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Hardaway v. Kerr

United States District Court, E.D. Wisconsin

March 23, 2018

EMILY J. KERR, Defendant.



         Plaintiff 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. § 1915(b)(4).

         The 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. § 1915A(b).

         A claim 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) (citations omitted).

         To 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).

         In 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.

         To 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, 106 (1976)).

         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff's 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.

         A 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] proceedings.”).

         If 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.

         Despite 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. § 1915A.

         The 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 ...

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