IN THE UNITED STATES DISTRIcT COURT FOR THE WESTERN DISTRICT OF WISCONSIN a CHASE BORUCH, Case No.: 1/7-cv-688-wmc Plaintiff-Appellant, Vv. App. No.: . DONALD J. DUNPHY, ET. AL., Defendant-Appellees. $$ NOTICE OF APPEAL (Fed. R. App. P. 3; Cir. R. 3) i TO: United States Court of Appeals seventh Circuit Attn: Gino Agnello, Clerk Everett McKinley Dirksen United States Courthouse 219 South Dearborn Street Room 2722 Chicago, IL 60604-1702 United States District Court Western District of Wisconsin Attn: Peter Oppeneer, Clerk Robert W. Kastenmeier United States Courthouse 120 North Henry Street Room 320 Madison, WI 53703-2559 Phone: 608.264,5156 Fax: 608.264.5925 Email: [email protected] Wisconsin Department of Justice Attn: Corey Francis Finkelmeyer Assistant Attorney General 17 West Main Street (53703) P.O. Box 7857 (53707) Madison, WI 53707-7857 Phone: 608.266.7342 Fax: 608.267.8906 Email: [email protected] Email: [email protected] PLEASE TAKE NOTICE that the Plaintiff (Appellant) in the above~cited matter, hereby appeals to the United States Court of Appeals for the Seventh Circuit, from the FINAL judgment entered

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in this action on the 26 day of November, 2018. A true and corr- ect copy of the Judgment/Order appealed from is attached hereto as Exhibits A-A.3, and as Exhibit B. On December 10, 2018, Boruch filed a Rule 59 Motion To Alter/ Amend Judgment (ECF Nos. 14 and 15)(See Fed. R. App. P. 4(a)(4) (A)(iv)), which was disposed of on September 16, 2019, in favor of the Defendants-Appellees. A copy of the disposition is attached □ hereto as Exhibits C-C.2. This Notice Of Appeal is timely, because it must be filed on or before October 15, ead Rap. □□ □□ cet" Lowe . Mea 4(a)(1)(A)). od □ “> yy LE NS nnmaenerne Respectfully signed this am day of Optdber, 2019. ee / as □□ ee See fe # ee eo OE □□ □□

Chase Bot = 582646 Waupun Correctional Institution P.O. Box 351 Waupun, WI 53963

Distribution: Clerk, U.S. District Court, Western District of Wisconsin (via ECF) Clerk, U.S. Court of Appeals for the Seventh Circuit (1 copy via U.S. Mail) AAG, Corey Finkelmeyer, Wisconsin Department of Justice (via ECF) Chase Boruch .

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IN THE UNITED STATES DISTRICT COURT _ FORTHE WESTERN DISTRICT OF WISCONSIN CHASE BORUCH, □ Plaintiff, ORDER v. Case No. 17-cv-688-wme □ DONALD J. DUNPHY, GALEN BAYEN-ALLISON, ROBERT J. KAISER, GREGORY M. WEBER, BRAD SCHIMEL, JOHN DOE, AND JANE DOE, Defendants.

Plaintiff Chase Boruch brings this proposed civil action under

, 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

(e)(2). Because Boruch’s state proceeding is ongoing, the court is dismissing this matter without prejudice.

ALLEGATIONS OF FACT! Plaintiff 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

(1}{a). State v. Boruch, Case No.

‘In addressing a pro se litigant’s complaint, the court must read the allegations generously, Haines □ v. Kerner,

(1972). For purposes of this opinion and order, the court assumes the following facts based on the allegations in plaintiff's complaint.

2010CF269 (Lincoln Cty. Cix, 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. On September 29, 2015, Boruch filed a petition for post-conviction relief under

, 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,

(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. Beruch, Case No. 2018AP152 (Wis. filed Jan. 4. 2018), available at https://wseca.wicourts.gov (last visited Nov. 26, 2018).

OPINION In this 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 ineffective. Plaintiff's 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,

(1971). Here, plaintiff is

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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,

, 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,

(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). While 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,

(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 arid he sought to re-file this case, the court would likely dismiss plaintiff's claims under Heck v. Humphrey,

(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

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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]

.” ld. Otherwise, a claim for damages based on a conviction or sentence is not cognizable under

.

IT IS ORDERED that this matter is DISMISSED WITHOUT PREFUDICE. Entered this 26th day of November, 2018. BY THE COURT: /s/ WILLIAM M.CONLEY = District Judge

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~ IN THE UNITED STATES DISTRICT COURT | FOR THE WESTERN DISTRICT OF WISCONSIN

CHASE BORUCH, JUDGMENT IN A CIVIL CASE Plaintiff, 17-cv-688-wmec v.

DONALD J. DUNPHY, GALEN BAYEN-ALLISON, ROBERT J. KAISER, GREGORY M. WEBER, BRAD SCHIMEL, JOHN DOE, AND JANE DOE, . Defendants.

