United States District Court, E.D. Wisconsin
DAVID W. HARDAWAY, Plaintiff,
EMILY J. KERR, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
David W. Hardaway, who is incarcerated in the Dodge County
Detention Facility, proceeds in this matter pro se.
He filed a complaint alleging that Defendant violated his
rights. (Docket #1). This matter comes before the court on
Plaintiff's petition to proceed without prepayment of the
filing fee (in forma pauperis). (Docket #2). Because
of Plaintiff's indigence, the Court waived payment of an
initial partial filing fee. See 28 U.S.C. §
court must 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. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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)). However, a complaint that offers mere
“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). 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).
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. Section 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,
allegations are based on a November 28, 2017 parole
revocation hearing in Wisconsin state court. (Docket #1 at
2). He states that he appeared at the hearing via video
conference. Id. Defendant, his parole officer, also
participated in the hearing via real-time video and audio
transmission from her office. Id. Plaintiff states
that after the hearing concluded, the video conference
remained live. Id. According to Plaintiff, Defendant
then began to “behave in a very unprofessional manner
by violating civil and ethical principles.”
Id. Defendant apparently spoke poorly of Plaintiff
to the various witnesses who had attended the hearing.
Id. at 2-3. She also shared many intimate details
about Plaintiff's personal, medical, and criminal
history. Id. Throughout, Defendant indicated her
personal dislike of Plaintiff. Id. Plaintiff further
alleges that Defendant admitted to seeking a more severe form
of revocation to ensure that Plaintiff would serve a longer
revocation sentence. Id. at 3.
states that Defendant's conduct “violated public
and constitutional safeguards” by sharing his personal
information. Id. at 4. He claims that Defendant was
motivated to prejudice the witnesses against Plaintiff so
that her revocation case would be strengthened. Id.
Plaintiff views Defendant's actions as “negligence,
slander, hatred, maliciousness, and very poor judgment and
lack of discretion.” Id. He believes that
Defendant “is guilty of acts and omissions unbecoming .
. . of one in [her] office and position, which renders
suspension, demotion, and discharge” appropriate for
Defendant. Id. Plaintiff wants a finding that his
“rights on a constitutional, state, and administrative
level [were] violated, ” that Defendant be removed as
his parole officer, that “any questionable testimony
provided against me in the present revocation by the
witnesses . . . be closely looked at and dismissed or
expunged from all records, ” and finally that he be
awarded $4, 000 in damages. Id. at 5.
allegations fail to state a claim upon which this Court may
grant relief. The primary thrust of Plaintiff's
allegations are that Defendant acted unprofessionally. This
conduct, while not laudable, does not by itself implicate any
constitutional or other federal rights. Because this is a
federal court of limited jurisdiction, 28 U.S.C. §§
1331, 1332, the Court offers no opinion on whether Plaintiff
has a state law cause of action against Defendant. If
Plaintiff wishes to pursue such a claim, he must do so in
Wisconsin state court.
lesser theme of Plaintiff's pleading is that he feels
Defendant's conduct tainted his revocation proceedings.
This might implicate Plaintiff's Fourteenth Amendment due
process right to a fair revocation hearing. Alston v.
Smith, 840 F.3d 363, 368 (7th Cir. 2016); Scruggs v.
Jordan, 485 F.3d 934, 939-40 (7th Cir. 2007). The
problem with this claim depends on the status of
Plaintiff's revocation, which is unclear from his
Complaint. If Plaintiff has not yet been revoked, Supreme
Court precedent dictates that this Court must abstain from
hearing the claim until the state criminal proceedings have
concluded. Gakuba v. O'Brien, 711 F.3d 751, 753
(7th Cir. 2013) (“Younger [v. Harris,
401 U.S. 37 (1971)] holds that federal courts must abstain
from taking jurisdiction over federal constitutional claims
that may interfere with ongoing state [criminal]
Plaintiff has been revoked, then viability of the claim turns
on the relief he desires. If Plaintiff seeks release from his
revocation sentence, something not expressly stated in his
Complaint, that may only be achieved through a writ of habeas
corpus. Whitfield v. Howard, 852 F.3d 656, 661 (7th
Cir. 2017). As to Plaintiff's claim for money damages, it
is prohibited by the doctrine of Heck v. Humphrey,
512 U.S. 477 (1994). Heck bars “section 1983
suits that d[o] not directly seek immediate or speedier
release, but rather s[eek] monetary damages that would call
into question the validity of a conviction or term of
confinement.” Whitfield, 852 F.3d at 661.
Plaintiff may only pursue money damages once “he
receives a favorable decision on his underlying conviction or
sentence, such as through a reversal or grant of habeas
corpus relief.” Id.
the Court's concerns, it will allow Plaintiff an
opportunity to amend his complaint. Plaintiff should use the
opportunity to clarify the facts underlying his allegations,
including the status of his revocation proceedings, and the
precise forms of relief he seeks. If he chooses to offer an
amended complaint, Plaintiff must do so no later than
April 13, 2018. If he does not do so, this
action will be dismissed. Plaintiff should be aware that an
amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint is
received, it will be screened pursuant to 28 U.S.C. §
Court will also address Plaintiff's pending motion for
appointment of counsel. Under 28 U.S.C. § 1915(e)(1),
the “court may request an attorney to represent any
person unable to afford counsel.” The Court should seek
counsel to represent an indigent plaintiff if the plaintiff:
(1) has made reasonable attempts to secure counsel; and (2)
“‘the difficulty of the case-factually and
legally-exceeds the particular plaintiff's capacity as a
layperson to coherently present ...