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Strong v. State

United States District Court, E.D. Wisconsin

May 21, 2019




         Plaintiff Dennis Strong, representing himself, filed a complaint alleging that the defendants violated his civil rights under 42 U.S.C. §1983 when the appellate attorney appointed by the Wisconsin State Public Defenders' office declined to obtain the recordings of phone calls that were allegedly relevant to the plaintiff's state criminal proceeding. Dkt. No. 1. This order resolves the plaintiff's motion to proceed without prepayment of the filing fee and screens the complaint.

         I. Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to let an incarcerated plaintiff proceed with his case without prepaying the filing fee if he meets certain conditions. One of those conditions is that the plaintiff must 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.

         On April 4, 2019, the court ordered the plaintiff to pay an initial partial filing fee of $0.52 by April 25, 2019. Dkt. No. 6. The court received $1.00 from the plaintiff on April 15, 2019. 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 remainder of the filing fee over time in the manner explained at the end of this order.

         II. Screening the Complaint

         Federal law requires that the court 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 part of it) 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).

         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 proceed under 42 U.S.C. §1983, a plaintiff must allege that 1) someone deprived him of a right secured by the Constitution or laws of the United States; and 2) whoever deprived him of that right 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)).

         A. Allegations in the Complaint

         The plaintiff alleges that he faced criminal charges in Outagamie County based on a complaint filed on March 22, 2017 (No. 17-CM-282). Dkt. No. 1 at ¶2. He had a two-day jury trial starting December 12, 2017. Id. at ¶3. The plaintiff states that shortly before the trial started, and continuing throughout the trial, he believed that someone was tampering with witnesses and intimating both them and him. Id. at ¶6. Specifically, he alleges that he had three phone calls with Gary D. Engel in the middle of December 2017 that were recorded by the Outagamie County Jail. Id.; Dkt. No. 1-1 at 7-9.[1] The plaintiff says that during those calls, he learned that witnesses for the defense were not going to attend the trial even though they were subpoenaed. He says that he learned that another individual told a fellow inmate named “Bird” to intimidate the plaintiff. Id. The plaintiff indicates that he informed the judge in his criminal trial that he believed witnesses were being tampered with and that he was being intimidated. Dkt. No. 1-1 at 11.

         According to the plaintiff, despite alerting the judge to these issues, a judgment of conviction was entered against him on March 15, 2018. Dkt. No. 1 at ¶9. The plaintiff then filed notice of intent to pursue post-conviction relief, and the Wisconsin State Public Defenders' Office appointed him an appellate attorney, Timothy O'Connell. Id. at ¶10.

         The plaintiff says he told O'Connell about the recorded calls, and O'Connell told him in a letter that the Wisconsin State Public Defenders' Office would not pay for him to acquire the recordings. Id. at ¶12; Dkt. 1-1 at 1. That meant the plaintiff couldn't use the recordings in his appeal. Id. The plaintiff says that he independently submitted an open records request to the Outagamie County Sheriff's office regarding the recordings and alleges that the cost of obtaining the recordings would be $0.78. Dkt. No. 1 at ¶¶14-15, 17; Dkt. No. 1-1 at 2.

         The plaintiff filed this federal case, asking for declaratory and injunctive relief against the State of Wisconsin, Governor Tony Evers, the Wisconsin State Public Defenders' Office and its director, Kelli S. Thompson. Dkt. No. 1 at ¶¶21-23. He states that these parties are the appropriate parties to sue because they are responsible for promulgating Chapter 977 of the Wisconsin State Statutes (the State Public Defender statute) and controlling the budgets related to the Wisconsin State Public Defenders' Office. Id. The plaintiff wants this court to stay any state appellate proceedings while it determines whether it should enter a declaratory judgment ...

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