Craig Miller v. Kenneth Morgan , 467 F. App'x 512 ( 2012 )


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  •                             NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted February 15, 2012*
    Decided March 14, 2012
    Before
    MICHAEL S. KANNE, Circuit Judge
    ANN CLAIRE WILLIAMS, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 11-2081
    CRAIG LEE MILLER,                                   Appeal from the United States District
    Plaintiff-Appellant,                           Court for the Eastern District of Wisconsin.
    v.                                           No. 11-C-309
    KENNETH MORGAN,                                     William C. Griesbach,
    Defendant-Appellee.                             Judge.
    ORDER
    Back in 2002, Craig Miller, a Wisconsin inmate, petitioned for a writ of habeas corpus
    under 
    28 U.S.C. § 2254
    . His prison warden at the time, Kenneth Morgan, was the named
    respondent. Miller contended that his convictions for battery, false imprisonment, and other
    crimes violate his constitutional rights. The state moved to dismiss the petition as untimely,
    see 
    id.
     § 2244(d)(1), and the district court granted the motion. Miller’s request for a certificate
    *
    The defendant was not served with process in the district court and is not
    participating in this appeal. After examining the appellant’s brief and the record, we have
    concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
    appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
    No. 11-2081                                                                              Page 2
    of appealability was denied. Miller then challenged the dismissal of his petition in a series
    of frivolous motions and a federal civil-rights action against the State of Wisconsin. See
    Miller v. Wisconsin, 308 F. App’x 1, 2 (7th Cir. 2008); Miller v. Morgan, No. 02-cv-0096-bbc,
    
    2009 WL 426233
    , at *1 (W.D. Wis. Feb. 19, 2009); Miller v. Morgan, No. 02-cv-0096-jcs, 
    2008 WL 4300925
    , at *1 (W.D. Wis. Sept. 17, 2008); Miller v. Morgan, 04-C-1137, 
    2005 WL 1364507
    ,
    at *3 (E.D. Wis. June 7, 2005). For his litigiousness Miller “struck out” under the Prison
    Litigation Reform Act, see 
    28 U.S.C. § 1915
    (g). Miller, 308 F. App’x at 2.
    In March 2011, Miller tried again. He initiated this action under 
    42 U.S.C. § 1983
    claiming that Morgan, as the named respondent in his § 2254 petition, violated his
    constitutional rights back in 2002 when the state’s lawyers moved to dismiss that petition as
    untimely instead of addressing the merits. Miller seeks $8 billion in damages. The district
    court dismissed the lawsuit at screening as frivolous, see 28 U.S.C. § 1915A, explaining that
    an appeal, not a federal civil-rights lawsuit, is the means of challenging an adverse decision
    in a § 2254 matter. The court added that untimeliness is a valid ground for dismissing a
    petition for a writ of habeas corpus.
    On appeal Miller challenges the dismissal of his lawsuit. To have a claim for
    damages under § 1983, Miller must allege that Morgan, the only named defendant, was
    “personally responsible” for the alleged deprivation of his constitutional rights. See Johnson
    v. Snyder, 
    444 F.3d 579
    , 583 (7th Cir. 2006); Palmer v. Marion County, 
    327 F.3d 588
    , 593–94 (7th
    Cir. 2003). He does not. Morgan was his custodian, not an active participant in the § 2254
    litigation. Thus, even if it was conceivable that a motion to dismiss Miller’s petition on the
    grounds of untimeliness could give rise to a § 1983 claim, Miller’s lawsuit fails to state a
    claim.
    The judgment is AFFIRMED. Miller is ORDERED to show cause why he should not
    be sanctioned for filing a frivolous appeal. See Fed. R. App. P. 38. The response is due within
    14 days of the date of this order.
    

Document Info

Docket Number: 11-2081

Citation Numbers: 467 F. App'x 512

Filed Date: 3/14/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023