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Parks v. State, Division of Hearings and Appeals

United States District Court, E.D. Wisconsin

June 4, 2019

MERRITT ANDREW PARKS, Plaintiff,
v.
STATE OF WISCONSIN DIVISION OF HEARINGS AND APPEALS, Defendants.

          ORDER

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Merritt Andrew Parks, a pro se inmate at Fox Lake Correctional Institution, filed a complaint under 42 U.S.C. § 1983 alleging that the defendant violated his constitutional rights by revoking his extended supervision and re-confining him to a sentence of three years and four days for absconding for crimes he committed and for which he already served time. This matter is before the court on Parks's motion to proceed without prepayment of the civil case filing fee (ECF No. 2) and for screening of his complaint (ECF No. 1).

         The court has jurisdiction to resolve Parks's motion to proceed without prepayment of the filing fee and to screen his complaint in light of Parks's consent to the full jurisdiction of a magistrate judge and the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         1. Motion to Proceed without Prepayment of the Filing Fee

          The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the prisoner pay an initial partial filing fee. On May 21, 2019, the court ordered Parks to pay an initial partial filing fee of $124.95. (ECF No. 11.) Parks paid the full filing fee on May 23, 2019. As such, the court will deny his motion.

         2. Screening of the Complaint

         The 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).

         To state a cognizable claim under the federal notice pleading system, a 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). 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 the 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 for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him 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. Village of North 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, 106 (1976)).

         2.1 Allegations in the Complaint

         Parks alleges that on October 23, 2018, during his revocation hearing, administrative law judge M. Nitti ordered his “extended supervision in Sauk County Case number 08CF11 to be revoked.” (ECF No. 1 at 2) Nitti ordered Parks “reconfined back to prison for three year and four days” in response to allegations submitted by Parks's parol agent, Joshua Statz. (Id. at 3.)

         Parks alleges that Statz said Parks “abscond[ed] for three and a half years.” Parks assert, however, that during that time he had committed and served sentences for other crimes in two other states. He states he should not be penalized twice for the same crimes.

         Parks says that his original sentence regarding his Sauk County case was for five years: two years imprisonment and three years' probation. He asserts that his newly imposed imprisonment goes beyond that which is allowed under Wisconsin state law regarding probation violations. He notes that under Wisconsin law he should have received either a “A.T.R. or sanctions.” (ECF No. 1 at 4.) Parks further asserts that “under Wisconsin state statutes 302.113(8M) (a)(9), (AM) 973.01 Bifurcated Sentence (2) if a person is released to extended supervision under this section and violates a condition of the extended supervision and is revoked and returned to prison for any time not to exceed the ...


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