United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff David Darnell Nelson is a prisoner in the custody
of the Wisconsin Department of Corrections, currently housed
at the Waupun Correctional Institution. Nelson has filed a
complaint about his state-court conviction for second-degree
sexual assault of a child. He asks the court to award him $1
million and to throw out his conviction. The court determined
that Nelson qualifies for in forma pauperis status,
and Nelson made an initial partial payment of the filing fee.
next step is for the court to screen the complaint and
dismiss any portion that is legally frivolous, malicious,
fails to state a claim upon which relief can be granted, or
asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. §§ 1915, 1915A.
When screening a pro se litigant's complaint, the court
construes the allegations liberally and in the
plaintiff's favor. McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010). Because Nelson is challenging an
underlying conviction-again-his claims are not, at this time,
actionable under 42 U.S.C. § 1983, and I will dismiss
the following facts from Nelson's complaint. Dkt. 1.
allegations are about his state-court conviction for
second-degree sexual assault of a child: defendant Michael D.
Guolee was the judge, defendant Paul L. Tiffin was the
district attorney, and defendant Michael J. Backes was
Nelson's attorney. Nelson describes the events that led
to his arrest and conviction. On March 13, 2012, he was
walking with a girl; she told him she was 18 years old.
Police officers pulled up to Nelson and the girl and
explained that the girl “fit the description of a
runaway.” Id. at 2. The officers put the girl
in their car and told Nelson to go home. He did. Then the
officers went to Nelson's house and told him that a
detective wanted to speak with him. Nelson said that he
didn't want to speak with anyone, but the officers
threatened Nelson, forced him into their car, and took him to
the police station. There, a detective explained that the
girl had said that Nelson had raped her. Nelson denied it.
The officers took Nelson to the hospital “for
DNA.” Id. at 3.
forward a bit. Nelson met with his attorney, Backes, and
Backes told Nelson to “waive [his] hearings.”
Id. Nelson did not understand; he was mentally ill.
On May 15, 2012, Nelson appeared in court. The district
attorney, Tiffin, read a letter from the victim. The letter
explained that Nelson did not rape her and that he “was
a good guy.” Id. After Tiffin read the letter,
the judge, Guolee, got off the bench, gave Nelson “a
mad man” look, and told him to tell him what happened
or he would put Nelson in prison for 60 years. Id.
Nelson looked to Backes for help, but Backes did not say
anything. Nelson relented and said that he did not want to go
to prison. Guolee had Nelson “sign some
paper”-probably a plea agreement-but Nelson did not
know what was going on. Guolee sentenced Nelson to five
years-“3 in and 2 out”-for second-degree sexual
assault of a child. Id.
suffers from antisocial disorder, panic disorder, depression,
obsessive-compulsive disorder, and schizophrenia. Nelson
contends that “they”-presumably defendants-were
deliberately indifferent to Nelson's mental health needs
during the May 2012 hearing: he did not understand his rights
or what was going on. Defendants charged Nelson with a crime
that he did not commit and relied exclusively on statements
he uttered after he was threatened. Nelson asks me to throw
his case and his statements out, and he wants $1 million for
his pain and suffering.
allegations are familiar. This is the second time that he has
attempted to challenge his second-degree sexual assault of a
child conviction via a § 1983 suit for money damages.
See Nelson v. State of Wisconsin, No. 16-cv-554
(W.D. Wis. filed Aug. 8, 2016). As I explained in that case,
Nelson is not entitled to the relief he seeks.
to the validity of any confinement or to particulars
affecting its duration are the province of habeas corpus;
requests for relief turning on circumstances of confinement
may be presented in a § 1983 action.” Muhammad
v. Close, 540 U.S. 749, 750 (2004) (per curiam)
(citation omitted). Put differently, plaintiffs may bring
claims for unconstitutional things that happen to them while
incarcerated under 42 U.S.C. § 1983, but plaintiffs
challenge the fact or duration of their confinement under 28
U.S.C. § 2254. Nelson's complaint-like his complaint
in No. 16-cv-554-is somewhat of a hybrid: he is attempting to
challenge his underlying conviction, but he asks for money
damages for constitutional violations. But “where
success in a prisoner's § 1983 damages action would
implicitly question the validity of conviction or duration of
sentence, the litigant must first achieve favorable
termination of his available state, or federal habeas,
opportunities to challenge the underlying conviction or
sentence.” Id. at 751 (citing Heck v.
Humphrey, 512 U.S. 477 (1994)). Nelson challenges the
constitutionality of his plea and, as a result, his
conviction. Nelson cannot bring the claims he is attempting
to bring-even though he is alleging violations of his
constitutional rights- because he is essentially challenging
his underlying state-court conviction. A judgment in
Nelson's favor here would necessarily undermine
Nelson's conviction and imply that it is invalid. For
this reason, I must dismiss Nelson's case.
will not sua sponte convert Nelson's case from a
§ 1983 action to a habeas action, for several reasons.
See Copus v. City of Edgerton, 96 F.3d 1038, 1039
(7th Cir. 1996) (per curiam) (“The district court was
not authorized to convert a § 1983 action into a §
2254 action, a step that carries disadvantages (exhaustion
and the certificate of appealability only two among many) for
litigants. . . . It may be that as a § 1983 suit it is
defective, but if so the proper step would have been to
dismiss the complaint under Fed.R.Civ.P. 12(b)(6) or grant
summary judgment, rather than to ‘convert' the case
to an impossible or inappropriate alternative suit.”).
As mentioned, Nelson seeks money damages, which are not
available under § 2254, making conversion all the more
inappropriate. See Preiser v. Rodriguez, 411 U.S.
475, 494 (1973). And when Nelson filed this suit, he also
filed a second: a habeas petition about these exact facts.
See Nelson v. State of Wisconsin, No. 17-cv-311
(W.D. Wis. filed Apr. 26, 2017). That case is under
advisement, and I anticipate that I will screen it soon.
dismiss Nelson's complaint and consider his claims as
raised in his petition for a writ of habeas ...