Michael J Belleau v Kevin C Greene

Filing 24

ORDER denying 17 Motion to Dismiss, signed by Chief Judge William C Griesbach on 05/13/2013. Belleau is granted an extension of 120 days in which to properly serve the defendant. In addition, if Belleau wishes to have an attorney represent him and cannot obtain an attorney on his own, he should file a motion for appointment of counsel. See Order for full detail. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL J. BELLEAU,
Plaintiff,
v.

Case No. 12-C-1198

KEVIN C. GREENE,
Defendant.

ORDER DENYING MOTION TO DISMISS

Plaintiff Michael J. Belleau alleges in what he has entitled “Civil Liberties Complaint for
Summary Judgment that Brown County Assistant District Attorney (ADA) Kevin C. Greene
violated his constitutional rights by ordering that he be fitted with a Global Positioning System
(GPS) tracking device upon his discharge from commitment under Chapter 980 of the Wisconsin
Statutes. Although ADA Greene is not named as a defendant in the caption of Belleau’s complaint
(no one is), it is his alleged conduct that forms the basis of Belleau’s complaint, and so the court has
construed the complaint to name him. Upon more careful review, it seems likely that Belleau’s real
dispute is with the State of Wisconsin, which ADA Greene represents, rather than ADA Greene
personally. No doubt that is one of a number of issues that must be sorted out if Belleau’s lawsuit
is to continue. At least at this point, the court is convinced that it should continue.
Belleau’s complaint, liberally construed, challenges the authority of the Wisconsin
Department of Corrections (DOC) under the United States Constitution to compel him to wear a
GPS tracking device and submit to continued restrictions on his freedom of movement for the rest
of his life, even though he has been discharged from his earlier commitment under Chapter 980.

