Horton v. Richards

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

TONY HORTON,

Plaintiff,

v. Case No. 25-CV-314-JPS

JONATHAN RICHARDS, SAMUEL

E. SIMPSON, TYLER A. JOCHMAN, ORDER

LLC, COMMISSIONER PHILLIPS,

MILWAUKEE COUNTY, ADRIAN

HARRIS, MILWAUKEE POLICE

DEPARTMENT, and TYLER A.

JOCHMAN LAW, LLC,

Defendants.

1. INTRODUCTION

Plaintiff Tony Horton (“Plaintiff”), an inmate confined at the Racine

Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983

alleging that Defendants violated his constitutional rights. ECF No. 1. This

Order resolves Plaintiff’s motion for leave to proceed without prepaying

the filing fee, ECF No. 2, and screens his complaint. Plaintiff filed numerous

other motions, ECF Nos. 12, 17, 19, 21, and 22, which will all be denied as

moot because the Court finds that Plaintiff’s case may not proceed at this

time.

2. 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 March 6, 2025, the Court assessed Plaintiff an initial partial filing

fee of $1.79. ECF No. 5. Plaintiff paid that fee on April 21, 2025. 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.

3. SCREENING THE COMPLAINT

3.1 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)).

3.2 Plaintiff’s Allegations1

Plaintiff’s allegations relate to his criminal prosecution in Milwaukee

County, Wisconsin for reckless injury with use of a deadly weapon. ECF

No. 1 at 1 (referencing “CF-387”); ECF No. 1-1 at 1 (referencing “Case No[.]

24-cf-387); State of Wisconsin v. Tony Horton, Milwaukee Cnty. Cir. Ct. Case

No. 2024CF000387, available at

1Plaintiff submitted a complaint with exhibits, an “opening statement,” and

an “argument” attached. ECF Nos. 1, 1-1, 1-2, 1-3. To the extent that Plaintiff’s

allegations in the attachments expand on the allegations in the complaint, the

Court has considered them in crafting the below summary. See Brownmark Films,

LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing Wright v. Assoc. Ins.

Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)).

After filing his complaint, Plaintiff submitted several letters that relate to

his allegations and, in some instances, attempt to expand on his claims. ECF No. 6

(letter regarding double jeopardy and Sixth Amendment issues); ECF No. 7 (letter

regarding alleged constitutional violations and asking the Court to review

transcripts and evidence in that case); ECF No. 10 (requesting to add damages).

These filings are not considered part of the complaint, and the Court has

disregarded them for purposes of screening. Brown v. Uhl, No. 22-CV-131-JPS, 2022

WL 3043039, at *1 (E.D. Wis. Aug. 2, 2022) (“Complaints may not be amended in a

piecemeal fashion . . . .” (citing Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d

https://wcca.wicourts.gov/caseDetail.html?caseNo=2024CF000387&county

No=40&index=0&mode=details (last visited June 4, 2025) (hereinafter the

“State Case”).2 In that case, Plaintiff was found guilty at a jury trial. State

Case, May 7, 2024 docket entry.

Defendant Jonathan Richards (“Judge Richards”) was the presiding

judge in the State Case, and Defendant “Commissioner Phillips” appears to

refer to Barry Phillips, a court commissioner involved in the State Case. See

generally State Case docket. Defendant Samuel E. Simpson (“Attorney

Simpson”) was the prosecuting attorney. Id. Defendant Adrian Harris

(“Detective Harris”) is a detective with the Milwaukee Police Department

(“MPD”) who testified during Plaintiff’s trial. Id., May 7, 2024 docket entry.

Tyler Jochman (“Attorney Jochman”) was Plaintiff’s state-appointed

defense attorney in the State Case. Id., Feb. 21, 2024 docket entry. Plaintiff

attempts to name Attorney Jochman’s business entity, rather than Jochman

himself, as a defendant. ECF No. 1 at 1 (naming “Tyler A. Jochman Law”

and “Tyler A. Jochman, LLC” as Defendants); see also “Jochman Law, LLC,”

Search Corporate Records, STATE OF WIS. DEP’T OF FIN. INST.,

[https://perma.cc/SZX3-XA52] (last visited June 4, 2025). But Plaintiff’s

allegations pertain to Attorney Jochman, the person, and his performance

as counsel. See generally ECF No. 1.

Plaintiff alleges that there were several constitutional errors in his

prosecution in the State Case. He alleges that there was a significant delay

in holding his preliminary hearing, violating his right to due process. ECF

No. 1 at 2–3. He also says that Attorney Jochman did not object to delaying

the preliminary hearing, which the Court construes as an allegation that

2The Court may take judicial notice of public records, including state court

records and business incorporation records. See Henson v. CSC Credit Servs., 29 F.3d

280, 284 (7th Cir. 1994).

Attorney Jochman was ineffective in violation of Plaintiff’s Sixth

Amendment right to effective assistance of counsel. Id. at 2; see also ECF No.

1-1 at 6. He also notes in passing that he was “denied counsel at [a]

preliminary hearing.” ECF No. 1-1 at 10.

