Thursday, May 26, 2005

15 Years in Prison for falling behind on Child Support


individual and official capacities, Respondents.


United States District Court, W.D. Wisconsin.

May 4, 2005


BARBARA CRABB, Chief Judge, District

This is a proposed civil action for monetary relief brought
under 42 U.S.C. § 1983 . At the time he filed his complaint,
petitioner Robert Roth was confined at the Dodge Correctional
Institution in Waupun, Wisconsin. By letter dated April 18, 2005,
petitioner informed the court that he has been transferred to the
Waupun Correctional Institution in Waupun, Wisconsin. Petitioner
asks for leave to proceed under the in forma pauperis
statute, 28 U.S.C. § 1915 . From the financial affidavit he has
given the court, I conclude that petitioner is unable to prepay
the full fees and costs of starting this lawsuit. Petitioner has
paid the initial partial payment required under § 1915(b)(1).
Along with his complaint,
Page 2
he has filed a motion for appointment of counsel.

In addressing any pro se litigant's complaint, the court must
read the allegations of the complaint generously. See Haines
v. Kerner, 404 U.S. 519 , 521 (1972). However, if the litigant is
a prisoner, the 1996 Prison Litigation Reform Act requires the
court to deny leave to proceed if the prisoner has had three or
more lawsuits or appeals dismissed for lack of legal merit
(except under specific circumstances that do not exist here), or
if the prisoner's complaint is legally frivolous, malicious,
fails to state a claim upon which relief may be granted or asks
for money damages from a defendant who by law cannot be sued for
money damages. This court will not dismiss petitioner's case on
its own motion for lack of administrative exhaustion, but if
respondents believe that petitioner has not exhausted the
remedies available to him as required by § 1997e(a), they may
allege his lack of exhaustion as an affirmative defense and argue
it on a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6).
Massey v. Helman, 196 F.3d 727 (7th Cir. 1999); see also
Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir.

In his complaint, petitioner alleges the following facts.


A. Parties

Petitioner Robert Roth is currently serving a fifteen-year
prison sentence at the
Page 3
Waupun Correctional Institution. At all relevant times,
respondent Eric Lundell was employed as a circuit court judge and
respondent Howard Cameron was a lawyer employed by the State of
Wisconsin as a public defender. At all relevant times, respondent
James Alexander was employed as the Executive Director of the
Wisconsin Judicial Commission, which is responsible for
monitoring the conduct of judges in Wisconsin. Respondent Mary
Ahlstrom was employed as an investigator for the Wisconsin Office
of Lawyer Regulation, which is responsible for monitoring the
conduct of lawyers licensed to practice in Wisconsin.

B. Relevant Events

In March 1999, petitioner was charged with multiple counts of
failure to pay child support, a felony offense in Wisconsin. At
an initial hearing that month, respondent Cameron was appointed
to represent petitioner in connection with the charges.
Petitioner informed respondent Cameron that he suffered from
acute anxiety and demanded a jury trial be held promptly.
Respondent Cameron told petitioner that a trial would not be
necessary because the state wanted only to collect the money he

At a pretrial conference held on April 28, 1999, respondent
Cameron requested that a preliminary hearing be held promptly.
Respondent Lundell set the preliminary hearing for April 30, but
respondent Cameron cancelled the hearing because he disagreed
with the defense petitioner wished to pursue. Cameron told
petitioner to ask the court to appoint
Page 4
another attorney to represent him because he disagreed with the
defense petitioner wished to assert. In June 1999, another
preliminary hearing was held at which the mother of petitioner's
child testified. (The mother is also the child's custodial
parent.) In September 1999, petitioner informed respondents
Cameron and Lundell that he needed psychiatric help for anxiety
attacks and a related emotional breakdown. In October 1999,
respondent Lundell set petitioner's case for trial on December
21-22, 1999.

The day before the trial was to begin, respondent Cameron filed
a motion to withdraw as petitioner's attorney. On the day
petitioner's trial was to begin, the court held a hearing to
discuss the conflicts between petitioner and respondent Cameron.
At the hearing, petitioner alleged that respondent Cameron had
committed misconduct and told respondent Lundell that he did not
trust respondent Cameron. However, respondent Lundell denied the
motion to withdraw. In addition, he told the prosecutor that
petitioner's case "may not be the appropriate case to go to the
mat with," and informed petitioner that a jury would "take about
one minute and you would be found not guilty, if it would even
take one minute, okay?" Respondent Lundell closed the hearing by
setting the next hearing in the case for February 2000.

Desperate to end the delays in his case, petitioner complained
to the Wisconsin Judicial Commission and the Office of Lawyer
Regulation, where he made contact with respondents Alexander and
Ahlstrom. Respondent Alexander told him that respondent
Page 5
Lundell had made a "bad decision" by not holding petitioner's
trial sooner but that his actions did not constitute judicial
misconduct. Respondent Ahlstrom investigated respondent Cameron's
conduct but closed her investigation when petitioner failed to
retain an attorney in connection with the investigation.

