United States District Court, E.D. Wisconsin
JEFFREY L. LEE, Plaintiff,
GAMINO LAW OFFICE LLC and DANIEL JOSEPH SEVCIK, Defendants.
WILLIAM C. GRIESBACH, DISTRICT JUDGE
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.
to Proceed without Prepayment of the Filing Fee
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.
of the Complaint
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).
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).
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.
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
IS THEREFORE ORDERED that Plaintiff's motion for
leave to proceed in forma pauperis (Dkt. No. 2) is
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
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a “strike” under 28
U.S.C. § 1915(g).
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
IS FURTHER ORDERED that the Clerk of Court enter