Ricardo Glover v. Jonathon Dickey
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. We warn Glover that using civil-rights actions as a vehicle to bypass our previous denials of his post-conviction petitions will result in sanctions. In re City of Chicago, 500 F.3d 582, 585 86 (7th Cir. 2007), and Support Sys. Int l, Inc. v. Mack, 45 F.3d 185, 186 87 (7th Cir. 1995). Diane P. Wood, Chief Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge Sent Certified Mail. Receipt Number: 7012 3460 0000 9173 1572. [6776145-1] [6776145] [15-3145]
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NONPRECEDENTIAL DISPOSITION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 July 22, 2016*
Decided August 17, 2016
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3145
RICARDO GLOVER,
Plaintiff‐Appellant,
v.
JONATHON DICKEY,
Defendant‐Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 14‐C‐0087
Lynn Adelman,
Judge.
O R D E R
Ricardo Glover, a Wisconsin inmate housed at Oshkosh Correctional Institution,
filed a suit under 42 U.S.C. § 1983 claiming that Jonathan Dickey, a facility psychologist,
denied him equal protection by refusing him a spot in a treatment program for sex
offenders. Glover, describing himself as a “class of one,” alleges that Dickey’s decision
lacked a rational basis. The district court allowed this claim to proceed through
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
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discovery before dismissing it on Dickey’s motion for summary judgment. We affirm the
dismissal.
Glover has an extensive litigation history relating to his state convictions. In 1990
he entered guilty pleas to first‐degree sexual assault and false imprisonment, WIS. STAT.
§§ 940,225(1), 940.30, and a plea of no contest to attempted first‐degree intentional
homicide, id. §§ 940.01, 939.32. He was sentenced to 45 years’ imprisonment. In 1997 we
affirmed the denial of his petition under 28 U.S.C. § 2254 for a writ of habeas corpus.
Glover v. McCaughtry, 132 F.3d 36 (7th Cir. 1997) (unpublished disposition). Since then
Glover has tried to attack his convictions collaterally at least nine times. See Glover v.
McCaughtry, No. 01‐1312 (7th Cir. May 7, 2001) (summarily affirming dismissal, for lack
of jurisdiction, of Glover’s second § 2254 petition); Glover v. McCaughtry, No. 01‐1924
(7th Cir. May 7, 2001) (dismissing without prejudice Glover’s first application under
28 U.S.C. § 2244(b) for leave to file successive § 2254 petition); Glover v. Litscher,
No. 01‐2492 (7th Cir. Feb. 8, 2002) (denying application for certificate of appealability
from denial of third § 2254 petition); Glover v. Litscher, No. 01‐2886 (7th Cir. July 30, 2001)
(denying application under § 2244(b) to file successive § 2254 petition); Glover v.
McCaughtry, No. 01‐3664 (7th Cir. Oct. 30, 2001) (denying § 2244(b) application for
second time); Glover v. Smith, No. 07‐2523 (7th Cir. Oct. 22, 2007) (denying application for
certificate of appealability from order refusing to reconsider denial of initial § 2254
petition). Glover’s attacks primarily involve contentions that he is innocent and that the
state court lacked “subject‐matter jurisdiction” over his criminal case.
In 2009, after Glover again had applied to this court under § 2244(b) for leave to
file a successive § 2254 petition, we warned him that further efforts to overturn his state
convictions would invite sanctions. In re Glover, No. 09‐1545 (7th Cir. Mar. 23, 2009)
(construing “petition for writ of mandamus” as application to file successive § 2254
petition). Glover then filed a petition for a writ of certiorari, and the Supreme Court
dismissed that petition with the explanation that Glover had “repeatedly abused” the
judicial process and barred him from filing “any further petitions in noncriminal
matters” in that Court without prepaying the docketing fee. Glover v. Thurmer,
No. 09‐5383 (U.S. Oct. 16, 2009). Undeterred, Glover moved to recall the mandate from
our 1997 affirmance of the denial of his petition for a writ of habeas corpus. We fined
Glover $100 for filing that frivolous submission and imposed a filing bar until the fine
was paid. Glover v. Smith, No. 95‐2304 (7th Cir. Dec. 12, 2011). Glover paid the fine eight
months later and promptly filed another application under § 2244(b). Glover v. Smith, No.
