UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
DOMINIC GABRIEL MAZZUCCO,
Plaintiff, v. Case No. 24-CV-350-JPS
KATHERINE M. FINDLEY, ORDER Defendant.
Plaintiff Dominic Gabriel Mazzucco, an inmate confined at the Milwaukee Secure Detention Facility, filed a pro se complaint under 42 U.S.C. § 1983 alleging that Defendant violated his constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for leave to proceed without prepaying the filing fee and screens his complaint. 1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE The Prison Litigation Reform Act (“PLRA”) applies to this case because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C. § 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability to proceed with his case without prepaying the civil case filing fee. Id. § 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id. On April 5, 2024, the Court assessed Plaintiff an initial partial filing fee of $1.84. ECF No. 6. Plaintiff paid that fee on April 26, 2024. The Court will grant Plaintiff’s motion for leave to proceed without prepaying the filing fee. ECF No. 2. Plaintiff must pay the remainder of the filing fee over time in the manner explained at the end of this Order. 2. SCREENING THE COMPLAINT 2.1 Federal Screening Standard Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint if the prisoner raises 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). In determining whether the complaint states a claim, the Court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). A complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief 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)). “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). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)). 2.2 Plaintiff’s Allegations Plaintiff brings this action against Katherine M. Findley (“Findley”), his public defender in Dodge County Case N. 2018CF000251. ECF No. 1 at 1. Plaintiff alleges that Findley failed to properly represent him in his criminal case and that she ignored his concern that his double jeopardy rights were being violated. Id. Findley failed to file any motions to address this situation and failed to address it with the district attorney or the circuit court judges. Id. Instead of helping him, Findley argued with Plaintiff that his situation was not double jeopardy. Id. 2.3 Analysis Plaintiff cannot proceed against Findley, his criminal defense attorney. Plaintiff provides that Attorney Findley was a public defender as opposed to privately counsel retained by the public defender’s office. Under either circumstance, however, Plaintiff’s § 1983 claim against Attorney Findley fails because “a lawyer is not a state actor when he [or she] performs the traditional function of counsel to a defendant in a criminal case.” Walton v. Neslund, 248 F. App’x 733, 733 (7th Cir. 2007). Thus, Attorney Findley did not act under color of state law and cannot be held liable under § 1983. As such, Plaintiff fails to state a claim against Findley. The Court notes that if Plaintiff seeks to challenge his conviction as a result of ineffective counsel, a petition for a writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive remedy to do so. Finally, although courts generally must permit civil plaintiffs at least one opportunity to amend their pleadings, the Court need not do so where the amendment would be futile. Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015). Because no amendment can overcome Plaintiff’s issue, it would be futile to allow him to amend the complaint. As such, the Court is obliged to dismiss this action, with prejudice for Plaintiff’s failure to state a claim. Accordingly, IT IS ORDERED that Plaintiff’s motion to proceed without prepayment of the filing fee, ECF No. 2, be and the same is hereby GRANTED; IT IS FURTHER ORDERED that this case be and the same is hereby DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the 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
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
DOMINIC GABRIEL MAZZUCCO,
Plaintiff, v. Case No. 24-CV-350-JPS
KATHERINE M. FINDLEY, ORDER Defendant.
Plaintiff Dominic Gabriel Mazzucco, an inmate confined at the Milwaukee Secure Detention Facility, filed a pro se complaint under 42 U.S.C. § 1983 alleging that Defendant violated his constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for leave to proceed without prepaying the filing fee and screens his complaint. 1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE The Prison Litigation Reform Act (“PLRA”) applies to this case because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C. § 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability to proceed with his case without prepaying the civil case filing fee. Id. § 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id. On April 5, 2024, the Court assessed Plaintiff an initial partial filing fee of $1.84. ECF No. 6. Plaintiff paid that fee on April 26, 2024. The Court will grant Plaintiff’s motion for leave to proceed without prepaying the filing fee. ECF No. 2. Plaintiff must pay the remainder of the filing fee over time in the manner explained at the end of this Order. 2. SCREENING THE COMPLAINT 2.1 Federal Screening Standard Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint if the prisoner raises 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). In determining whether the complaint states a claim, the Court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). A complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief 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)). “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). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)). 2.2 Plaintiff’s Allegations Plaintiff brings this action against Katherine M. Findley (“Findley”), his public defender in Dodge County Case N. 2018CF000251. ECF No. 1 at 1. Plaintiff alleges that Findley failed to properly represent him in his criminal case and that she ignored his concern that his double jeopardy rights were being violated. Id. Findley failed to file any motions to address this situation and failed to address it with the district attorney or the circuit court judges. Id. Instead of helping him, Findley argued with Plaintiff that his situation was not double jeopardy. Id. 2.3 Analysis Plaintiff cannot proceed against Findley, his criminal defense attorney. Plaintiff provides that Attorney Findley was a public defender as opposed to privately counsel retained by the public defender’s office. Under either circumstance, however, Plaintiff’s § 1983 claim against Attorney Findley fails because “a lawyer is not a state actor when he [or she] performs the traditional function of counsel to a defendant in a criminal case.” Walton v. Neslund, 248 F. App’x 733, 733 (7th Cir. 2007). Thus, Attorney Findley did not act under color of state law and cannot be held liable under § 1983. As such, Plaintiff fails to state a claim against Findley. The Court notes that if Plaintiff seeks to challenge his conviction as a result of ineffective counsel, a petition for a writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive remedy to do so. Finally, although courts generally must permit civil plaintiffs at least one opportunity to amend their pleadings, the Court need not do so where the amendment would be futile. Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015). Because no amendment can overcome Plaintiff’s issue, it would be futile to allow him to amend the complaint. As such, the Court is obliged to dismiss this action, with prejudice for Plaintiff’s failure to state a claim. Accordingly, IT IS ORDERED that Plaintiff’s motion to proceed without prepayment of the filing fee, ECF No. 2, be and the same is hereby GRANTED; IT IS FURTHER ORDERED that this case be and the same is hereby DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the 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 Plaintiff shall collect from his institution trust account the $348.16 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 Plaintiff’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 case. If Plaintiff is transferred to another county, state, or federal institution, the transferring institution shall forward a copy of this Order along with his remaining balance to the receiving institution; and IT IS FURTHER ORDERED that a copy of this Order be sent to the officer in charge of the agency where Plaintiff is confined. The Clerk of Court is directed to enter judgment accordingly. Dated at Milwaukee, Wisconsin, this 17th day of May, 2024. A \ SRE ) Ye NY J. R. Stadf?meweller U.S. District Judge
This Order and the judgment to follow are final. A dissatisfied party may appeal this Court’s decision to the Court of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within thirty (30) days of the entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend this deadline if a party timely requests an extension and shows good cause or excusable neglect for not being able to meet the thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1). Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be non-meritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee unless he demonstrates that he is in imminent danger of serous physical injury. Id. Under limited circumstances, a party may ask this Court to alter or amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight (28) days of the entry of judgment. The Court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more than one year after the entry of the judgment. The Court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). A party is expected to closely review all applicable rules and determine, what, if any, further action is appropriate in a case.
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