United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
Ronald Schroeder (“Schroeder”), a prisoner
proceeding pro se, filed a complaint under 42 U.S.C.
§ 1983, alleging that his constitutional rights are
being violated. (Docket #1) He has also filed a motion for
the appointment of counsel and a motion for leave to proceed
in forma pauperis. (Docket #3, #5). This case was
initially assigned to Magistrate Judge William E. Duffin.
However, because not all parties have had the opportunity to
consent to the jurisdiction of the magistrate, the case was
randomly reassigned to this Court for screening the complaint
and a decision on the pending motions.
Prison Litigation Reform Act (“PLRA”) gives
courts discretion to allow prisoners to proceed with their
lawsuits without prepaying the $350 filing fee, as long as
they comply with certain requirements. 28 U.S.C. § 1915.
One of those requirements is that they pay an initial partial
filing fee (“IPFF”). On December 28, 2017,
Magistrate Duffin ordered Schroeder to pay an IPFF of
$208.83. Schroeder paid that fee on January 3, 2018.
Accordingly, the Court will grant his motion to proceed
in forma pauperis. Schroeder must pay the remainder
of the filing fee over time in the manner explained at the
end of this Order.
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).
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. Cnty. 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)).
is currently incarcerated at the Waukesha County Jail facing
revocation of his extended supervision. He is suing Kimberly
Malone (“Malone”), his probation and parole
agent; Jason Popp (“Popp”), a probation and
parole supervisor; Sally Tess (“Tess”), a
regional chief, and Brian Hayes (“Hayes”), the
Administrator at the Department of Administration, Division
of Hearings and Appeals.
explains that, on October 3, 2016, the Wisconsin Department
of Corrections (“DOC”) implemented the
Evidence-Based Response to Violations (“EBRV”)
guide, which seeks to ensure consistent and appropriate
responses to violations by those on extended supervision. On
September 19, 2017, Malone served him with revocation papers,
which included an EBRV violation summary. Schroeder asserts
that the summary correctly characterized him as low risk to
reoffend, but incorrectly characterized his primary violation
as high. He asserts that, pursuant to the EBRV guide's
matrix (which is available on the DOC's website), the
characterization of his primary violation should have been
low. Schroeder states that he immediately notified Malone of
this inaccuracy, but she allegedly replied, “That's
what the computer came up with.” (Docket #1 at 3).
alleges that he noticed similar inaccuracies in other
people's summaries. Schroeder alerted Popp and Tess about
the inaccuracies, but they sent separate letters denying
inaccuracies existed. On October 3, 2017, he emailed Malone,
Popp, and Tess to apprise them of the inaccuracies; he
included a copy of the guide's matrix and his summary.
Tess responded the next day, “Thank you for bringing
this to our attention. We will look into it.”
Id. at 4. Schroeder states that he has received no
forwarded the emails to state representative Evan Goyke and
his aide, Ryan Knocke. According to Schroeder, they agreed
there were inaccuracies and forwarded the information to
their DOC liaison and requested an explanation and a
correction. Again, Schroeder reports that he has received no
further alleges that his attorney confirmed that the summary
is inaccurate, but he told Schroeder that the parole and
probation staff refuse to address it. Schroeder stated that,
as a result of not being able to help him, his attorney
withdrew from his revocation case.
asks the Court to enjoin Defendants from convening his final
revocation hearing. He argues that Defendants are relying on
information that is inconsistent with the guide in order to
recommend revocation of his extended supervision. Schroeder
explains that he knows of another person who was prevented
from arguing at his revocation hearing that the summary
information relied on by the parole and probation agent was
inaccurate. As such, he fears that he, too, will be prevented
from raising this issue at the hearing.
Court of Appeals for the Seventh Circuit has explained that a
plaintiff may state a due process claim if he alleges that
the process he was due (here, a final revocation hearing) was
rendered unfair by a defendant's deliberate wrongdoing
(here, the intentional inputting of false information into
the matrix and/or the refusal to correct inaccuracies after
being informed of them). See Armstrong v. Daily, 786
F.3d 529, 545 (7th Cir. 2015). The Court, however, cannot
allow Schroeder to proceed with such a claim because it is
not ripe for adjudication. “A claim is not ripe for
adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at
all.” Texas v. United States, 523 U.S. 296,
300 (1998) (citations and internal quotations omitted). Here,
Schroeder alleges that his ...