United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Plaintiff Aston Brown, who is currently incarcerated at the
Oneida County Jail and representing himself, filed a
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. This matter comes before the
court on Plaintiff's motion for leave to proceed without
prepaying the full filing fee and to screen the complaint.
to Proceed without Prepayment of the Filing Fee
plaintiff is required to pay the $400.00 filing fee for this
action, which includes the $350.00 statutory filing fee and a
$50.00 administrative fee. See 28 U.S.C. §
1915(b)(1). If a prisoner does not have the money to pay the
filing fee, he can request leave to proceed without
prepayment of the full filing fee. In that case, the prisoner
plaintiff proceeding in forma pauperis is required
to pay the full amount of the $350.00 statutory filing fee
but not the $50.00 administrative fee. See 28 U.S.C.
§ 1915(b)(1). The plaintiff has filed a certified copy
of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed and paid an initial partial filing fee of $32.06.
The plaintiff's motion for leave to proceed without
prepaying the filing fee will be granted.
of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or 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. 28 U.S.C. §
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).
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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).
of the Complaint
alleges that Judge Christopher Dee of Milwaukee County
violated his constitutional right to a speedy trial during
the fall of 2017. According to Plaintiff, a 90-day deadline
for his trial began to run on June 5, 2017. During a jury
trial scheduled for September 5, 2017, Plaintiff alleges that
he asserted that the 90-day deadline for holding his trial
had expired 48 hours earlier, but Judge Dee allegedly stated
that the 90 days had not expired because weekends did not
count toward the 90-day total. Plaintiff alleges that Judge
Dee ignored him when he claimed that nothing under
Wisconsin's speedy trial law said that weekends do not
count toward the 90-day limit. He further alleges that Judge
Dee rescheduled the trial for a later date despite the 90-day
limit elapsing. Plaintiff seeks damages for violations of his
right to a speedy trial, as well as for being held in what he
alleges was unlawful custody by Milwaukee County.
plaintiff may prevail on a claim for relief under 42 U.S.C.
§ 1983 by showing that he was (1) deprived of a federal
right (2) by a person acting under color of state law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). “A
municipality may not be held liable under § 1983 based
on a theory of respondeat superior or vicarious liability,
” meaning a “municipality only may be held liable
under § 1983 for constitutional violations caused by the
municipality itself through its own policy or custom.”
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir.
2007) (citing Monell v. Dep't of Soc. Servs. of the
City of N.Y., 436 U.S. 658, 694 (1978)). The complaint
names only Milwaukee County as a defendant, so the
unavailability of respondeat superior liability under §
1983 means that the complaint fails to state a claim to the
extent it seeks damages from the County for Judge Dee's
actions. Although Plaintiff also asserts a claim directly
against the County for allegedly detaining him unlawfully,
such a claim arises out of Judge Dee's alleged error in
counting Plaintiff's time in custody for speedy trial
purposes-rather than out of a particular practice or policy
of the County-and therefore fails to state a claim against
the County in the manner permitted by Monell.
Plaintiff's claims against the County will therefore be
where a plaintiff representing himself names only the County
as a defendant rather than individuals who allegedly violated
his rights, it would be appropriate to dismiss the complaint
but grant the plaintiff leave to amend. Here, however, Judge
Dee is the only individual who Plaintiff alleges took any
action that violated his rights. Because Judge Dee is
absolutely immune from a suit for money damages based on
actions taken in his judicial capacity, any claim against him
for alleged violations of Plaintiff's speedy trial rights
would necessarily fail. See Myrick v. Greenwood, 856
F.3d 487, 488 (7th Cir. 2017) (per curiam) (“[J]udges
are absolutely immune from awards of damages for acts taken
in a judicial capacity, whether or not the judges erred in
conducting the litigation.” (first citing Mireles
v. Waco, 502 U.S. 9 (1991); then citing Stump v.
Sparkman, 435 U.S. 349 (1978)). Plaintiff's
complaint will therefore be dismissed in its entirety because
he has provided no arguable basis for relief, having failed
to make any rational argument in law or fact to support his
claims. See House v. Belford, 956 F.2d 711, 720 (7th
Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d
304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)).
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis (ECF No. 2)
IS FURTHER ORDERED that this action is
DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B) and ...