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Strong v. Wisconsin State Public Defender

United States District Court, E.D. Wisconsin

July 25, 2018

DENNIS STRONG, Plaintiff,
v.
WISCONSIN STATE PUBLIC DEFENDER, KELLI S. THOMPSON, DEVON M. LEE, CARRIE LAPLANT, AMBER FRICKE, ERIC R. EICKHOFF, HOGAN & EICKHOFF, SC, PAUL HYLAND, FORTE INVESTIGATIONS, LLC, CHRISTOPHER J. ERTL, ERTL LAW OFFICE, LLC, MICHAEL S. FITZSIMMONS, FITZSIMMONS LAW OFFICE, LLC, and REED MARTIN, Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING AS MOOT PLAINTIFF'S MOTION TO AMEND RELIEF (DKT. NO. 7), SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1) AND DISMISSING CASE FOR FAILURE TO STATE A CLAIM

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff is a state prisoner who is representing himself. He filed a complaint (one of seven he has filed in the past year) under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This decision resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and his motion to amend relief, dkt. no. 7. It also screens his complaint, dkt. no. 1.

         I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act applies to this case because the plaintiff was in custody when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil case filing fee, if he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         The court waived the initial partial filing fee. Dkt. No. 4. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee, and will allow him to pay the $350 filing fee over time in the manner explained at the end of this order.

         II. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         The law requires the court 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 if the plaintiff raises 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 relief. 28 U.S.C. §1915A(b).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1) someone deprive him of a right secured by the Constitution or laws of the United States; and 2) that person was acting under color of state law. Buchanan-Moore v. Cty. 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 gives a pro se plaintiff's 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)).

         B. The Plaintiff's Allegations

         The plaintiff's complaint consists of two documents: the court's form complaint, in which the plaintiff lists the defendants and includes his request for relief, dkt. no. 1, and a fifty-three-page document that contains the plaintiff's allegations, dkt. no. 1-1. He also filed 124 pages of attachments to the complaint. Dkt. No. 1-2. The fifty-three-page filing consists of a heading that reads, “State of Wisconsin Circuit Court Outagamie County, ” a caption for two state criminal cases (State of Wisconsin v. Dennis Strong, No. 17-CM-282 and No. 11-CF-05), a state civil case and appeal (Strong v. Gehring, et al., No. 17-CV-615 and Appeal No. 17-AP-1919), and a title that reads, “Affidavit - Statement of Fact in Support of Legal Malpractice Cause of Action - Civil Right Action for Deprivations of Rights.” Dkt. No. 1-1 at 1.

         The plaintiff alleges that the same conduct led to probation revocation proceedings in Case 11-CF-05 and criminal charges in Case 17-CM-282. Dkt. No. 1-1 at 2-3. According to the affidavit attached to the complaint, an individual named “Willard” was the complaining witness in Case 17-CM-282. Id. In May 2017, the plaintiff told defendant Attorney Eric Eickhoff, his public defender in Case 11-CF-05 (and briefly for Case 17-CM-282), “of a party who alerted Strong of material evidence to include but not limited to potential exculpatory value and impeachment coupled with a showing of bias against Strong and to have had direct and indirect contact with Willard[.]” Id. at 2-3, 38-39. Defendant Eickhoff assured the plaintiff that he would follow up with the party, but Eickhoff later told the plaintiff that a private investigator should do it. Id. at ...


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