United States District Court, E.D. Wisconsin
MARVIN L. CARTER, Plaintiff,
JUDGE TIMOTHY WITKOWIAK and FREDERICK KLIMETZ, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
a prisoner proceeding pro se, filed a complaint
under 42 U.S.C. § 1983 alleging that his civil rights
were violated. (Docket #1). This matter comes before the
Court on Plaintiff's motion to proceed in forma
pauperis. (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $31.26. 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. Id. §
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.
Id. § 1915A(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); 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); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; 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)); 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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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, 106 (1976)).
complains about the allegedly ineffective assistance of
counsel he received during a state prosecution from his
state-appointed public defender, Defendant Frederick Klimetz
(“Klimetz”). (Docket #1 at 2- 4). Apparently,
Klimetz refused to file a particular motion at
Plaintiff's behest. Id. After several inquiries
from Plaintiff, Klimetz reported that the judge assigned to
his criminal case, Judge Timothy Witkowiak
(“Witkowiak”), had instructed Klimetz not to file
the motion. Id. at 4-5. Plaintiff seeks compensatory
and punitive damages from both Klimetz and Judge Witkowiak,
alleging that their conduct in refusing to entertain his
motion violated his due process rights under the Fifth
Amendment and his right to the effective assistance of
counsel under the Sixth Amendment. Id. at 7-8.
complaint fails to state a claim against either Defendant.
First, his claims against Klimetz are not cognizable in a
Section 1983 case. Even though Klimetz may have been employed
by the state, a court-appointed defense attorney does not
“act[ ] under color of state law” when
representing an indigent defendant in a state criminal
proceeding. Polk County v. Dodson, 454 U.S.
312, 325 (1981); Swift v. Swift, 556 F. App'x
509, 510-11 (7th Cir. 2014). Second, Judge Witkowiak enjoys
absolute immunity for actions taken in his judicial capacity.
Loubser v. Thacker, 440 F.3d 439, 442 (7th Cir.
2006). Even if the judge was mistaken to direct Klimetz not
to file a motion on Plaintiff's behalf, that action
undoubtedly falls within the scope of his judicial duties.
Consequently, because Plaintiff does not state a claim
against either Defendant, this action must be
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
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 brought an action that was dismissed for
failure to state a claim under 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1);
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a “strike” under 28
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the balance of the filing fee by collecting monthly payments
from the plaintiff's prison trust account in an amount
equal to 20% of the preceding month's income credited to
the prisoner's trust account and forwarding payments to
the Clerk of Court each time the amount in the account
exceeds $10.00 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If the prisoner
is transferred to another institution, ...