United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY, DISTRICT JUDGE.
Chase Boruch brings this proposed civil action under 42
U.S.C. § 1983, claiming that his Wisconsin
postconviction proceeding has been fundamentally unfair.
Having been permitted to proceed in forma pauperis,
however, Boruch's complaint requires screening under 28
U.S.C. § 1915(e)(2). Because Boruch's state
proceeding is ongoing, the court is dismissing this matter
OF FACT 
Chase Boruch is currently incarcerated at Waupun Correctional
Institution, where he is serving a life sentence, having been
found guilty of first-degree intentional homicide in
violation of Wis.Stat. § 940.01(1)(a). State v.
Boruch, Case No. 2010CF269 (Lincoln Cty. Cir. Ct. Jan.
23, 2012). Defendants include: Lincoln County District
Attorneys Donald J. Dunphy and Galen Bayen-Allison; Assistant
Attorneys General Robert Kaiser and Gregory Weber; Wisconsin
Attorney General Brad Schimel; and John and Jane Doe.
September 29, 2015, Boruch filed a petition for
post-conviction relief under Wis.Stat. § 974.06,
claiming ineffective assistance of counsel during his
post-conviction and appeal proceedings. The Wisconsin circuit
court denied that petition on April 27, 2017, reasoning that
his collateral attack was procedurally barred by State v.
Escalona-Naranjo, 185 Wis.2d 168 (1994). Boruch lost an
appeal of that decision to the Wisconsin Court of Appeals,
and he is currently appealing that decision to the Wisconsin
Supreme Court in State v. Boruch, Case No. 2018AP152
(Wis. filed Jan. 4. 2018), available at
https://wscca.wicourts.gov (last visited Nov. 26, 2018).
lawsuit, plaintiff seeks to proceed on claims that
defendants' handling of the § 974.06 petition
violated his rights to access the courts, due process and
equal protection. Specifically, he seeks an injunction
requiring Wisconsin courts to grant him an evidentiary
hearing on a claim that his post-conviction counsel was
complaint suffers from a number of problems, the most
fundamental being that this lawsuit arises directly from
plaintiff's on-going state court challenge to
his criminal conviction. Federal courts may not hear cases
that interfere with ongoing state criminal prosecutions.
Younger v. Harris, 401 U.S. 37, 45 (1971). Here,
plaintiff is currently appealing the decision he is
challenging, and thus his federal challenge to his those
proceedings and request for an injunction certainly has the
potential to interfere with that proceeding. See Olsson
v. O'Malley, 352 Fed.Appx. 92, 94 (7th Cir. 2009)
(concluding that abstention was appropriate where plaintiff
bringing § 1983 challenge was simultaneously seeking
state court habeas relief and plaintiff did not show that the
state court procedures were ineffective). Accordingly, since
the only relief he is seeking in this lawsuit is injunctive
in nature, the court is dismissing this lawsuit without
prejudice. Cf. Gakuba v. O'Brien, 711 F.3d 751,
754 (7th Cir. 2013) (finding that in circumstances in which a
plaintiff is seeking monetary damages related to an on-going
state proceeding, a stay, rather than dismissal without
prejudice, is necessary to preserve the plaintiff's civil
rights damages claims).
it appears unlikely that plaintiff is interested in pursuing
money damages related to his purported claims, it is worth
noting that re-filing this lawsuit will likely prove futile.
First, the named defendants are absolutely immune from suit.
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)
(“[A] state prosecute ha[s] absolute immunity for the
initiation and pursuit of a criminal prosecution, including
presentation of the state's case at trial.”).
Second, even if plaintiff's state court appeal is
unsuccessful and he sought to re-file this case, the court
would likely dismiss plaintiff's claims under Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), since a judgment
in his favor in this court could imply the invalidity of his
conviction. Indeed, to recover damages for a prisoner's
“unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, ” the plaintiff must
prove “that the conviction or sentence has been
reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determinations, or called into question by a federal
court's issuance of a writ of habeas corpus [under] 28
U.S.C. § 2254.” Id. Otherwise, a claim
for damages based on a conviction or sentence is not
cognizable under 42 U.S.C. § 1983. Id.
ORDERED that this matter is DISMISSED WITHOUT PREJUDICE.
this 26th day of November, 2018.