IT IS ORDERED AND ADJUDGED that judgment is entered dismissing this case without prejudice. /sf 11/26/2018 Peter Oppeneer, Clerk of Court Date

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN CHASE BORUCH, Plaintiff, ORDER Case No, 17-cv-688-wme DONALD J. DUNPHY, GALEN BAYEN- ALLISON, ROBERT J. KAISER, GREGORY M. WEBER, BRAD SCHIMEL, JOHN DOE, and JANE DOE, Defendants.

Pro se plaintiff Chase Boruch filed this lawsuit under

, claiming that his Wisconsin postconviction proceeding has been fundamentally unfair. On November 26, 2018, the court dismissed this case without prejudice because his postconviction proceedings were ongoing and Boruch was seeking only injunctive relief that would directly interfere with that proceeding. (Op. & Order (dict. #12) at 3.) Boruch has since filed a motion to alter or amend under Federal Rule of Civil Procedure 59(e), asking that the court stay, rather than dismiss, this action. (Dkt. #14.) For the reasons that follow, the court is denying his motion.

OPINION Under Rule 59(e}, a court has the opportunity to consider newly discovered material evidence or intervening changes in the controlling law or to correct its own manifest errors of law or fact to avoid unnecessary appellate procedures. Moro v. Shell Oil Co.,

(7th Cir. 1996); see Harrington v. City of Chi.,

(7th Cir. 2006). A “manifest error” occurs when the district court commits a “wholesale disregard, misapplication, or failure

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to recognize controlling precedent.” Burritt v. Ditlefsen,

(7th Cir, 2015) (internal quotations and citations omitted). Rule 59(e) “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment.” Moro,

. Rule 59(e) relief is only available if the movant clearly establishes one of the foregoing grounds for relief. Harrington,

(citing Romo v. Gulf Stream Coath, Ine,,

, 1122 n.3 (7th Cir. 2001). Boruch has not pointed to any newly discovery evidence or error in law or fact warranting relief. First, Boruch claims that the court got the facts wrong, expiaining that he was appealing the Wisconsin Court of Appeals’ decision at the time he brought this lawsuit. The court’s order was not wrong; the court acknowledged that Boruch’s postconviction proceedings were not complete, which was why the court deemed dismissal appropriate. Boruch’s other arguments represent disagreement with the court’s conclusion, not a mistake of law or fact. Boruch disagrees with this court’s conclusion that dismissal was appropriate pursuant to Younger v. Harris,

(1971), since his postconviction proceedings were not complete, and there.was overlap between that case and his proposed. § 1983 claims. While Boruch’s preference is that the court stay this action, the court explained that dismissal, without prejudice to Boruch’s ability to refile it once his postconviction proceeding is final, is proper, since Boruch seeks only injunctive relief in this lawsuit. The court sees no clear error in that analysis. Boruch also disagrees with two comments the court made about the possibility of him □ refiling his lawsuit once his postconviction proceeding finishes. For one, he disagrees with the court’s comment that Heck v. Humphrey,

(1994), may pose a bar to him Teves □□

pursuing monetary damages once his postconviction proceeding is final. Boruch also disagrees _ with the court’s comment that his claims against the prosecutor defendants involved in that

proceeding would be subject to dismissal on the ground that prosecutors are entitled to absolute

immunity. While Boruch expresses disagreement with these comments, he has not pointed to

a manifest error in Jaw or fact. More importantly, these comments simply were intended to

provide Boruch legal standards that may be relevant to claims for monetary relief he may seek

to bring once his postconviction proceedings are complete. In other words, the principles of

Heck and prosecutorial immunity were not the basis for the court’s dismissal, the Younger abstention doctrine was. In sum, Boruch has not pointed to any manifest error in the court’s

decision to dismiss this action without prejudice, so the court is denying his motion to alter or

amend its judgment.

ORDER IT IS ORDERED that plaintiff Chase Boruch’s motion to alter or amend judgment (dict. #14) is DENTED.

Entered this 16th day of September, 2019. _ . BY THE COURT: /s/ WILLIAM M. CONLEY District Judge

Mr. Peter Oppeneer Clerk United States District Court Western District of Wisconsin United States Courthouse 120 North Henry Street Room 320 Madison, WI 53703-2559 Chase Boruch - 582646 Waupun Correctional Jnstitution Waupun, WI 53963 re: Chase Boruch v. Donald Dunphy, Et. Al., Case No. 17-cv-688-wme

Clerk Oppeneer: Enclosed, please find my Notice Of Appeal, along with a Transcript Information Sheet. On September 6, 2017, I filed a Motion To Pro- ceed IFP (ECF No. 2), and I ask that you please use that appli- cation to determine indigency for, the. purposes of proceeding wit- hout paying the Filing dee sssocigted with\ this appeal. ao . ee / Respectfully, 1" 4

Chase Boruch Dated: Lo, Zone

Distribution: U.S. District Court, Western District of Wiscon- sin, e-file Wisconsin Department of Justice, by electronic means □ Chase Boruch