12‐3450 (7th Cir. Oct. 25, 2012) (denying application for certificate of appealability).
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Now in this civil‐rights action, Glover asserts that Dickey violated his right to
equal protection under the Fourteenth Amendment by refusing, without a rational
reason, to enroll him in a treatment program for sex offenders. Glover attached to his
complaint a letter that he wrote to Dickey requesting placement in the program. He also
attached a packet of information that he had sent to Dickey about his criminal case. That
packet contains trial transcripts, victim statements, and other evidentiary materials
which, Glover asserts, demonstrate that he’s innocent of all charges. Dickey’s response to
Glover’s letter, which also is attached to the complaint, explains that inmates who are
closest to completing their sentences are given priority for placement in the program and
that Glover’s scheduled release in 2019 was too far away. In his letter Dickey added that
he also takes into consideration whether the inmate had received the state Parole
Commission’s endorsement to participate in the program. Glover had gotten the
Commission’s endorsement in 2000, but Dickey explained in his letter that he would
prefer to have a recent endorsement, along with a statement from Glover saying that he
no longer disputed his conviction for sexual assault. This exchange of letters, Glover
asserts in his complaint, proves that Dickey singled him out for unfavorable treatment.
The district court screened Glover’s complaint, see 28 U.S.C. § 1915A, and allowed
him to proceed on a “class of one” equal‐protection claim. As soon as he got past
screening, however, Glover immediately filed a motion asking the court to
independently evaluate the lawfulness of his custody. Glover’s motion repeats the same
contention about the Wisconsin trial court lacking subject‐matter jurisdiction. The
district court denied this motion and, after discovery, granted summary judgment for
Dickey. A jury could not reasonably find that Dickey had run afoul of the Equal
Protection Clause, the court reasoned, because placement in the treatment program is
discretionary and Dickey had legitimate reasons to deny Glover a spot.
On appeal Glover challenges the grant of summary judgment for Dickey and also
several of the district court’s rulings on evidentiary and other matters. To the extent that
Dickey challenges the district court’s denial of his motion related to his underlying state
convictions, Glover cannot use § 1983 as a means of challenging his convictions. Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973); Simpson v. Nickel, 450 F.3d 303, 307 (7th Cir. 2006).
Moreover, we agree with the district court that Dickey is entitled to judgment in
his favor. “A class‐of‐one plaintiff must plead and prove that he was ‘intentionally
treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.’” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 685–86 (7th Cir.
2013) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)); see Vill. of
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Willowbrook v. Olech, 528 U.S. 562, 564 (2000). If the government official provides a
rational basis for the challenged action “that will be the end of the matter—animus or
no.” Fares Pawn, LLC v. Ind. Dep’t of Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014); see Miller
v. City of Monona, 784 F.3d 1113, 1121 (7th Cir. 2015). Here, Dickey has provided rational
reasons for his decision not to admit Glover into the sex‐offender treatment program.
Preference for placement in the program went to inmates with impending release dates,
and Glover was too far away from his mandatory release date—over seven years—to be
considered for a spot in the program. He also lacked a recent endorsement from the
Parole Commission, which suggests that an earlier release on parole was not anticipated.
We have reviewed the remainder of Gloverʹs arguments and none has merit. The
judgment of the district court is AFFIRMED. We warn Glover that using civil‐rights
actions as a vehicle to bypass our previous denials of his post‐conviction petitions will
result in sanctions. In re City of Chicago, 500 F.3d 582, 585–86 (7th Cir. 2007), and Support
Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186–87 (7th Cir. 1995).
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