Barnes v. Brown County et al

Filing 259

ORDER signed by Judge Pamela Pepper on 3/13/2017 GRANTING 226 Brown County defendants' amended motion for summary judgment; GRANTING 235 City of Green Bay defendants' renewed motion for summary judgment; GRANTING Village of Ashwaubenon defendants' amended motion for summary judgment (Dkt. No. 233/226); DISMISSING defendant JuJuan Jones and DISMISSING case. (cc: all counsel; by US Mail to plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
LAMON LAMAR BARNES,
Plaintiff,
v.

Case No. 13-cv-607-pp

BROWN COUNTY,
BROWN COUNTY DRUG TASK FORCE,
DAVE POTEAT, JEFF LADE,
ZAK HOSCHBACH, MARK HACKETT,
JOHN LAUX, GUY SHEPARDSON,
INVESTIGATOR DERNBACH,
VILLAGE OF ASHWAUBENON,
CITY OF GREEN BAY, JUJUAN JONES,
DTF INVESTIGATOR SCANLAN,
MARY LYNN YOUNG, and BRAD BRODBECK,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING BROWN COUNTY DEFENDANTS’
AMENDED MOTION FOR SUMMARY JUDGMENT (DKT. NO. 226),
GRANTING CITY OF GREEN BAY DEFENDANTS’ RENEWED MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 235), GRANTING VILLAGE OF
ASHWAUBENON DEFENDANTS’ AMENDED MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 233/226), DISMISSING DEFENDANT JUJUAN
JONES, AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, Lamon Lamar Barnes, is a Wisconsin state prisoner
representing himself. His lawsuit alleges that the defendants violated his rights
under the United States Constitution and Wisconsin state law related to a
criminal investigation conducted by a drug task force in Brown County, which
resulted in his arrest and subsequent conviction on six counts of delivering
cocaine. Dkt. No. 35. The defendants have moved for summary judgment. Dkt.

1

No. 226, 235, 233. For the reasons explained in this order, the court grants the
defendants’ motions and dismisses this case.
I.

BACKGROUND
A.

The Complaints

The plaintiff filed his original complaint on May 30, 2013. Dkt. No. 1. He
named eleven defendants: Brown County, the Brown County Drug Task Force
(DTF), Dave Poteat, John Laux, Mark Hackett, Brad Dernbach, Zak Hoschbach,
Jeff Lade, Guy Shepardson, Jujuan Jones and Anthony Washington. Id. at 5-6.
Two weeks later, he filed his first amended complaint. Dkt. No. 7. This
complaint named the same eleven defendants, plus five John and Jane Doe
defendants. Id. at 1. Several months later, on January 10, 2014, he filed a
second amended complaint. Dkt. No. 21. This one named ten of the original
defendants—this time, the plaintiff left out Anthony Washington—along with
the five Doe defendants, but added the Village of Ashwaubenon and the City of
Green Bay. Id. at 6. 
On March 5, 2014, the plaintiff filed a motion, asking leave to file a third
amended complaint. Dkt. No. 34. Seven weeks later, Judge Rudolph T. Randa
issued a screening order. Dkt. No. 35. In that order, he granted the plaintiff’s
motion to file a third amended complaint, and ruled that that complaint would
be the operative complaint going forward. Id. at 10. The third amended
complaint did not add, or delete, any defendants.
While Judge Randa indicated that it appeared that the plaintiff’s claims
might be barred by the Supreme Court’s decision in Heck v. Humphrey, 512
2

U.S. 477 (1994), he nonetheless allowed the plaintiff to proceed on claims
challenging aspects of the criminal investigation that led up to the plaintiff’s
January 11, 2011, arrest for delivering cocaine. Dkt. No. 35 at 5-6. The
screening order summarized the plaintiff’s four claims: First, the plaintiff
alleged that the defendants “with[e]ld exculpatory evidence contained in
unofficial files” in drug trafficking cases that involved a confidential informant,
which harmed the plaintiff by depriving him of his right to a fair trial. Id. at 4.
Second, the plaintiff alleged that Drug Task Force officials “fabricat[ed]
evidence that was not essential to my conviction, but done in effort to establish
probable cause and also separately obtain a conviction[.]” Id. Third, the plaintiff
alleged that Brown County, the Drug Task Force, and participating
municipalities “utilized an unconstitutional custom, policy, and/or practice for
receiving and resolving complaints made by citizens about the misconduct of
DTF investigators which did not allow citizens to take good faith participation
in any complaint procedure[.]” Id. at 4-5. Fourth, the plaintiff alleged that
Brown County, the Drug Task Force, and participating municipalities utilized
an unconstitutional custom, policy, and/or practice to not strip search
confidential informants “which denied DTF suspects of corroboration
specifically in situations when indications were present a CI is
unreliable/compromised and entered or exited a controlled transaction with
manufactured evidence.” Id. at 5.
On June 16, 2015, the plaintiff asked for leave to file a fourth amended
complaint. Dkt. No. 182. Judge Randa granted that motion, dkt. no. 183, and
3