Under section 301.48 of the Wisconsin Statutes, DOC is required to maintain lifetime tracking of
persons previously committed to the custody of the Department of Health Services as sexually
violent persons under Chapter 980 who are no longer in custody, along with others who have
committed specified sex offenses against a child. Wis. Stat. § 301.48(2). The statute requires DOC
to “implement a continuing global positioning tracking system to electronically monitor the
whereabouts of persons who are subject to the section.” § 301.48(3)(a). For each person subject
to the lifetime tracking requirement, DOC is to create individualized inclusion and exclusion zones.
§ 301.48(3)(c). An “exclusion zone” is defined as “a zone in which a person who is tracked using
a global positioning system tracking device is prohibited from entering except for purposes of
traveling through it to get to another destination.” § 301.48(1)(a). An “inclusion zone” is “a zone
in which a person who is tracked using a global positioning system tracking device is prohibited
from leaving.” § 301.48(1)(c).
In creating exclusion zones, the statute instructs DOC “to focus on areas where children
congregate, with perimeters of 100 to 250 feet, and on areas where the person has been prohibited
from going as a condition of probation, extended supervision, parole, conditional release, supervised
release, or lifetime supervision.” § 301.48(3)(c). In creating inclusion zones for a person on
supervised release, DOC is instructed to look to § 980.08(9), which requires that individuals granted
supervised release from Chapter 980 commitments be restricted to their home for the first year of
supervision, except for outings that are under the direct supervision of a DOC escort and are for
employment or religious purposes, or for caring for the individual’s basic living needs. In addition
to monitoring the location of the person subject to the statute, the system is required to immediately
alert DOC or the local law enforcement agency having jurisdiction over the exclusion or inclusion
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zones if the person being tracked stays in any exclusion zone for longer than needed to travel
through to get to another destination or if the person leaves any inclusion zone. § 301.48(3)(a)1.
Persons who have been convicted of serious child sex offense, but have not been committed
under Chapter 980, may be moved to what the statute calls “passive positioning system tracking”
once they are no longer on supervision. § 301.48(2m). “Passive positioning system tracking” does
not required DOC to create individualized exclusion and inclusion zones. Instead, it simply
“monitors, identifies and records a person’s location.” § 301.48(1)(dm). As to each system, DOC
is required to determine the costs of the global positioning system tracking and determine how much
of the cost the person tracked can pay after considering the person’s financial resources, his earning
capacity, the needs and earning capacity of his dependents, and any other costs of supervision he
is required to pay. § 301.48(4)(a) and (d). The person subject to the global positioning system
tracking is then required to pay the amount assessed. § 301.48(4)(b).
Belleau’s complaint is silent as to whether DOC has created any individualized exclusion
or inclusion zones for him, or whether he has been required to pay the costs incurred by the State
in tracking him. He does allege, however, that he was discharged from an earlier commitment under
Chapter 980 effective July 7, 2010, apparently after the State stipulated that it could not meet its
burden to demonstrate that Belleau was still a sexually violent person and that he did not meet the
statutory criteria for supervised release. Despite the fact that he was discharged from his
commitment, Belleau alleges that as he was being released from custody he was met by two agents
from DOC who informed him that they had an order to fit him with a GPS tracking device. Belleau
claims that requiring him to submit to electronic monitoring violates rights guaranteed him by the
United States Constitution.
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Belleau’s claim is not frivolous. Requiring a person to continuously wear a GPS tracking
device is clearly an infringement on one’s personal liberty. “Freedom from physical restraint ‘has
always been at the core of the liberty protected by the Due Process Clause from arbitrary
governmental action.’” Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (quoting Foucha v.
Louisiana, 504 U.S. 71, 80 (1992)). Having discharged Belleau from his civil commitment under
Chapter 980, it is unclear what constitutional authority DOC has for requiring him to wear a GPS
tracking device and otherwise limit his freedom. In order to have been committed under Chapter
980 as a sexually violent person, Belleau must have previously committed a sexually violent
offense. See Wis. Stat. § 980.01(7) (defining “sexually violent person” as a person who has been
convicted of, or otherwise found to have committed a sexually violent offense). But he presumably
committed that crime and served his sentence long before the State’s enactment of its lifetime GPS
tracking statute. To punish him for that crime based on a statute enacted after he committed it
would seem to violate the Ex Post Facto Clause of Article I, § 10, cl. 1, of the Constitution and the
Due Process Clause of § 1 of the Fourteenth Amendment. Smith v. Doe, 538 U.S. 84, 97 (2003).
No doubt, the State views lifetime tracking not as punishment, but as a measure intended for the
protection of the public. Yet, even enactments that are intended solely for the protection of the
public will be found punitive and a violation of rights protected by the Constitution if “the statutory
scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil.”
Id. at 92 (internal quotations and brackets omitted). From its reading of section 301.48, the court
is unable to say that Wisconsin’s lifetime GPS Tracking System does not reach that level.
At the same time, as ADA Greene’s motion to dismiss makes clear, Belleau’s ignorance of
the law and the procedural history of the case give rise to several jurisdictional issues that must first
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be addressed before the court can reach the merits of his claim. Prior to filing this action, Belleau
had filed a petition in state court seeking termination of lifetime tracking pursuant to Wis. Stat.
§ 301.48(6). The state court denied his petition on March 30, 2012. Belleau then filed this action
in federal court on November 27, 2012. Since then, Belleau has filed several motions which were
all denied because he had not yet properly served ADA Greene. ADA Greene has moved to dismiss
the action based on insufficient service of process and lack of personal jurisdiction, as well as
failure to serve a copy of the summons and complaint on ADA Greene within 120 days after the
complaint was filed. Defendant also asserts that Plaintiff’s claims are barred by the issue preclusion
and Rooker-Feldman doctrines. For the reasons that follow, Defendant’s motion will be denied, at
least for now.
As this Court stated previously in this matter, the plaintiff is responsible for serving the
summons and complaint on ADA Greene within 120 days after the complaint is filed. Fed. R. Civ.
P. 4(c)(1) and (m). Personal service of the summons and complaint must be made by “[a]ny person
who is at least 18 years old and not a party.” Fed. R. Civ. P. 4(c)(2) (emphasis added). The
summons and complaint may be served by (1) delivering a copy of the summons and complaint to
the individual personally; (2) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of
each to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ.
P. 4(e)(2). Once service has been completed, proof of service in the form of the server’s affidavit
must be filed with the court. Fed. R. Civ. P. 4(l)(1).
Belleau filed his complaint on November 27, 2012, giving him until March 28, 2013, to
serve ADA Greene with the summons and complaint. He has failed to properly do so within the
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120 days. On March 4, 2013, Belleau filed “proof of service” stating that he served the summons
and complaint, but such service is improper because Belleau is plainly a party to this action and is
therefore disqualified from personally serving the summons and complaint. ADA Greene also
contends that personal service was never properly achieved because Belleau failed to identify the
agent authorized by appointment or law who received the service of process on behalf of ADA
Greene. Rather, the “proof of service” only bears a “Received” stamp from the Brown County
District Attorney Office.
A court may extend the time for service if a plaintiff shows good cause for the failure to
effect service within 120 days. This court has twice informed Belleau of his duty to serve ADA
Greene, including explicitly explaining that a party to the action (i.e. the Plaintiff himself) cannot
serve the summons and complaint. (ECF Nos. 8, 13.) It has even explained that, upon his request,
the court can direct the United States Marshal to complete service. (ECF No. 8, at 1.) Yet, he has
failed to do so properly. Nevertheless, it makes little sense to dismiss the case on that basis since
the dismissal would be without prejudice and Belleau could simply start over again. Although
clearly misunderstanding the court’s previous orders, Belleau has diligently attempted to properly
serve ADA Greene. Moreover, given his pro se status, it would be inappropriate to dismiss the suit
on this basis at this point, especially since his claim may have merit. Belleau will therefore be given
an additional 120 days to properly serve ADA Greene.
ADA Greene also argues that Belleau’s claims must be dismissed on the merits because they
are barred under the doctrine of issue preclusion and the Rooker-Feldman doctrine. The RookerFeldman doctrine precludes federal district courts from exercising jurisdiction to review final statecourt judgments. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Court
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of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine bars “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.”
Feldman, 544 U.S. at 284. Because the Rooker-Feldman doctrine is jurisdictional in nature, its
applicability must be determined before reaching the merits or considering ADA Greenes'
arguments regarding the applicability of affirmative defenses. Long v. Shorebank Dev. Corp., 182
F.3d 548, 554-55 (7th Cir. 1999) (citing Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996) (“Where
Rooker-Feldman applies, lower federal courts have no power to address other affirmative defenses,
including res judicata.”)).
In determining whether the doctrine bars the district court from hearing the plaintiff’s
claims, “the fundamental and appropriate question to ask is whether the injury alleged by the federal
plaintiff resulted from the state court judgment itself or is distinct from that judgment.” Garry v.
Geils, 82 F.3d 1362, 1365 (7th Cir. 1996). If the injury complained of was not caused by the
judicial decision and is not “inextricably intertwined” with it, the Rooker-Feldman doctrine does
not apply. Gen. Auto Serv. Station LLC v. City of Chicago, Ill., 319 F.3d 902, 905 (7th Cir. 2003);
Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 996 (7th Cir. 2000). “The pivotal inquiry is
whether the federal plaintiff seeks to set aside a state court judgment or whether he is, in fact,
presenting an independent claim.” Long v. Shorebank Dev. Corp., 182 F.3d at 555 (internal
quotations omitted). Accordingly, federal claims alleging a prior injury that a state court failed to
remedy are not precluded. Id.
In his petition for termination of lifetime tracking filed in state court, Belleau asserted that
tracking was improperly imposed without a court order and that he was ineligible for lifetime
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tracking because he was discharged from his Chapter 980 commitment. The state court denied his
petition because a discharge from a Chapter 980 civil commitment does not make a person
ineligible for lifetime tracking; rather, it makes them subject to lifetime tracking without the
possibility to petition for removal. Wis. Stat. § 301.48(2)(b) and (6)(b)3. Furthermore, the state
court explained that Belleau had brought his petition too early–he was ineligible for termination of
tracking for at least 20 years. (Actually, because he was previously committed under Chapter 980
as a sexually violent person, Belleau can never petition for termination. Wis. Stat. § 301.48(6)(b)3.)
Belleau’s federal complaint appears wholly independent of the state court’s decision on his
petition for termination of the tracking order, at least to the extent it challenges the constitutionality
of the state law imposing the lifetime tracking requirements. While Belleau’s pro se complaint is
not stated in the most clear terms, he plainly contends that subjecting to lifetime tracking violates
his rights under the Constitution. In contrast, the state court decision only considered whether it was
lawful to impose lifetime tracking on a person discharged from custody under Chapter 980 without
a court order. The state court held that under Wis. Stat. § 301.48, Belleau was, indeed, subject to
lifetime tracking, and the court lacked jurisdiction to hear Belleau’s petition to terminate lifetime
tracking until 20 years after the date on which the period of lifetime tracking began. See Wis. Stat.
§ 301.48(6)(b). To the extent that Belleau now challenges the constitutionality of the law itself or
the constitutionality of the law as applied to him, this court need not second guess the decision of
the state court. He is essentially asking this Court to answer a different question–that is,
notwithstanding the language of the statute, may the state constitutionally require that he wear a
GPS tracking device for the remainder of his life? The court is not convinced that, at least on the