In January 2000, respondent Cameron told petitioner that he
could get the charges against him dropped by buying a "deferred
prosecution agreement" for $25.00. Petitioner accepted the
agreement at a February hearing. Some time after the hearing,
respondent Cameron informed petitioner that there were additional
costs associated with the agreement that petitioner had not known
about before he accepted the agreement. At the next hearing,
petitioner withdrew his acceptance of the agreement and told
respondent Lundell that he had not been aware of the additional
charges when he accepted the agreement. Petitioner expressed his
distrust of respondent Cameron again and requested that
respondent Cameron be removed from his case. Respondent Lundell
denied petitioner's request as well as respondent Cameron's
second motion to withdraw.

In March 2000, respondent Cameron requested a psychiatric
evaluation of petitioner. Respondent Lundell granted the request.
The evaluation indicated that petitioner was competent but had
"serious mental health issues." In April 2000, petitioner renewed
his request to have a new attorney appointed to represent him,
explaining to respondent Lundell that respondent Cameron refused
to let his case go to trial despite petitioner's clearly
Page 6
expressed need for a prompt trial. Petitioner stated further that
respondent Cameron was exploiting petitioner's anxiety disorder.
Respondent Lundell denied petitioner's request a third time. Also
in April, petitioner filed a motion to dismiss the charges
because of the state's lack of jurisdiction. (Petitioner does not
indicate the outcome of this motion. Presumably, it was denied.)
Respondent Lundell told the prosecutor assigned to petitioner's
case that he "honestly wouldn't look forward to a jury trial in
this matter." He postponed petitioner's case for another month,
telling petitioner that his decision "sort of infringes on your
right to a speedy trial."

In May 2000, respondent Lundell suggested that defendant
Cameron file a motion to dismiss the charges on the basis of
petitioner's mental state. Lundell set a hearing on the motion
for June and assured petitioner that he would receive a jury
trial. Still desperate to end the case, petitioner submitted
complaints to respondent Alexander and then governor Tommy
Thompson. Neither Alexander nor Thompson responded to
petitioner's complaints.

By June, petitioner was so distraught that his business failed
and he experienced mounting financial hardships. He was unable to
afford psychiatric treatment. That month, respondents Lundell and
Cameron met outside petitioner's presence. At the meeting, it was
agreed that the charges against petitioner would be dismissed
because of a lack of evidence. In addition to the mental anguish
and financial hardship petitioner experienced, his physical
health declined while the charges were pending. Because he could
no longer afford medicine
Page 7
to treat his anxiety attacks, petitioner began using marijuana
and alcohol.

Some time after the charges against petitioner were dismissed,
he attempted to "get some answers" from respondents Lundell and
Cameron. Petitioner expressed himself to respondents using "a
variety of analogies and metaphors" that were misleading and
frightened respondents. They complained to the authorities, who
arrested petitioner immediately. He was placed in jail and
remained there because he could not afford to pay his $100,000.00
bail. Petitioner represented himself at his trial because he
could not afford a lawyer and the court denied his request for
counsel. A court-appointed psychiatrist informed the court that
petitioner was mentally ill but his trial continued. After he was
convicted of threatening respondents Lundell and Cameron, the
court determined that petitioner was eligible to have a lawyer
appointed to represent him. The court appointed counsel for
petitioner and he was sentenced to fifteen years in prison.


I understand petitioner to allege that respondents violated his
Eighth Amendment protection against cruel and unusual punishment
and his Sixth Amendment right to a speedy trial by delaying
resolution of his case for more than a year. In addition, I
understand petitioner to be alleging that respondent Lundell
violated his Sixth Amendment rights to counsel by repeatedly
refusing to allow respondent Cameron to withdraw from
Page 8
petitioner. Petitioner will be denied leave to proceed on each
these claims.

A. Judicial Immunity

Before delving into the substance of petitioner's allegations,
I note that respondent Lundell is alleged to be a state circuit
court judge who postponed petitioner's trial and refused to allow
respondent Cameron to withdraw from representing petitioner. Few
doctrines are more solidly established at common law than the
absolute immunity of judges from liability for their judicial
acts, even when they act maliciously or corruptly. Mireles v.
Waco, 502 U.S. 9 (1991). This immunity is not for the protection
or benefit of a malicious or corrupt judge, but for the benefit
of the public, which has an interest in a judiciary free to
exercise its function without fear of harassment by unsatisfied
litigants. Pierson v. Ray, 386 U.S. 547 , 554 (1967). The scope
of judicial immunity is defined by the functions it protects, not
by the person to whom it attaches. Forrester v. White,
484 U.S. 219 (1988). However, it is unquestioned that immunity applies to
"the paradigmatic judicial acts involved in resolving disputes
between parties who have invoked the jurisdiction of a court."
Id. Because petitioner's claims against respondent Lundell are
based on his dissatisfaction with this respondent's judicial
decisions, I conclude that there is no arguable basis in fact or
law for his claims against respondent Lundell.
Page 9

