UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ARMOND D. CURRY,

Plaintiff,

v. Case No. 20-C-964

DAVID BOROWSKI, et al.,

Defendants.

SCREENING ORDER

Plaintiff, who is a pretrial detainee at Milwaukee County Jail and representing himself, filed a complaint under

, 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

(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

(a)(2), and has been assessed and paid an initial partial filing fee of $5.87. Plaintiff’s motion for leave to proceed without prepaying the filing fee will be granted. SCREENING OF THE COMPLAINT The court has a duty to review any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, and dismiss any complaint or portion thereof if the prisoner has raised any 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 screening a complaint, I must determine whether the complaint complies with the Federal Rules of Civil Procedure and states at least plausible claims for which relief may be granted. 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). It must be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well as when and where the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions or inactions caused. A complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

(quoting Twombly,

). “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.”

(internal quotations omitted). ALLEGATIONS OF THE COMPLAINT

Plaintiff, a pretrial detainee at Milwaukee County Jail, states that on October 7, 2019, Assistant District Attorney Edward O’Brien filed a motion before Judge Borowski to completely rescind Plaintiff’s phone, mail, and visitation access. Plaintiff states that on October 14, 2019, Judge Borowski signed off on this order and rescinded all of Plaintiff’s privileges until prosecution was complete. Plaintiff alleges that his due process rights were violated because he was prevented from preparing a response to the state’s order and ADA O’Brien had no clear and concise evidence. Plaintiff also states that there was no evidence for Judge Borowski to rescind Plaintiff’s ability to communicate to prevent the “further” intimidation of witnesses. Plaintiff claims his First Amendment rights were violated. As relief, Plaintiff asks the court to direct Judge Borowski to “relinquish” and restore Plaintiff’s privileges in full (including his access to phone, mail, and

visitations) and award Plaintiff a monetary award due to his nine months of not being able to contact the outside world. THE COURT’S ANALYSIS “To state a claim for relief under

, a plaintiff must allege that he or she was deprived of a right secured by the Constitution or the laws of the United States, and that this deprivation occurred at the hands of a person or persons acting under the color of state law.” D.S. v. E. Porter Cty. Sch. Corp.,

(7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee,

(7th Cir. 2009)). Plaintiff’s claims against Judge Borowski fail because he is attempting to sue a state court judge. Judges generally have absolute immunity for actions taken in the scope of their judicial duties. See Stump v. Sparkman,

, 355–56 (1978). “A judge has absolute immunity for any judicial actions unless the judge acted in absence of all jurisdiction.” Polzin v. Gage,

(7th Cir. 2011). As a result, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump,

. In assessing whether a defendant is entitled to judicial immunity, the court considers “‘whether it is a function normally performed by a judge’ and the ‘expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity’” and “whether the act ‘involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge.’” Kowalski v. Boliker,

(7th Cir. 2018) (citations omitted). Plaintiff states that he dealt with Judge Borowski through court proceedings and has not alleged claims that fall outside of a judge’s judicial capacity. Plaintiff’s

claims against Judge Borowski therefore fail as he is entitled to judicial immunity. Plaintiff is also attempting to sue a state prosecutor, ADA O’Brien. “Prosecutors are absolutely immune from liability for damages under § 1983 for conduct that is functionally prosecutorial; this immunity is understood to broadly cover all conduct associated with the judicial phase of the criminal process.” Bianchi v. McQueen,

(7th Cir. 2016) (citing Van de Kamp v. Goldstein,

, 341–43 (2009); Burns v. Reed,

(1991); Imbler v. Pachtman,

, 430–31 (1976)). “[A]bsolute immunity shields prosecutors even if they act ‘maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.’” Williams v. City of Chicago,

(N.D. Ill. 2018) (quoting Henry v. Farmer City State Bank,

(7th Cir. 1986)). Plaintiff’s allegations against ADA O’Brien—that he filed a motion before a state court to restrict Plaintiff’s access to mail, phone, and visitors—is associated with his prosecutorial role in a criminal court proceeding. Thus, Plaintiff’s claims against ADA O’Brien also fail.

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,

(7th Cir. 1992) (quoting Williams v. Faulkner,

(7th Cir. 1988), aff'd sub nom. Neitzke v. Williams,

(1989)). Thus, his case will be dismissed. 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

(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

(g).

IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect from his institution trust account the $344.13 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

(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 judgment accordingly. IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of the agency where the inmate is confined and emailed to [email protected]. A copy of this order shall be mailed to the Milwaukee County Sheriff and to Dennis Brand, 821 W. State Street, Room 224, Milwaukee, WI 53233.

I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith pursuant to

(a)(3) unless Plaintiff offers bonafide arguments supporting his appeal. Dated at Green Bay, Wisconsin this 28th day of August, 2020. s/ William C. Griesbach William C. Griesbach United States District Judge

This order and the judgment to follow are final. Plaintiff 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 30 days of the entry of judgment. See Fed. R. 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 30-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

(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.

Under certain 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 28 days of the entry of judgment. 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 judgment. The court cannot extend these deadlines. 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.