on June 19, 2015, the clerk’s office docketed the fourth amended complaint.
Dkt. No. 184. This complaint identified three of the Doe defendants as
Investigator Scanlan, Investigator Bradbeck1, and Mary Lynn Young. Id. at 1.
The fourth amended complaint now is the operative complaint. 
All but one of the defendants named in the fourth amended complaint
have counsel; they have divided into three groups, each represented by
different attorneys. Defendants Brown County, the Brown County DTF, Dave
Poteat, Zak Hoschbach, Mark Hackett, Guy Shepardson, Investigator
Dernbach, Mary Lynn Young, and Brad Brodbeck are one group, whom the
court will refer to as “the Brown County defendants.” Jeff Lade and the Village
of Ashwaubenon are the second group; the court refers to them as “the
Ashwaubenon defendants.” John Laux, the City of Green Bay, and DTF
Investigator Scanlan are the third group—“the Green Bay defendants.”
The plaintiff also named Jujuan Jones as a defendant. Jones has not
answered the complaint, or participated in this litigation.
B.

Summary Judgment Motions

On December 8, 2014, all of the represented defendants filed a joint
motion for summary judgment, dkt. nos. 123-134, supported by a joint brief,
dkt. no 124. The Brown County defendants filed separate proposed findings of
fact, dkt. no. 125, as did the Green Bay defendants, dkt. no. 129.

 The plaintiff identified someone named “Bradbeck” as one of the Doe
defendants; the answer to the fourth amended complaint indicates that the
defendant’s actual name is Brad Brodbeck. Dkt. No. 201.
1

4

On July 7, 2015, following the plaintiff’s filing of the fourth amended
complaint and identifying the Doe defendants, Judge Randa denied without
prejudice the defendants’ joint motion for summary judgment. Dkt No. 207.
The court noted that once the newly-identified defendants had been served and
had answered the complaint, it would enter a scheduling order allowing the
plaintiff to conduct limited discovery relating to the new defendants. Id. at 4.
The court advised the defendants that when they filed an amended motion for
summary judgment, they could refer to materials from their original motion,
without refiling the materials with the court. Id. at 3. The Brown County
defendants (including Brodbeck and Young) answered the fourth amended
complaint on July 2, 2015, dkt. no. 201; the Green Bay defendants (including
Scanlan) answered on July 15, 2015, dkt. no. 211, and the Ashwaubenon
defendants answered on July 23, dkt. no. 215. Judge Randa then set the new
deadline for filing dispositive motions for April 15, 2016. Dkt. No. 218 at 20.
On April 14, 2016, the Brown County defendants filed a supplemental
motion for summary judgment, along with a supporting brief and supplemental
proposed findings of fact. Dkt. No. 226-232. That same day, the Ashwaubenon
defendants filed a letter, stating that they joined the Brown County defendants’
summary judgment motion and materials. Dkt. No. 233. On April 15, 2016, the
Green Bay defendants filed a renewed motion for summary judgment, along
with amended proposed findings of fact. Dkt. No. 235-238. They did not file a
new brief.

5

The plaintiff responded to the defendants’ summary judgment motion on
May 26, 2016. Dkt. No. 244-248. Although the plaintiff responded to the
defendants’ proposed findings of fact and filed an affidavit, dkt. no. 245-247,
he did not file his own proposed findings of fact. See Civil L.R. 56(b)(2)(B)(ii)
(E.D. Wis.) (requiring a party opposing a motion for summary judgment to file,
among other things, a response to the moving party’s statement of facts by
numbered paragraph, and a statement of any additional facts upon which the
opposing party relies).
On June 15, 2016, the Brown County defendants filed a reply in support
of their summary judgment motion. Dkt. No. 250.
On August 4, 2016, this case was reassigned to this court.
II.

