United States District Court, E.D. Wisconsin
ROBERT I. LOPEZ, et al, Plaintiffs,
FRANK LISKA JR., et al, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND
WILLIAM C. GRIESBACH, CHIEF JUDGE.
Robert Lopez, proceeding pro se, filed a civil
rights complaint pursuant 42 U.S.C. § 1983 and has
requested to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Pursuant to the Prison Litigation
Reform Act (“PLRA”), the plaintiff is required to
pay the statutory filing fee of $350.00 for this action.
See 28 U.S.C. § 1915(b)(1).
September 5, 2017, Magistrate Judge Jones ordered Lopez to
forward to the Clerk of Court an initial partial filing fee
of $13.37. ECF No. 17. The court ordered that this initial
partial filing fee be paid by September 26, 2017.
Id. Lopez failed to pay the filing fee. On October
11, 2017, Magistrate Judge Jones ordered Lopez to either pay
the initial partial filing fee or show cause why his action
should not be dismissed for failure to pay. ECF No. 19.
Additionally, the court ordered Lopez to respond by November
1, 2017, and warned that a failure to respond by that date
would result in the dismissal of Lopez's complaint.
Id. Lopez did not respond.
upon the foregoing, on November 16, 2017, Magistrate Judge
Jones recommend that the district court dismiss Lopez's
complaint for failure to prosecute, failure to
comply with court orders, and lack of diligence pursuant to
Federal Rule of Civil Procedure 41(b) and Civil Local Rule
41(c). The order informed Lopez that he had fourteen days to
file an objection to the recommendation. On November 28,
2017, Lopez filed an unsigned objection to Magistrate Judge
Jones' report and recommendation. ECF No. 21. However,
Lopez's filing does not pertain to his failure to pay his
initial partial filing fee. Id. Rather, he files
over twenty pages of incoherent legal citations pertaining to
his amended complaint. Id. Lopez still has not paid
the partial filing fee and has not offered any explanation as
to why he has failed to pay the fee. Accordingly, the case
will be disimissed.
Lopez had paid his initial partial filing fee, the result
would be the same. The court is required to dismiss any
action that is frivolous or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C.
§ 1915A (requiring the court to screen a complaint in a
civil action in which a prisoner seeks redress from a
government entity or officer or employee of a governmental
entity). From even a cursory review of Lopez's complaint,
is clear that it fails to state a claim.
complaint is largely incoherent and consists primarily of
random names, legal phrases, and legal citations. ECF No. 10.
However, reading it liberally, it appears that Lopez is
attempting to challenge his state court conviction.
Specifically he appears to be alleging that the police in his
state criminal conviction committed misconduct by coaching
eye witnesses to falsely identify a suspect.
cannot challenge his underlying conviction through an action
for damages under 42 U.S.C. § 1983. “Challenges to
the validity of any confinement . . . are the province of
habeas corpus.” Muhammad v. Close, 540 U.S.
749, 750 (2004) (per curiam) (citing Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973)). Stated
differently, prisoners may brings claims for unconstitutional
things that happen to them via § 1983; however, claims
challenging the fact that they are confined, i.e. challenging
their underlying conviction, must be brought via a petition
for habeas corpus. Furthermore, the United State Supreme
Court has explained that if a prisoner's success in their
§ 1983 claim for money damages would implicitly question
the validity of conviction, the prisoner “must first
achieve favorable termination of his available state, or
federal habeas, opportunities to challenge the underlying
conviction or sentence.” Id. (citing Heck
v. Humphrey, 512 U.S. 477 (1994)). Not only would
Lopez's § 1983 claim implicitly question the
validity of his conviction that appears to be the entire
point of the lawsuit-to challenge his underlying conviction.
Therefore, Lopez's claims must be dismissed. Furthermore,
the court will not sua sponte convert Lopez's
case from a § 1983 claim to a habeas action because it
appears that Lopez already has an ongoing petition for habeas
corpus under 28 U.S.C. § 2254. Lopez v.
Dittmann, No. 2:17-cv-00528-DEJ (E.D. Wis. Apr. 13,
2017); see also Copus v. City of Edgerton, 96 F.3d
1038, 1039 (7th Cir. 1996) (“The district court was not
authorized to convert a § 1983 action into a § 2254
action . . . . It may be that as a § 1983 suit it is
defective, but if so the proper step would have been to
dismiss the complaint . . . rather than to
“convert” the case to an impossible or
inappropriate alternative suit.”).
IS THEREFORE ORDERED that the court
ADOPTS Magistrate Judge Jones' Report
and Recommendation (ECF No. 20) to dismiss Lopez's
complaint for failure to prosecute, failure to comply with
court orders, and lack of diligence.
IS FURTHER ORDERED that Lopez's complaint is
DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1)
as frivolous and for failure to comply with court orders
pursuant to Federal Rule of Civil Procedure 41(b) and Civil
Local Rule 41(c). See Moore v. Pemberton, 110 F.3d
22, 24 (7th Cir. 1997) (explaining that a complaint barred by
Heck is considered legally frivolous).
IS ALSO ORDERED that plaintiff's outstanding
motions, motion for leave to appeal in forma pauperis (ECF
No. 2) and plaintiff's motion to appoint counsel (ECF No.
12) are DENIED AS MOOT.
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the $350 balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust fund account
in an amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payment to the Clerk of Court each time the amount in the
account exceeds $10 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
plaintiff is transferred to another institution, the
transferring institution shall forward a copy of this order
along with plaintiff's remaining balance to the receiving
institution. See Newlin v. Helman, 123 F.3d 429, 434
(7th Cir. 1997) (explaining that process of collecting a
filing fee prescribed in 28 U.S.C. § 1915(b) may be
applied when a plaintiff seeks leave to proceed in forma
pauperis, regardless whether that leave is ultimately
IS FURTHER ORDERED that the Clerk of Court enter
IS ALSO ORDERED that copies of this order be sent to
the officer in charge of the agency where the inmate is
FURTHER CERTIFY that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. §
1915(a)(3) unless the plaintiff ...