Craig L. Miller v. State of Wisconsin

* After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and records. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 11, 2008 *
Decided December 15, 2008
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
Nos. 08‐1711 & 08‐2821
CRAIG L. MILLER,
Plaintiff‐Appellant,
v.
STATE OF WISCONSIN,
Defendant‐Appellee.
Appeals from the United States District
Court for the Western District of Wisconsin.
No. 07 C 567
Barbara B. Crabb,
Chief Judge.
O R D E R
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 08‐1711 & 08‐2821 Page 2
Craig Miller, a Wisconsin inmate, claims that the state owes him $6.9 billion and an
apology for violating his civil rights. On the state’s motion, the district court dismissed the
complaint with prejudice. The court reasoned that the State of Wisconsin—the only
defendant—cannot be sued for money damages under the civil‐rights statutes. See Lapides
v. Bd. of Regents of Univ. of Ga., 535 U.S. 613, 617 (2002); Keri v. Bd. of Trs. of Purdue Univ., 458
F.3d 620, 641 (7th Cir. 2006). What’s more, the court explained, the suit would be barred
under Heck v. Humphrey, 512 U.S. 477, 486‐87 (1994), because it challenges the propriety of
Miller’s criminal conviction. Miller appeals both the dismissal and a later order denying
his motion to vacate under Federal Rule of Civil Procedure 60(b).
Miller argues in both appeals that the district court should have dismissed his
complaint without prejudice, not with prejudice. Miller reasons that because he already had
litigated and lost a postconviction challenge under 28 U.S.C. § 2254, the court was obligated
to recharacterize this suit as an unauthorized “second or successive” petition and dismiss it
for lack of subject‐matter jurisdiction. See 28 U.S.C. § 2244(b); Pavlovsky v. VanNatta, 431
F.3d 1063, 1064 (7th Cir. 2005). In the alternative, says Miller, the district court was
obligated to screen the complaint prior to service, see 28 U.S.C. § 1915A, and dismiss it at
that state without prejudice.
These appeals, like Miller’s complaint and his motion to vacate, are frivolous.
Miller’s arguments, if accepted, would turn on their heads rules designed to prevent
prisoners from flooding the federal courts with frivolous litigation. The district court was
not obligated to recharacterize Miller’s complaint as a petition for habeas corpus. See Poe v.
United States, 468 F.3d 473, 476 (7th Cir. 2006); Melton v. United States, 359 F.3d 855, 858 (7th
Cir. 2004). And while the court should have screened Miller’s complaint and dismissed it
immediately upon receipt, that omission was harmless from Miller’s perspective because a
dismissal for failure to state a claim, at any stage, should be with prejudice. See Gladney v.
Pendleton Corr. Fac., 302 F.3d 773, 775 (7th Cir. 2002); Paganis v. Blonstein, 3 F.3d 1067, 1071
(7th Cir. 1993).
Miller’s remaining arguments require no discussion. Miller has incurred “strikes”
for his complaint, his Rule 60(b) motion, and both of these appeals. He already had at least
one strike, Miller v. Morgan, 2005 WL 1364507, at *3 (W.D. Wisc. 2005), so now with four
more he has “struck out.” See 28 U.S.C. § 1915(g).
The judgments in both cases are AFFIRMED.

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