made it
concurrent, how did this error result in extra time in jail?
It should have caused less.
also asserts that Judge Foster ordered that his sentence be
consecutive to any other sentence. He claims that as a result
of the imposition of the consecutive sentence, his probation
agent revoked his probation on September 26, 2013, and he
began serving the wrongfully imposed sentence on or about
April 21, 2015. But this doesn't follow either. If the
judge imposed a consecutive sentence, what did his PO have to
do with it? Revoking his probation doesn't affect the
sentence imposed by the judge.
on these confused factual allegations, Robles has brought
this 42 U.S.C. § 1983 action against his parole agent,
her supervisor, and the regional supervisor seeking an award
of damages for each day he was wrongfully incarcerated as
well as lost wages at $15.00 per hour. Although pro se
filings are to be read liberally, Robles' complaint does
not provide enough facts to determine whether he states a
claim upon which relief may be granted. The complaint does
not allow any of the named defendants or the court to
understand what they are alleged to have actually done or not
done that caused him to serve additional time in jail over
and above what the judge ordered as his sentence. Robles
needs to tell the court and the defendants the who, what,
when, and where of his claim, and what injury or damage the
defendants' actions actually caused the plaintiff. The
essential function of a complaint is to provide such notice,
see Federal Rule of Civil Procedure 8(a), and the
defendants should not be forced to incur the cost of
defending themselves in a federal lawsuit absent some
indication that the plaintiff has a cognizable federal claim
and enough information so they know what his claim is about.
note that in order for a plaintiff to prevail on an Eighth
Amendment claim for continued incarceration beyond the lawful
sentence imposed by the court, the plaintiff must show more
than a mere mistake by government officers or employees. To
establish liability under § 1983 on such a claim, a
plaintiff must prove three elements:
First, a plaintiff must demonstrate that a prison official
had knowledge of the prisoner's problem and thus of the
risk that unwarranted punishment was being, or would be,
inflicted. Second, the plaintiff must show that the official
either failed to act or took only ineffectual action under
the circumstances, indicating that his response to the
problem was a product of deliberate indifference to the
prisoner's plight. Finally, the plaintiff must show a
casual connection between the official's response to the
problem and the unjustified detention.
Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993);
see also Campbell v. Peters, 256 F.3d 695, 700 (7th
Cir. 2001) (noting that “courts that have recognized
this problem have been careful to note that the extended
incarceration must also be the product of deliberate
indifference before a constitutional violation, as opposed to
an error of state law, is implicated”). In other words,
if Robles' incarceration was extended beyond the sentence
imposed by law, he must show it was the result of something
more than a simple mistake in order to establish a federal
the confusion may be the result of Robles' use or misuse
of the terms “concurrent” and
“consecutive” sentence. The court notes that
concurrent sentences are sentences that are served at the
same time, while consecutive sentences are served
sequentially, one after another. Based on the allegations of
Robles' complaint, it appears he received his intended
sentence, which would mean that he was not wrongfully
incarcerated. Therefore, if Robles wishes to proceed, he must
file an amended complaint that clearly sets forth the who,
what, when, and where of what he alleges occurred within the
next thirty days. Failure to do so will result in the
dismissal of the action.
plaintiff is advised that the amended complaint must bear the
docket number assigned to this case and must be labeled
“Amended Complaint.” The amended complaint
supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the
appellate court emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading.”
Id. at 1057 (citation omitted). If an amended
complaint is received, it will be screened pursuant to 28
U.S.C. § 1915A.
THEREFORE ORDERED that the motion to proceed without
prepaying the ...