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Lee v. Gamino Law Office LLC

United States District Court, E.D. Wisconsin

November 5, 2019

JEFFREY L. LEE, Plaintiff,
v.
GAMINO LAW OFFICE LLC and DANIEL JOSEPH SEVCIK, Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, DISTRICT JUDGE

         Plaintiff Jeffrey L. Lee, who is currently serving a state prison sentence at Kettle Moraine Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff's motion for leave to proceed without prepaying the full filing fee and to screen the complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         Plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $15.75. Plaintiff's motion for leave to proceed without prepaying the filing fee will be granted.

         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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To state a cognizable claim under the federal notice pleading system, 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)). In this case, Plaintiff alleges that his former attorney, Daniel J. Sevcik of Gamino Law Offices LLC, violated his rights by failing to introduce certain evidence at his jury trial in Milwaukee County Case Number 2018CF5088. Plaintiff asserts an ineffective assistance of counsel claim against Sevcik and seeks $2, 000, 000 in damages. But Sevcik and Gamino Law Offices are not state actors amenable to suit in a § 1983 case. In addition, Plaintiff cannot proceed with claims under § 1983 that would challenge his criminal conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (barring any suit under § 1983 where “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction”); Brown v. Hicks, 676 Fed.Appx. 601, 603 (7th Cir. 2017) (noting that district court properly dismissed ineffective assistance of counsel claim since that claim necessarily calls the validity of the conviction into question). Accordingly, Plaintiff's claims against them will be dismissed.

         This plaintiff has provided no arguable basis for relief, having failed to make any rational argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).

         IT IS THEREFORE ORDERED that Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED.

         IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.

         IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has incurred a “strike” under 28 U.S.C. § 1915(g).

         IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect from his institution trust account the $334.25 balance of the filing fee by collecting monthly payments from Plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to the prisoner's trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the case name and number assigned to this action. If Plaintiff is transferred to another institution, the transferring institution shall forward a copy of this Order along with Plaintiff's remaining balance to the receiving institution

         IT IS FURTHER ORDERED that the Clerk of Court enter ...


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