B. Eighth Amendment

Petitioner contends that the conduct of respondent Cameron
during the pendency of the child support charges inflicted cruel
and unusual punishment on him in violation of the Eighth
Amendment. He argues that respondent Cameron was aware of his
mental disabilities and his need for a prompt resolution to his
case but nonetheless allowed the case to remain pending for more
than a year. In addition, he faults respondents Alexander and
Ahlstrom for failing to intervene on his behalf before the
charges were dismissed. Petitioner will be denied leave to
proceed on this claim because his allegations do not state a
claim under the Eighth Amendment.

The Eighth Amendment's protection against cruel and unusual
punishment applies only to an individual who has been convicted
of a crime. Brown v. Budz, 398 F.3d 904 , 910 (7th Cir. 2005)
("[t]he Eighth Amendment's prohibition on cruel and unusual
punishment gives rise to the constitutional rights of a convicted
state prisoner"); Bailey v. Andrews, 811 F.2d 366 , 373 (7th
Cir. 1987) ("the [E]ighth [A]mendment right to be free from cruel
and unusual punishment is applicable only to sentenced
criminals"). The amendment does not apply to an individual who
has not been convicted of a crime. To put it another way, an
individual who has not been convicted of a crime cannot be
"punished" for the purpose of the Eighth Amendment. In this case,
petitioner contends that the delays in resolving his case
attributable to respondent Cameron caused his business to fail
Page 10
caused him mental and physical anguish. The Eighth Amendment does
not apply to events that occur before an individual is convicted
of a crime. Because petitioner's allegations concern events that
occurred in the pre-trial phase of his case, they are
insufficient to state a claim under the Eighth Amendment.

C. Sixth Amendment

I understand petitioner to allege that respondents Cameron and
Alexander violated his Sixth Amendment right to a speedy trial.
Initially, I note that petitioner confuses his constitutional
right to a speedy trial with his right to a speedy trial under
Wisconsin law. He notes correctly that Wisconsin law requires
that the trial of an individual charged with a felony offense
commence within 90 days of the date on which a party demands it.
Wis. Stat. § 971.10 (2)(a). A fair reading of petitioner's
allegations suggests that he was not brought to trial within 90
days of the date he requested a trial. However, it is
wellestablished that a violation of state law, by itself, is not
a sufficient basis for a claim under 42 U.S.C. § 1983 . J.H. ex
rel. Higgin v. Johnson, 346 F.3d 788 , 793 (7th Cir. 2003);
Tierney v. Vahle, 304 F.3d 734 , 741 (7th Cir. 2002). Section
1983 provides a civil remedy only for violations of rights
conferred by federal law or the federal constitution. Thus, even
a clear violation of petitioner's state law right to a speedy
trial would not support a claim under § 1983. In addition, it is
clear that petitioner's allegations do not give rise to a claim
Page 11
that his Sixth Amendment right to a speedy trial was violated
because petitioner affirmatively states that the failure to pay
child support charges against him were dismissed. Because no
trial ever occurred, and none is necessary given that the charges
were dropped, petitioner cannot prove a violation of his Sixth
Amendment right to a speedy trial.

Petitioner's frustration with the slow pace of the wheels of
justice is evident. However, the Constitution does not provide a
remedy for the anxiety, stress and financial loss that sometimes
accompany criminal charges.



1. Petitioner Robert Roth's request for leave to proceed in
forma pauperis on his claim that respondent Lundell violated
his Sixth Amendment right to counsel is DENIED;

2. Petitioner's request for leave to proceed in forma
pauperis on his claim that respondents Lundell, Cameron,
Alexander and Ahlstrom violated his Eighth Amendment protection
against cruel and unusual punishment DENIED;

3. Petitioner's request for leave to proceed in forma
pauperis on his claim that respondents Cameron and Alexander
violated his Sixth Amendment right to a speedy trial is DENIED;

4. Petitioner's motion for appointment of counsel is DENIED as
Page 12

5. This case is DISMISSED with prejudice for petitioner's
failure to state claim upon which relief may be granted;

6. The unpaid balance of petitioner's filing fee is $239.94;
this amount is to be paid in monthly payments according to
28 U.S.C. § 1915 (b)(2);

7. A strike will be recorded against petitioner pursuant to §
1915(g); and

8. The clerk of court is directed to close the file.
Page 1

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