United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Brian DeMarco Mitchell, who is incarcerated at the Outagamie
County Jail, proceeds in this matter pro se. He
filed a complaint alleging that Defendants Outagamie County
Circuit Court Judge Mark J. McGinnis (“Judge
McGinnis”) and attorney Daniel M. Muza
(“Muza”) violated his constitutional rights.
(Docket #1). Plaintiff subsequently filed an amended
complaint, providing additional factual details to support
his claims. (Docket #7). The amended complaint supersedes the
first complaint and is the governing pleading in this case.
See Massey v. Helman, 196 F.3d 727, 735 (7th Cir.
1999). After filing his amended complaint, Plaintiff filed a
supplement to his amended complaint, purporting to add
Outagamie County as a defendant. (Docket #8).
matter comes before the court on Plaintiff's petition to
proceed without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $15.80. See 28
U.S.C. § 1915(b)(1). His motion to proceed in forma
pauperis will, therefore, be granted.
the Court is required to screen complaints brought by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. 28 U.S.C.
§ 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) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
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 and 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)); see 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. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted); Christopher, 384
F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying 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, second, “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) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The Court is obliged
to give the 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,
alleges that on May 9, 2017, the Appleton public
defender's office appointed Muza to represent Plaintiff
in a criminal case pending in Outagamie County, Case Number
17-CF-59. (Docket #7 at 2). On May 18, 2017, Plaintiff asked
Muza to withdraw as his attorney because he believed Muza had
a “conflict.” Id. The next day, Muza
informed Plaintiff that he would withdraw from the case, and
Muza faxed to Judge McGinnis a motion to withdraw and
proposed order. Id. Three days later, on May, 22,
2017, Judge McGinnis granted the motion. Id. at 3.
on May 25, 2017, apparently unaware that the motion to
withdraw had been granted, Muza faxed a letter to Judge
McGinnis requesting a hearing on the motion to withdraw.
Id. The letter states “[a]s you know, I
presently represent Brian D. Mitchell in the above-captioned
matter.” Id. at 3, see also (Docket
#7-1 at 4). Plaintiff contends that Muza “acted
negligently when he failed to inquire with the court or by
public record in regard to his representation status . . .
before requesting a motion hearing[.]” Id. at
hearing was scheduled for, and took place on, June 6, 2017 in
Outagamie County Circuit Court. Id. at 4. Plaintiff
contends he was damaged as the result of this hearing, which
should not have taken place. Id. Plaintiff alleges
that at the hearing, Judge McGinnis and Muza realized that
Muza's motion for withdrawal had already been granted but
continued with the hearing anyway. Id. Plaintiff
states that, as a result, he was not represented by
“effective or legal counsel.” Id.
According to Plaintiff, Judge McGinnis went on to find
Plaintiff in contempt of court and imposed on him a term of
six months' imprisonment and a $5, 000 fine “with
purge conditions.” Id. at 4-5. Plaintiff
contends that the sanction was “unlawful” and
“excessive, ” and that he was sentenced without
being afforded legal counsel. Id. at 5.
served forty-two days in the Outagamie County Jail for
contempt before Judge McGinnis ordered his release due to
Plaintiff having satisfied his purge conditions and
“failure to follow statutory procedure brought to his
knowledge by [Plaintiff] and newly appointed counsel Gary
Schmidt on July 17, 2017[.]” Id. Plaintiff
states that the sentence imposed on him should not have
exceeded thirty days' imprisonment and a $500.00 fine.
Id. Plaintiff contends that because he served
“unlawful days in jail on the contempt charge, ”
his Eighth Amendment rights were violated. He states that he
suffered emotional and mental damage as a result.
Id. at 5-6.
Plaintiff alleges that while he was incarcerated at the
Outagamie County Jail, he had a mental and emotional
breakdown that caused him to enter into a physical
altercation with his cellmate. Id. at 6. That
altercation led to criminal charges being filed against him.
Id. Plaintiff contends that but for the
“unlawful” conduct of Judge McGinnis and Muza,
Plaintiff would not have been incarcerated at the time of the
altercation and, therefore, the altercation would not have
cannot state a viable claim against any of the named
Defendants. First, it has long been established that judges,
being sued solely for judicial acts, are protected by
absolute judicial immunity. Mireles v. Waco, 502
U.S. 9, 11-12 (1991); Forrester v. White, 484 U.S.
219, 225-29 (1988); Richman v. Sheahan, 270 F.3d
430, 434 (7th Cir. 2001). Without doubt, the actions of Judge
McGinnis that form the basis of Plaintiff's claim against
him-“hosting a criminal proceeding in which an indigent
defendant was not appointed counsel” and
“imposing an excessive sentence, ” (Docket #7 at
7)-are judicial acts. Judge McGinnis is thus cloaked with
judicial immunity for each of the actions that Plaintiff
invokes as the grounds for his constitutional ...