He suggests that “the district attorney,” presumably Attorney

Simpson, told Judge Richards that Plaintiff bail jumped in 2022, which was

not true because Plaintiff was incarcerated at this time. ECF No. 1 at 3; ECF

No. 1-1 at 6. Again, Plaintiff says that Attorney Jochman did not object to

this allegedly false assertion by Attorney Simpson. ECF No. 1 at 3. Plaintiff

alleges both prosecutorial misconduct “for arguing facts not in evidence”

and ineffective assistance of counsel for not objecting. ECF No. 1-1 at 6.

Plaintiff also says that Detective Harris violated Brady v. Maryland,

373 U.S. 83 (1963) (hereinafter “Brady”) by failing to turn over Plaintiff’s

DNA test and that “the commonwea[l]th,” i.e., Attorney Simpson, violated

Brady by “not testing the two guns for DNA or . . . not turning over those

tests.” ECF No. 1 at 3; ECF No. 1-1 at 9. He also suggests that Judge

Richards, Attorney Simpson, and Attorney Jochman “withheld video

footage to not show [H]orton’s innocence” or failed to show video footage

to the jury. ECF No. 1-1 at 13, 15.

He also states that two witnesses, “Ms. Brooks and Mr. Williams,”

gave false statements at trial. ECF No. 1 at 4; ECF No. 1-1 at 1–2 and 11–12.

Specifically, he says that Ms. Brooks “told the police [that] she [had] seen

everything that [H]orton did,” which was a lie. ECF No. 1-1 at 4. Plaintiff

was charged with stabbing Mr. Williams; Plaintiff apparently argued or

wanted to persuade the jury that he was acting in self-defense. Id. at 24–25;

ECF No. 1-2 at 1–3 (describing incident). Plaintiff says that Mr. Williams

“told the jury that he didn’t hit [Plaintiff],” but this was a lie because but

there was a “cut over [Plaintiff’s] face and head,” which Plaintiff argues is

evidenced by body camera footage. ECF No. 1-1 at 9.

He says that Judge Richards knew that Ms. Brooks and Mr. Williams

gave false statements but permitted the jury to hear their testimony

anyways, and that Judge Richards therefore should have been disqualified

as unable to be impartial. Id. at 2, 12. Finally, Plaintiff also states that Judge

Richards improperly denied an evidentiary motion, though it is not clear to

what evidence this purported motion pertained. Id. at 3, 5.

For relief, Plaintiff asks that the State Case “be vacated” and that he

“be released from prison now.” ECF No. 1 at 4. He asks that witnesses who

gave allegedly false statements be arrested and charged with perjury. Id. He

further asks that “all court cost[s] . . . be paid by Milwaukee County, and

wage[s] paid for [with] interest,” that his “fine” be “vacated” and paid back

to him with interest, and that any money he spent while incarcerated

pursuant to the State Case be refunded to him with interest. Id. Finally, he

seeks $10 million in damages. Id. at 3.

3.3 Analysis

The Court will dismiss Plaintiff’s complaint, without prejudice,

because it is barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). A

petition for a writ of habeas corpus under 28 U.S.C. § 2254 “is the exclusive

remedy for a state prisoner who challenges the fact or duration of his

confinement and seeks immediate or speedier release.” Id. at 481 (citing

Preiser v. Rodriguez, 411 U.S. 475, 488–90 (1973)). As explained in Heck, a

plaintiff is precluded from bringing claims for damages if a judgment in

favor of the plaintiff would “necessarily imply the invalidity of his [state

criminal] conviction or sentence.” Id. at 487. This bar applies unless the

underlying conviction or sentence has been “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court's issuance of a writ of habeas corpus.” Id. at 486–87.

Here, Plaintiff alleges a number of constitutional errors in the State

Case and argues that these errors require vacating his conviction and

releasing him from incarceration; he further seeks damages and other

equitable relief. Since nothing in Plaintiff's pleadings or the publicly

available information suggests that his conviction has been invalidated or

called into question, his challenge to the State Case proceedings is Heck-

barred.

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, 519–20 (7th Cir. 2015) (citing Barry Aviation

Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004)).

Because no amendment can overcome Plaintiff’s Heck issue, it would be

futile to allow him to amend the complaint. The Court must dismiss the

case. The dismissal will operate without prejudice because Plaintiff may

attempt to reassert these claims if his conviction is invalidated. Johnson v.

Rogers, 944 F.3d 966, 968 (7th Cir. 2019) (“A suit barred by the doctrine of

Heck is premature and must be dismissed without prejudice, because Heck

holds that the claim does not accrue until the conviction has been set aside.”

(citing Morgan v. Schott, 914 F.3d 1115, 1122 (7th Cir. 2019) and Moore v.

Burge, 771 F.3d 444, 446 (7th Cir. 2014))).

The Court also notes that, even if he could proceed at this juncture,

many of Plaintiff’s claims would likely be barred by immunity doctrines.

