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Kind v. Smith

United States District Court, E.D. Wisconsin

February 2, 2018

HAROLD C. KIND, JR., Plaintiff,
v.
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 CASE

          HON. PAMELA PEPPER United States District Judge

         This 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.

         I. SCREENING THE AMENDED COMPLAINT

         The Prison Litigation Reform Act (“PLRA”) requires courts to screen any complaint brought by an inmate[1] 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).

         To 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 555).

         The 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.

         Federal 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)).

         a. Factual Allegations

         The 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.

         The 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 somewhere else.

         The 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.)

         The 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.

         The 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.

         b. Le ...


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