United States District Court, E.D. Wisconsin
HAROLD C. KIND, JR., Plaintiff,
JUDY SMITH, COMMISSIONER DRANKIEWICZ, SOCIAL WORKER MESSING, RECORDS DEPARTMENT TOMLIN, and, RECORDS DEPARTMENT JOHNSON, Defendants.
DECISION AND SCREENING PLAINTIFF'S AMENDED
COMPLAINT (DKT. NO. 12), DENYING SECOND REQUEST TO PROCEED
WITHOUT PAYING FILING FEE (DKT. NO. 13) AND DISMISSING
PAMELA PEPPER United States District Judge
order screens the plaintiff's amended complaint, dkt. no.
12, denies his second motion to proceed without paying the
filing fee, dkt. no. 13, and dismisses the case.
SCREENING THE AMENDED COMPLAINT
Prison Litigation Reform Act (“PLRA”) requires
courts to screen any complaint brought by an
inmate seeking relief against a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. §1915A(a). The court may dismiss a case, or part
of it, if the claims alleged are “frivolous or
malicious, ” fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §1915(e)(2)(B).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Labels and conclusions” or a
“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
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis in Twombly to
determine whether a complaint states a claim. Id. at
679. First, the court determines whether the plaintiff's
legal conclusions are supported by factual allegations.
Id. Legal conclusions not support by facts
“are not entitled to the assumption of truth.”
Id. Second, the court determines whether the
well-pleaded factual allegations “plausibly give rise
to an entitlement to relief.” Id. The court
gives 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)).
plaintiff does not describe the nature of the state court
charges that led to his incarceration. A review of the
Wisconsin Circuit Court Access Program shows one felony
conviction for Harold C. Kind, Jr.- State v. Harold C.
Kind, Jr., Case No. 2004CF000361 (Fond du Lac County
Circuit Court) (accessible at http://wcca.wicourts.gov). The
docket for that case shows that in September 2004, the
plaintiff was charged in Fond du Lac County Circuit Court
with sexual assault of a child. There is no indication in the
docket, or in the amended complaint, of when the plaintiff
committed the crime for which he was convicted. He was
sentenced on April 6, 2005. Id. at Dkt. No. 65. The
docket does not indicate the length of the sentence the court
imposed, and the complaint does not provide that information.
caption of the complaint names five defendants: warden Judy
Smith, parole commissioner Drankiewicz, social worker
Messing, and “record department Tomlin &
Johnson.” Dkt. No. 1 at 1. Judy Smith is the warden of
the Oshkosh Correctional Institution; the court does not know
whether Messing, Tomlin and Johnson worked at Oshkosh
Correctional, or at the Department of Corrections, or
plaintiff begins by alleging that the defendants held him two
and a half years past his “M.R. date.” Dkt. No.
12 at 2. He goes on to assert that defendant Tomlin (to whom
he refers in the caption as “Record Department Tomlin,
” dkt. no. 12 at 1, and whom he calls “Records
Tomlin” in the body of the complaint, dkt. no. 12 at 2)
petitioned the “court system” “to place a
‘PMR'” on the plaintiff. Dkt. No. 12 at 2.
(The docket for Case No. 2004CF000361 shows that on August
24, 2017, there was a “hearing re mandatory release
calculation.” http://wcca.wicourts.gov.) He alleges
that his case “came to a[n] end on September 1st 2017,
” and that “[t]he Department of Corrections were
[sic] ordered to release [him] ¶ 72 hours.” Dkt.
No. 12 at 2. (The clerk's office for this court learned
from the Wisconsin probation department that as of September
19, 2017, the plaintiff had a new address on Thomas Street in
Fond du Lac, Wisconsin.)
plaintiff asserts that the defendants “tortured”
him, by forcing him to participate in programs “not
ordered by the sentencing Judge back in the end of the
90's and beginning of 2000.” Id. One of
the programs-“SOTP, ” a sex offender treatment
program-led to four people looking at him “differently,
” calling him “serious names” and
“even threaten[ing] [him].” Id. at 3.
The plaintiff alleges that “Records” and
defendant Messing (a social worker) “lied” to the
plaintiff “over and over again, ” stating that if
he participated in the program, he would be released.
Id. He asserts that these lies caused him hardship,
pain, suffering and emotional distress. Id.
plaintiff also alleges that “Records” and his
social worker “forced” the parole commissioner
(presumably defendant Drankeiwicz) to deny the plaintiff
parole, “because the Records department took it upon
themselves to force Fond du Lac County to place a PMR on me
which was a violation of my Constitution rights.”
Id. The plaintiff alleges that he lost two and a
half years of his life that he never can get back.
Id. He seeks monetary damages for the defendants
having tortured him by holding him two and a half years after
his “original M.R. date.” Id. at 4. He
also asks the court to fire each defendant. Id.