United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
an inmate at the Outagamie County Jail, proceeds in this
matter pro se. Defendant is the Wisconsin State
Public Defender. On October 18, 2017, the Court screened
Plaintiff's Complaint in accordance with 28 U.S.C.
§§ 1915 and 1915A. (Docket #7). The Court allowed
Plaintiff to proceed on a claim under the Sixth Amendment for
Defendant's failure to timely secure representation for
him in a state criminal proceeding. Id. at 3-4.
Plaintiff was permitted to sue Defendant in her official, not
personal, capacity. Id. at 4.
December 15, 2017, Defendant moved to dismiss the Complaint.
(Docket #14). That motion is now fully briefed and ripe for
adjudication. (Docket #14-18 and #21). For the reasons stated
below, Defendant's motion will be granted and this action
will be dismissed.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief.
Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint
must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give
“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) (citation omitted).
The allegations must “plausibly suggest that the
plaintiff has a right to relief, raising that possibility
above a speculative level[.]” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation
reviewing Plaintiff's Complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in [his]
favor[.]” Id. at 480-81. However, a complaint
that offers “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
Court must identify allegations “that, because they are
no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679. Ultimately, dismissal
is only appropriate “if it appears beyond doubt that
the plaintiff could prove no set of facts in support of his
claim that would entitle him to the relief requested.”
Enger v. Chicago Carriage Cab Corp., 812 F.3d 565,
568 (7th Cir. 2016).
requests that the Court take judicial notice of a certified
copy of the court records for Plaintiff's criminal case,
which underlies his claim in this action. (Docket #15 at 2
n.1). The Court will do so. Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007);
Fed.R.Evid. 201(b); (Docket #15-1 at 1) (certification of the
court record by the Clerk of the Outagamie County Circuit
Court). Taking those records together with Plaintiff's
allegations, the material facts are as follows.
March 22, 2017, Plaintiff was charged with three misdemeanors
in Outagamie County Circuit Court. (Docket #15-1 at 2-6).
Over the course of summer and fall of 2017, during the
pendency of his criminal case, Plaintiff was appointed three
attorneys. See (Docket #15-1 at 33-38, 111-13,
170-89). Each withdrew due to difficulties in representing
him. Id. On October 25, 2017, upon the third
attorney's withdrawal, the circuit court ruled that
Plaintiff had forfeited his right to counsel and required him
to proceed to trial pro se. Id. at 170.
According to the transcript of the October 25 hearing,
submitted by Plaintiff, (Docket #17 at 205-13), the circuit
court began the hearing by declaring that Plaintiff had
forfeited his right to counsel. Id. at 206.
Plaintiff took no issue with that determination through the
remainder of the hearing. Id. at 206-12.
was found guilty by a jury on December 13, 2017. State of
Wisconsin v. Dennis C. Strong, Jr., Outagamie County
Circuit Court Case No. 2017-CM-282, available at:
https://wcca.wicourts.gov. On March 14, 2018, he was
sentenced to a term of imprisonment, to be followed by a
further term of supervised release. Id.
against state officials in their official capacity are
generally barred by the Eleventh Amendment. MSA Realty
Corp. v. State of Ill., 990 F.2d 288, 291 (7th Cir.
1993). The doctrine of Ex Parte Young provides an
exception to the Eleventh Amendment bar for suits brought
against a state official in his or her official capacity for
prospective injunctive or declaratory relief. Id.
(citing Ex parte Young, 209 U.S. 123 (1908)).
noted above, Plaintiff was permitted to proceed against
Defendant in her official capacity for violating his Sixth
Amendment right to counsel. He was not permitted to pursue a
claim of money damages. (Docket #7 at 4). However, because
Plaintiff filed this action on July 17, 2017 while his
criminal case was ongoing, prospective declaratory relief