“Judges are not liable in civil actions for their judicial acts unless they have

acted in the clear absence of all jurisdiction.” John v. Barron, 897 F.2d 1387,

1391 (7th Cir. 1990) (citing Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)

Dellenbach v. Letsinger, 889 F.2d 755, 758 (7th Cir. 1989); and Eades v.

Sterlinske, 810 F.2d 723, 725 (7th Cir. 1987)). Judge Richards is likely

protected by judicial immunity. The Court does not discern any particular

assertions of wrongdoing against Commissioner Phillips among Plaintiff’s

allegations, so any claim against him would likely fail for lack of personal

involvement in addition to judicial immunity. Del Raine v. Williford, 32 F.3d

1024, 1047 (7th Cir. 1994) (“[T]here must be individual participation and

involvement by a defendant . . . .” (collecting cases)); Reese v. Sturm, No. 24-

CV-687-PP, 2024 WL 5238273, at *4 (E.D. Wis. Dec. 26, 2024) (noting that

“[c]ourt commissioners . . . are immune from suit” under the doctrine of

judicial immunity and citing Griffin v. State of Wisconsin, No. 07-1653, 2007

WL 2913892, at *3 (7th Cir. Oct. 5, 2007) and Crenshaw v. Baynerd, 180 F.3d

866, 868 (7th Cir. 1999))).

Likewise, prosecutors such as Attorney Simpson are generally

entitled to immunity for prosecutorial functions. Fields v. Wharrie, 672 F.3d

505, 510 (7th Cir. 2012) (“A prosecutor is absolutely immune from suit for

all actions and decisions undertaken in furtherance of his prosecutorial

duties.” (citing Imbler v. Pachtman, 424 U.S. 409, 410 (1976)). And Attorney

Jochman is immune from civil rights claims related to his performance as

counsel as well. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“With

respect to Dodson’s § 1983 claims against Shepard, we decide only that a

public defender does not act under color of state law when performing a

lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.” (footnote omitted)).

Finally, even if Plaintiff could proceed at this time, he would face

several additional impediments. Plaintiff has not made any allegations to

show how Attorney Jochman’s business entity—as opposed to Attorney

Jochman, the person—acted under color of state law to violate Plaintiff’s

civil rights. Further, Plaintiff names Milwaukee County as a Defendant but

does not include any allegations that would support a claim of municipal

liability against this entity. See Hall v. City of Chicago, 953 F.3d 945, 950 (7th

Cir. 2020) (plaintiff must plead “an action pursuant to a municipal policy”

(citing Bd. of Commr’s of Bryan Cnty. v. Brown, 520 U.S. 397, 404–07 (1997))).

But MPD is not a suable entity under § 1983. Green v. Chvala, 567 F. App’x

458, 461 (7th Cir. 2014) (citing Whiting v. Marathon Cnty. Sheriff’s Dep’t, 382

F.3d 700, 704 (7th Cir. 2004)); Houston v. Shawano Cnty. Police Dep’t, No. 19-

CV-225-JPS-JPS, 2019 WL 1327128, at *2 (E.D. Wis. Mar. 25, 2019) (citing

Andreola v. Wisconsin, 211 F. App’x 495, 497 (7th Cir. 2006) and 42 U.S.C.

§ 1983)).

4. ADDITIONAL MOTIONS AND REQUESTS

Plaintiff additionally filed a motion to compel, ECF No. 12; a motion

seeking to stop the state court from collecting fines, ECF No. 17; a motion

seeking to review evidence and obtain transcripts from the State Case, ECF

No. 21; and motions for appointment of counsel, ECF Nos. 19 and 22.

Because Plaintiff’s case will be dismissed, all of these motions will be denied

as moot. Plaintiff also filed letters asking the Court to send him back copies

of his submissions in this case. ECF Nos. 16 and 20. Plaintiff indicates,

specifically, that his complaint in this case “was the only cop[y]” he had.

ECF No. 16 at 1. The Court will direct the Clerk of Court to enclose a copy

of Plaintiff’s complaint and attachments, ECF Nos. 1, 1-1, 1-2, and 1-3, with

this Order. In the future, Plaintiff should retain copies of his own records.

Accordingly,

IT IS ORDERED that Plaintiff Tony Horton’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 Plaintiff Tony Horton’s motions,

ECF Nos. 12, 17, 19, 21, and 22, be and the same are hereby DENIED as

moot;

IT IS FURTHER ORDERED that this case be and the same is hereby

DISMISSED without prejudice because it is Heck-barred;

IT IS FURTHER ORDERED that the agency having custody of

Plaintiff shall collect from his institution trust account the $348.21 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;

IT IS FURTHER ORDERED that the Clerk of Court shall mail

Plaintiff a copy of his complaint and attachments thereto, ECF Nos. 1, 1-1,

1-2, and 1-3, along with this Order; 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 4th day of June, 2025.

BY THE COURT:

□□ V2

AR

J. 2 Stall eller

U.S. District Judge

Page 10 of 11

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 $605.00 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 a “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 serious 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.