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Strong v. Thompson

United States District Court, E.D. Wisconsin

March 28, 2018




         1. INTRODUCTION

         Plaintiff, 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.

         On 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.


         Federal 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 omitted).

         In 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).

         3. FACTS

         Defendant 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.

         On 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.

         Plaintiff 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: On March 14, 2018, he was sentenced to a term of imprisonment, to be followed by a further term of supervised release. Id.

         4. ANALYSIS

         Suits 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)).

         As 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 ...

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