United States District Court, E.D. Wisconsin
ELLIOTT G. KYLES, Plaintiff,
BEAU LIEGEOIS, and TIMOTHY A. HINKFUSS, Defendants.
AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING AS MOOT MOTION FOR EXTENSION OF TIME (DKT. NO. 7),
DENYING AS MOOT MOTION TO ADD PARTY (DKT. NO. 8), SCREENING
THE COMPLAINT (DKT. NO. 1), AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. Under that law, the court
must screen a plaintiff's complaint to determine whether
the plaintiff states claims with which he may proceed. This
decision will resolve the plaintiff's motion for leave to
proceed without prepayment of the filing fee and screen the
Motion for Leave to Proceed without Prepayment of the
PLRA allows a court to give an incarcerated plaintiff the
ability to proceed with his lawsuit without prepaying the
case filing fee, as long as he meets certain conditions. One
of those conditions is that the plaintiff must pay an initial
partial filing fee. 28 U.S.C. §1915(b).
August 10, 2017, the court ordered the plaintiff to pay an
initial partial filing fee of $2.77 by August 31, 2017. Dkt.
No. 4. On August 21, 2017, the plaintiff filed a motion
asking for additional time to pay the fee. Dkt. No. 7. The
plaintiff paid the fee on August 28, 2017, three days before
the original deadline, so no extension of the deadline was
necessary. The court will deny as moot the plaintiff's
motion for an extension of time, and will grant his motion to
proceed without prepayment of the filing fee. The court will
order the plaintiff to pay the remainder of the filing fee
over time in the manner explained at the end of this
Screening the Plaintiff's Complaint
requires the court 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 if the plaintiff raises
claims that are legally frivolous, 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
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.
The Plaintiff's Allegations
complaint indicates that the plaintiff objects to the State
of Wisconsin's jurisdiction to bring a criminal case
against him. Dkt. No. 1 at 3. He argues that, in order for a
crime to exist, there must be an injured party; he argues
that the State of Wisconsin cannot be that injured party
because it is a sub-corporation of the United States.
Id. at 3-4. He argues that defendant Beau G.
Liegeois, the Assistant Brown County District Attorney who is
prosecuting the case on behalf of the District Attorney's
Office, committed fraud by charging him, and that defendant
Timothy Hinkfuss, the Brown County Circuit Court judge who is
presiding over the case, committed fraud by presiding over
the criminal case. Id. at 4-6; see also,
Wisconsin Court System Circuit Court Access,
www.wcca.wicourts.gov, Brown County Case No. 2015CF1801.
The Court's Analysis
online docket system for the Wisconsin Circuit Courts
indicates that the plaintiff has been charged in Brown County
Circuit Court with one count of possession with intent to
distribute heroin, one count of possession with intent to
distribute cocaine, one count of possession of narcotics with
intent to deliver, and one count of being a felon in
possession of a firearm. Wisconsin Court System Circuit Court
Access, www.wcca.wicourts.gov, Brown County Case No.
2015CF1801. His trial is scheduled for November 8, 2017 at
plaintiff's assertion that the State of Wisconsin is
without authority to bring criminal charges against
individuals is legally frivolous. Wisconsin Statutes
§939.03(1) states that, “A person is subject to
prosecution and punishment under the law of this state if . .
. [t]he person commits a crime, any of the constituent
elements of which takes place in the state.” Wis.Stat.
§968.02(1) empowers district attorneys to file a
complaint charging a person with an offense, and §967.05
makes clear that any powers or duties imposed upon district
attorneys may be performed by their deputies or assistants.
After a complaint is issued, §968.02(2) requires the
district attorney to file the complaint with a judge, who
either will issue a warrant or ...