United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED
WITHOUT PREPAYING THE FILING FEE (DKT. NO. 2), SCREENING THE
COMPLAINT (DKT. NO. 1) AND DISMISSING THE CASE
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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
Motion to Proceed without Prepayment of the Filing
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.
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.
Screening the Complaint
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.
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).
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,
Allegations in the Complaint
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. 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.
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.
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.
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 ...