United States District Court, E.D. Wisconsin
JAMES L. KIRK, Plaintiff,
TERRY ROSE, DIANE CASPARI, AILEEN HENRY, HEATHER JOHNSON, MICHAEL BARTH, DOUGLAS BIHLER, PAUL BONNESON, ART HERBST, PETER PERALES, JANE DOE 1, NICOLE HEROLT, and BRAD HETLET, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE
who is incarcerated at Jackson Correctional Institution,
filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. (Docket
#1). He consented to the jurisdiction of Magistrate Judge
Nancy Joseph, who screened his complaint pursuant to 28
U.S.C. § 1915A and dismissed it. (Docket #11).
Additionally, she later denied Plaintiff's motion to
alter the judgment under Federal Rule of Civil Procedure
59(e). (Docket #19).
appealed. (Docket #20). On July 31, 2017, the Court of
Appeals vacated the dismissal of his action in light of
Coleman v. Labor and Industry Review Commission of the
State of Wisconsin, 860 F.3d 461 (7th Cir. 2017), which
held that magistrate judges may not dispose of claims in
cases like this one, where only one side has consented to the
magistrate's jurisdiction. (Docket #29).
August 14, 2017, Judge Joseph reissued her earlier screening
order, with the addition of her opinion addressing
Plaintiff's motion to alter the first judgment, as a
report and recommendation to this Court. (Docket #30). Judge
Joseph recommends that Plaintiff's complaint be dismissed
for failure to state a claim upon which relief may be
granted. Id. at 4-7.
August 31, 2017, Plaintiff filed his objections to the report
and recommendation. (Docket #31). This Court reviews a
party's specific written objections to a report and
recommendation de novo. Fed.R.Civ.P. 72(b)(3).
Plaintiff's objections, while numerous, are not
persuasive. They consist of his conclusory accusations that
Judge Joseph got essentially everything wrong. What is
lacking is citation to pertinent, controlling authority
showing that an error occurred.
primary objection is that Judge Joseph set too high a bar for
his civil conspiracy claim. In that claim, he argues that
numerous state and non-state actors, including
Plaintiff's criminal defense attorneys hired by the state
public defender to represent him, private investigators,
records clerks, the district attorney, and others acted in
concert to deny him the ability to challenge certain matters
in a state criminal prosecution. See (Docket #31-1
at 1-2). But, as Judge Joseph pointed out, Plaintiff's
factual allegations do not remotely establish that these
individuals knew each other or worked together in any way to
deprive Plaintiff of his rights. (Docket #30 at 6-7).
Instead, he offers only vague assertions of a conspiracy.
Id. This does not meet even the liberal standard
applied at screening. See Beaman v. Freesmeyer, 776
F.3d 500, 511 (7th Cir. 2015) (although a plaintiff can use
circumstantial evidence to establish a conspiracy,
“such evidence cannot be speculative”).
particular, in order to support the parties' meeting of
the minds as to the conspiracy, Plaintiff claims that
Defendants had an “express or implied agreement to deny
plaintiff effective, meaningful, and adequate access to the
State trial court.” (Docket #1 at 30). This is a legal
conclusion and provides no factual account of how the
supposed co-conspirators might have agreed to act in concert
to violate Plaintiff's constitutional rights. Evers
v. Reak, 21 F.App'x 447, 450 (7th Cir. 2001). Baldly
claiming, as Plaintiff does, that all parties knew of the
misdeeds of the others, (Docket #31-1 at 6-7), does not raise
his conspiracy claim above the speculative level, Walton
v. Walker, 364 F.App'x 256, 258 (7th Cir. 2010);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Moreover, although he emphasizes throughout each
individual's acts of alleged wrongdoing, as Judge Joseph
observed, those acts, standing alone, do not suggest a
meeting of the minds as to the object of the conspiracy,
which is the crux of such a claim. See (Docket #30
at 7); Adickes v. Kress & Co., 398 U.S. 144,
simply, while Plaintiff is correct that the federal pleading
requirements are low, see (Docket #31-1 at 14-15),
his complaint nevertheless falls short. Consequently, the
Court, having made an independent review of the applicable
law and the record in this case, finds that Plaintiff's
objection as to this portion of Judge Joseph's report and
recommendation must be overruled.
failure of the conspiracy claim becomes a cascading problem
for Plaintiff's other allegations. First, without a
conspiracy between his private criminal defense attorneys,
their investigators, and any state actors, any claims against
those private individuals must be dismissed, as Judge Joseph
found. (Docket #30 at 4); Polk County v. Dodson, 454
U.S. 312, 318 (1981). Second, Plaintiff has not alleged that
any of the state actors' conduct actually interfered with
his pursuit of a nonfrivolous legal claim; he was represented
in his criminal case and was not barred from filing any other
action. See Bridges v. Gilbert, 557 F.3d 541, 553
(7th Cir. 2009); (Docket #30 at 5-6). Third, while Plaintiff
says that his claim arising from his son's inability to
obtain his “rap sheet” from Kenosha County
records clerks should be permitted to proceed, (Docket #31-1
at 2), he does explain why Judge Joseph's view of the
claim-namely, that it did not implicate any of
Plaintiff's federal constitutional rights-is wrong,
(Docket #30 at 4). Simply saying that the magistrate erred,
without meaningful elaboration, is not an objection this
Court will take seriously.
as all claims implicating the jurisdiction of this Court have
been dismissed, the Court will also decline to exercise
supplemental jurisdiction over Plaintiff's state law
intentional infliction of emotional distress claims.
See 28 U.S.C. § 1367(c)(3) (stating that
district courts may decline to exercise supplemental
jurisdiction over state law claims if the district court
“has dismissed all claims over which it has original
jurisdiction”). Thus, the Court adopts Judge
Joseph's report and recommendation in full, and as a
result, Plaintiff's complaint will be
IT IS ORDERED that Plaintiff's
objections to Magistrate Judge Nancy Joseph's Report and
Recommendation (Docket #31) be and the same are hereby
IS FURTHER ORDERED that Magistrate Judge Nancy
Joseph's Report and Recommendation (Docket #30) be and
the same is hereby ADOPTED in full;
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) for failure to
state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a ...