United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
filed a pro se complaint for an alleged violation of
his civil rights. (Docket #1). This matter comes before the
court on Plaintiff's motion for leave to proceed in
forma pauperis. (Docket #2). In order to allow a
plaintiff to proceed without prepaying the filing fee, the
Court must first decide whether the plaintiff has the ability
to pay the filing fee and, if not, whether the lawsuit is
frivolous. 28 U.S.C. §§ 1915(a), (e)(2)(B)(I). On
the first question, Plaintiff avers that he is unemployed and
collects $800 in government assistance payments. (Docket #2
at 2). Plaintiff's expenses total $700. Id. at
2-3. He has no other property of value. Id. at 3.
Plaintiff's sworn statements reveal that he would be
unable “to provide himself . . . with the necessities
of life” if required to prepay the $400 filing fee in
this matter. Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948); Brewster v. N. Am.
Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
notwithstanding the payment of any filing fee, the Court must
dismiss a complaint if it raises claims that are
“frivolous or malicious, ” which 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. 28
U.S.C. § 1915(e)(2)(B).
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
“labels and conclusions” or “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 allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
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. § 1983, a
plaintiff must allege that: 1) he/she was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him/her 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 a 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,
alleges that the Milwaukee Police Department falsely arrested
him on February 4, 1998, without evidence or even a belief
that he had violated any laws. (Docket #1 at 2). He
apparently gave a statement during the subsequent
interrogation. Id. The statement was, in turn, used
in several prosecutions against him in Wisconsin state courts
in 1998 and 1999. Id. at 2-3. Plaintiff was
convicted in those cases and was imprisoned for many years.
Id. at 3. He was then released on supervision, the
term of which ended in October 2017. Id. Plaintiff
requests that the Court order Defendants to pay him for each
day he spent in prison and on supervision. Id. at 4.
He further asks that the Court “clear his name”
as to the convictions. Id.
the latest in a long line of actions brought by Plaintiff
seeking to collaterally attack his now twenty-year-old
convictions. His most recent prior filing was in 2015. Former
District Judge Charles N. Clevert described Plaintiff's
litigation history and explained why dismissal of that action
Andre Burkett filed this case using a form civil complaint on
which he contends that the State violated his due process
rights. Although the allegations are unclear, Burkett appears
to assert that a district attorney committed perjury and used
a falsified police report related to state-court cases
98CF2857, 98CF2858, 99CF2211, and 99CF1892. As relief,
Burkett asks this court to dismiss the charges in those cases
because the district attorney made a perjurious statement to
the state court.
. . .
This is at least the fourth case Burkett has brought
concerning these convictions. On July 14, 2006, Judge Adelman
denied and dismissed Burkett's 28 U.S.C. § 2254
habeas case regarding the convictions in cases 98CF2857,
99CF1892, and 99CF2211, based on untimeliness. Burkett v.
Champagne, No. 05-C-1139, slip op. (E.D. Wis. July 14,
2006). On February 27, 2010, this court dismissed a civil
case Burkett filed against the Milwaukee County Circuit
Court, the Wisconsin Court of Appeals, and the Wisconsin
Supreme Court, concerning cases 99CF1892 and 99CF2211.
Burkett had asserted that in those cases he was innocent of
the crimes, he was maliciously prosecuted, and a fundamental
miscarriage of justice had occurred; this court dismissed the
claims against the courts or its judges based on judicial
immunity. In addition, this court indicated that to the
extent the complaint was intended to be a petition for writ
of habeas corpus, Burkett would have to file a proper habeas
pleading and could be barred from filing a second or
successive petition. Burkett v. Wis. Sup. Ct., No.
10-C-140, slip op. (E.D. Wis. Feb. 27, 2010). Thereafter, on
September 29, 2014, Magistrate Judge William E. Duffin
dismissed another habeas petition regarding state cases
98CF2587, 99CF2211, and 99CF1892, as a second or successive
petition barred under 28 U.S.C. § 2244(b). Burkett
v. State of Wisconsin, No. 14-C-1160, slip op. (E.D.
Wis. Sept. 29, 2014).
Here, Burkett again seeks dismissal of these state-court
charges against him under the guise of a civil rights case.
But his request is one for habeas relief, not § 1983
relief. Burkett's prior habeas attacks on these
fifteen-year-old convictions have failed. The issues he
raises have already been decided against him. And he cannot
execute an end-run around the merits decision in Judge
Adelman's case or the second-and-successive bar by
rewriting his attack as a civil rights claim. See Dalton
v. United States, No. C 09-05452 SI, 2010 WL 1644701, *2
(N.D. Cal. Apr. 21, 2010) (“Perhaps in an attempt to
circumvent this Court's many prior dismissals of his
successive habeas petitions, Mr. Dalton has styled the
present action not as a habeas petition but as a civil rights
action arising under 28 U.S.C. § 1983 . . . . Mr. Dalton
is attempting once again to attack the validity of his
conviction and sentence by challenging the DEA agent's
conduct leading up to his arrest. Such a challenge must be
brought in a habeas petition under 28 U.S.C. § 2255. The
Court has advised Mr. Dalton on multiple occasions that he
may not file any additional habeas petitions with this Court
unless the Ninth Circuit expressly gives him permission to do
To the extent that Burkett could be seeking other remedies in
this civil rights action, such as damages, if he remains
subject to a form of custody (his address suggests that he is
out of prison, but he may be under supervision on release)
the claim raised in this action is barred by Heck v.
Humphrey, under which there is “no cause of action
under § 1983 unless and until the conviction or sentence
is reversed, expunged, invalidated, or impugned by the grant
of a writ of habeas corpus.” 512 U.S. 477, 489 (1994).
In other words, unless and until the cited criminal
convictions are overturned, Burkett has no § 1983 claim.
If Burkett is no longer under any form of supervision, he