United States District Court, E.D. Wisconsin
JASON C. TANK, Plaintiff,
DIVISION OF COMMUNITY CORRECTIONS, Defendant.
DECISION AND ORDER
ADELMAN, District Judge
Jason Tank filed an action under 42 U.S.C. § 1983
against the State of Wisconsin's Division of Community
Corrections (which is a division of the state's
Department of Corrections). In this order, I address
plaintiff's motion for leave to proceed without
prepayment of the filing fee and screen the complaint.
Prison Litigation Reform Act (“PLRA”) applies to
this action because plaintiff was incarcerated when he filed
this complaint. 28 U.S.C. §1915. The law allows inmates
to proceed in federal court without pre-paying the $350
filing fee. Id. The inmate must comply with certain
requirements, one of which is to pay an initial partial
filing fee. Id. On January 16, 2018, I assessed an
initial partial filing fee of $8.34. Plaintiff paid that
amount on January 19, 2018. Therefore, I will grant
plaintiff's motion to proceed without prepayment of the
PLRA requires me to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
I can dismiss an action or portion thereof 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).
events giving rise to plaintiff's claim occurred while he
was on extended supervision. He alleges that, in October
2014, an intern who worked at the Division of Community
Corrections stole some files from the division's offices
and used them to contact plaintiff. Plaintiff then had a
sexual relationship with the intern over the course of two
months. Plaintiff alleges that, in late November 2014, he
tried to end the relationship, but the intern
“blackmailed” him into continuing the
alleges that he finally ended the relationship in December
2014. However, after he did so, the intern sent text messages
to his cell phone, which at the time was in the possession of
plaintiff's girlfriend. The intern told the girlfriend
that she was having sex with plaintiff. The girlfriend told
the intern that she intended to report the intern's
behavior to her supervisor at the Division of Community
Corrections. The intern responded by threatening to have
plaintiff revoked from extended supervision. Plaintiff
alleges that, around this time, the intern would drive by
plaintiff's house and harass both him and his girlfriend.
She also broke a window on plaintiff's truck and warned
plaintiff that she would have him revoked if he reported her
actions. Plaintiff alleges that the intern's acts of
harassment continued until February 2015.
alleges that, because of the intern's actions, and
because her office was across the hall from his probation
agent's, he failed to report to the division as required
by the conditions of his extended supervision from December
2014 through May 2015. Plaintiff's failure to report
eventually resulted in the revocation of his extended
supervision. He is currently in custody at the Outagamie
alleges that, in May 2015, a supervisor at the Division of
Community Corrections named Roger Neveau was informed of the
intern's actions. Neveau told plaintiff that the
allegations concerning the intern were being investigated.
Neveau also told plaintiff that he was a victim under the
Prison Rape Elimination Act. A week later, Neveau told
plaintiff that “the only thing that happened” to
the intern was that the division reported her behavior to Fox
Valley Tech (which I presume was the school that sponsored
alleges that Neveau handled the situation negligently.
However, he has not named Neveau (or any other person) as a
defendant. The sole named defendant is the Division of
Community Corrections. Plaintiff seeks to be compensated for
the 12 months he has spent in jail following the revocation
of his extended supervision due to his failure to report. He
also asks to be released from custody. He also seeks
compensation for other harm caused by the intern's
actions, such as the damage to his truck.
plaintiff has not stated a federal claim for relief against
the Division of Community Corrections. The division is an
agency of the State of Wisconsin, and states and state
agencies are not “persons” who are suable under
42 U.S.C. § 1983. See, e.g., Owens v. Godinez,
860 F.3d 434, 437-38 (7th Cir. 2017). As no statute other
than § 1983 would provide plaintiff with a federal cause
of action for damages for the events alleged in his
complaint, this entire suit must be dismissed.
however, that even if plaintiff had named a defendant who is
a “person” under § 1983, there would be
other problems with his complaint. First, to the extent
plaintiff seeks release from custody, his sole federal remedy
would be to file a petition for a writ of habeas corpus and
name the administrator of the Outagamie County Jail as the
respondent. Release from custody is not a remedy that is
available under 42 U.S.C. § 1983. See Preiser v.
Rodriguez, 411 U.S. 475 (1973). Second, to the extent
plaintiff seeks damages for the time he has spent in custody
since his revocation, he cannot bring an action under §
1983 unless he first has had the revocation order invalidated
either in state proceedings or through a federal petition for
a writ of habeas corpus. See Heck v. Humphrey, 512
U.S. 477 (1994). As plaintiff is still in custody, it is
obvious that the order has not been invalidated, and that
therefore plaintiff cannot bring an action for damages for
the time he spent in custody since his revocation.
it appears that plaintiff thinks the Division of Community
Corrections was negligent in its supervision of the intern.
The proper defendant to any such negligence claim would
likely by Neveau, who appears to have supervised the intern.
Still, the claim would not be viable under § 1983,
because under that statute a supervisor cannot be liable for
simple negligence. See City of Canton v. Harris, 489
U.S. 378, 391-92 (1989); Hirsch v. Burke, 40 F.3d
900, 905 (7th Cir. 1994). Moreover, it is hard to identify
any federal law that is implicated by the facts alleged in
the complaint, and a claim under § 1983 can only be used
to redress violations of federal law. See, e.g., Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Plaintiff
mentions the Prison Rape Elimination Act, which is a ...