IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DANIEL E. WILKINS, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:13-CV-278

)

LISBETH A. BORGMANN, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the amended complaint filed

pursuant to 42 U.S.C. § 1983 by Daniel E. Wilkins, a pro se

prisoner, on May 23, 2013. For the reasons set forth below, this

case is DISMISSED pursuant to 28 U.S.C. § 1915A. 

BACKGROUND

Daniel E. Wilkins, a pro se prisoner, alleges that Lisbeth A.

Borgmann, the Allen County Clerk of Court, (or some other unknown

employee(s) of the clerk’s office) backdated filings he sent to the

Allen Superior Court and did not present them to the judge for

review during his state post-conviction relief proceeding under

cause number 02D04-1004-PC-27. In support of his claim he presents

several documents including a Chronological Case Summary (CCS)

printed on February 2, 2013, (DE 6-1 at 9-12) and another one

printed on March 8, 2013, (DE 6-1 at 14-16). The March CCS printout

includes the missing filings which Wilkins speculates were withheld

and backdated. 

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DISCUSSION

“A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and

citations omitted). However, pursuant to 28 U.S.C. § 1915A, the

court must review the merits of a prisoner complaint and dismiss it

if the action is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against

a defendant who is immune from such relief. A complaint must

contain sufficient factual matter to “state a claim that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the pleaded

factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). “[A] plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action

will not do. Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote

omitted). “[W]here the well-pleaded facts do not permit the court

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to infer more than the mere possibility of misconduct, the

complaint has alleged — but it has not shown — that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (quotation marks and

brackets omitted). Thus, “a plaintiff must do better than putting

a few words on paper that, in the hands of an imaginative reader,

might suggest that something has happened to her that might be

redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403

(7th Cir. 2010) (emphasis in original). “In order to state a claim

under § 1983 a plaintiff must allege: (1) that defendants deprived

him of a federal constitutional right; and (2) that the defendants

acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670

(7th Cir. 2006). 

Wilkins has concluded that his filings in the Allen Superior

Court were backdated, but he has not pled any facts which plausibly

support that conclusion. It appears that he believes that they were

backdated because they were not docketed the same day that they

were file stamped. This is not a reasonable inference. The March

CCS printout shows that the “missing” filings were docketed on

March 1, 2013. However, it also shows that they were received and

file stamped on December 28, 2013,1

 January 9, 2013, and January

30, 2013. Wilkins has not pled any facts from which it can be

plausibly inferred that the clerk backdated any of these entries.

1

The December 28, 2013, date is clearly a scriveners error because that

date has not yet occurred. It seems likely that the correct date was December 28,

2012. Given that the CCS entry was made in 2013, erroneously entering 2013

instead of 2012 would be an common typo. 

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Indeed, the March CCS printout shows that many of the judge’s

orders were not entered until a day or two (in one instance three)

days after they were signed. See (DE 6-1 at 14-15).2 This is not an

indication that the orders were backdated. Rather, the facts

presented merely show that it is not the routine practice of the

Allen County Clerk to contemporaneously docket filings when they

are received by the office. That does not state a claim. 

Wilkins has also concluded that his filings were withheld from

the judge, but he has not pled any facts which plausibly support

that conclusion. Though the February CCS printout shows that the

case was dismissed before his filings were docketed, the March CCS

printout shows that the “missing” filings were received and file

stamped before the order of dismissal. It appears that Wilkins

surmises that the judge did not see them because they were not

docketed before the case was dismissed. This is mere speculation.

Though it is not the practice in this Court for a judge to

commonly review file stamped documents before they are docketed, a

review of the March CCS printout shows that this occurred four

other times in Wilkins’ Post-Conviction Relief proceeding. (DE 6-1

2

 The order signed May 7, 2012, was docketed two days later on May 9, 2012.

The order signed May 30, 2012, was docketed one day later on May 31, 2012. The

order signed June 18, 2012, was docketed two days later on June 20, 2012. The

order signed October 29, 2012, was docketed two days later on October 31, 2012.

The order signed February 8, 2013, was docketed three days later on February 11,

2013.

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at 14-15).3 This pattern of docketing motions after they were ruled

on occurred two other times in this case. See Wilkins v. State,

02D04-1004-PC-27 (Allen Superior Court filed April 7, 2010),

official Indiana trial court docket sheet available at

http://mycase.in.gov/.4 Clearly the State court judge saw all of

those filings even though they had not been docketed. If the judge

had not seen those motions, the judge could not have ruled on them.

The CCS shows that those filings cited above had been received and

file stamped days and weeks before they were docketed. In one

instance it was nearly a month before the file stamped document was

docketed. Therefore, based on the facts presented by Wilkins, it is

not reasonable to infer that anyone in the office of the Allen

County Clerk prevented the judge from seeing his filings. 

Nevertheless, if the judge did not see (or refused to

consider) all of the filings before denying Wilkins’ postconviction relief petition, Wilkins is not without a remedy.

Wilkins can (and it appears that he did) file in the State trial

court a motion to correct error. In that motion he could have

alerted the State judge of his concerns and asked that the court

3

 On May 7, 2012, that court issued an order ruling on a motion that was

not docketed until May 9, 2012. On May 30, 2012, that court issued an order

ruling on a motion that was not docketed until May 31, 2012. On June 18, 2012,

that court issued an order ruling on a motion that was not docketed until June

20, 2012. Then on October 29, 2012, that court issued an order ruling on two

motions that were not docketed until October 31, 2012. 

4 On April 2, 2013, the State trial court issued an order ruling on two

filings that were not docketed until April 3, 2013.

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reconsider the post-conviction relief petition in light of all of

his filings. Additionally, Wilkins can raise this issue on appeal.

However, what he cannot do is sue the clerk based solely on his

speculation that someone improperly handled his filings. 

CONCLUSION

For the reasons set forth above, this case is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: August 8, 2013 /s/RUDY LOZANO, Judge

United State District Court

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