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basis of the Belleau’s pro se pleadings, the Rooker-Feldman doctrine precludes federal subject
matter jurisdiction.
Additionally, Belleau’s claims are not barred by the issue preclusion doctrine. Issue
preclusion bars the relitigation of a factual or legal issue that was actually litigated and decided in
an earlier action. Virnich v. Vorwald, 664 F.3d 206, 215 (7th Cir. 2012). Belleau’s constitutional
claims were not actually litigated or decided in the state court. Moreover, a court must also consider
several factors to determine whether application of the doctrine would comport with “fundamental
fairness” before dismissing a party’s claims. Id. at 216. Such factors include whether matters of
public policy and individual circumstances would render the application of the doctrine unfair and
whether there are differences in the extensiveness of proceedings between the two courts that would
warrant relitigation of the issue. Id. at 217. Because Belleau proceeded pro se both in filing the
instant action and in filing the petition for termination of lifetime tracking in state court, it would
not comport with fundamental fairness to bar his claims. Accordingly, ADA Greene’s motion to
dismiss will be denied.
One final matter warrants further comment. In view of the significance of the issue Belleau
has attempted to raise and his obvious lack of legal training and difficulty in even naming and
serving the proper party, it would appear that this might be an appropriate case for the court to
consider recruitment of counsel to represent him.

Although civil litigants do not have a

constitutional or statutory right to appointed counsel, “[t]he court may request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Traditionally, courts have
looked to three factors in determining whether to make such a request: “the merits of the plaintiff's
claim, the plaintiff's diligence in attempting to obtain a lawyer, and the plaintiff's financial ability
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to retain counsel.” Jones v. WFYR Radio/RKO General, 626 F.2d 576, 577 (7th Cir. 1980),
overruled on other grounds, Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir. 1981).
More recently, the Seventh Circuit has emphasized the importance of determining whether, given
the difficulty of the case, the pro se plaintiff appears competent to litigate it himself. Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007) (en banc). The assessment of the pro se litigant’s competence
to represent himself, requires consideration of two intertwined inquiries: “the difficulty of the case
is considered against the plaintiff's litigation capabilities, and those capabilities are examined in
light of the challenges specific to the case at hand.” Id. at 655. “[T]he question is whether the
difficulty of the case-factually and legally-exceeds the particular plaintiff's capacity as a layperson
to coherently present it to the judge or jury himself.” Id. The court should also consider whether
the presence of counsel would likely make a difference in the case. Id. at 654-55.
Here, because Belleau had sufficient funds to pay his full filing fee, he was not permitted
to proceed in forma pauperis. But it is clear from his submission that he lacks the financial
resources that would be needed to pay counsel the fee that would be required. Given the
significance and the complexity of the issues that Belleau appears to be raising, and his
demonstrated difficulties in successfully presenting his case thus far, he seems to lack the capacity
to coherently present his case. Counsel could both expedite consideration of the merits of the case
and help to clarify the issues. On the other hand, Belleau has not requested the court to recruit
counsel on his behalf, nor has he made a showing that he has tried to interest an attorney in
accepting his case on a contingency fee basis. In this regard, it should be noted that this is the kind
of case in which fees may be recoverable from the defendant if the plaintiff prevails. See 42 U.S.C.
§ 1988. Absent a specific request from Belleau and a showing that he has been unable to recruit
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counsel on his own, the court will refrain from recruiting counsel for him at this time. If Belleau
wants an attorney to represent him, however, and is unable to obtain counsel on his own, he should
file a motion requesting that the court recruit counsel for him.
In sum, ADA Greene’s motion to dismiss is denied, and Belleau is granted an extension of
120 days in which to properly serve the defendant. In addition, if Belleau wishes to have an attorney
represent him and cannot obtain an attorney on his own, he should file a motion requesting counsel
and explaining why he needs court assistance in obtaining an attorney.
SO ORDERED this

13th

day of May, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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