FACTS2
Brown County Drug Task Force (DTF) officials arrested the plaintiff on

January 11, 2011, and charged him with six counts of delivering cocaine as
part of DTF investigation number 10-0269. Dkt. No. 125 at ¶¶1-2. DTF
investigation 10-0269 used a confidential informant (“CI”) named Jujuan
Jones. Id. at ¶3. The DTF Investigation 10-0269 file materials refer to Jones as
“CI 1395.” Id. at ¶4. A jury found the plaintiff guilty of all six charges that

2

 The court takes the facts from the Brown County defendants’ Proposed

Findings of Fact and Supplemental Proposed Findings of Fact (Dkt. No. 125,
228), and the Green Bay defendants’ Proposed Findings of Fact and Amended
Proposed Findings of Fact (Dkt. No. 129, 236). The plaintiff filed responses to
the defendants’ proposed facts, some of which purport to dispute certain facts.
Dkt. No. 245, 246. The court includes the plaintiff’s responses in this section
only to the extent that his response addresses and/or disputes the proposed
fact. 
6

resulted from DTF investigation 10-0269. Id. at ¶5; State v. Barnes, Case No.
2011CF000043, Brown County Circuit Court, at https://wcca.wicourts.gov.
A.

September 17, 2010, Transaction

The first undercover activity in DTF investigation 10-0269 took place on
September 17, 2010. Dkt. No. 125 at ¶7. That day, two DTF officers, including
defendant Mark Hackett, met with CI 1395 to arrange a controlled purchase of
cocaine base (“crack”) between CI 1395 and a man known as Tone.3 Id. at ¶8.
The DTF officers fitted CI 1395 with a digital wireless transmitter/recorder and
an audiovisual recorder, and gave him $275 of prerecorded U.S. currency. Id.
at ¶9. The DTF officers provided CI 1395 with an undercover DTF vehicle to use
during the controlled buy transaction. Id. at ¶10. As required by DTF policy 06
pertaining to the undercover use of informants, the DTF officers searched CI

3

 The plaintiff takes issue with the fact that the “Operational Plan” for the

September 17, 2010 controlled purchase indicates that Investigator Ronk did
not participate, while the “Case Activity Report” states that Ronk did
participate. Dkt. No. 246 at ¶8. The proposed fact at ¶8 of Dkt. No. 125,
however, does not relate to Investigator Ronk. The defendants also explain that
one difference between Operation Plans and Case Activity Reports is that while
the former are proposals for future activity, the latter are accounts of the
activity that actually occurred. Dkt. No. 250 at 11. There are rational
explanations for discrepancies between an Operational Plan and a Case Activity
Report. Id. DTF investigators may call in sick, switch shifts, or take vacation
and therefore may not be available on the date of the actual operation. Id. at
12. As intelligence is gathered and even as a transaction is in process,
strategies may be altered to address changed circumstances or objectives. Id.;
see also Dkt. No. 197 (Poteat Declaration identifying these possibilities and
explaining how they affect various documents).  
The plaintiff objects to several proposed facts based on a discrepancy
between the Operational Plan and the Case Activity Report. As explained, these
discrepancies do not equate to factual dispute over what actually occurred. The
court will not treat the plaintiff’s objections on that basis as a factual dispute.

7

1395 and the undercover DTF vehicle for contraband or currency, with
negative results.4 Id. at ¶11.
On September 17, 2010, CI 1395 drove to a gas station, where he and
Tone had agreed to meet. Id. at ¶12. CI 1395 approached Tone while Tone was
in a black Toyota Camry. Id. at ¶13. After waiting a few minutes at the gas
station, a blue Hummer, driven by a heavy-set, unidentified man, pulled into
the gas station. Id. at ¶14. CI 1395 gave Tone $275. Id. at ¶15. After receiving
$275 from CI 1395, Tone left the Camry and got into the front passenger seat
of the Hummer. Id. at ¶16. The vehicle drove away, and was gone for less than
a minute before pulling back into the gas station. Id. at ¶17. Tone exited the
Hummer, got back into his vehicle, and handed CI 1395 two bags of crack. Id.
at ¶¶18-19. CI 1395 then got back into the undercover DTF vehicle and
returned to the DTF officers. Id. at ¶20.
Upon meeting back up with DTF officers, CI 1395 returned the recording
equipment, vehicle and the purchased crack. Id. at ¶21. DTF officers performed
a field test on the crack to confirm the weight and the presence of cocaine base.
Id. at ¶22. DTF officers itemized all of the expended prerecorded money by
serial number as required by DTF policy 06 pertaining to the purchase of

4

 The plaintiff “disputes” this fact as to the nature of the search conducted, and

clarifies that the DTF does not strip search confidential informants. Dkt. No.
246 at ¶11. The plaintiff cites to Hackett’s trial testimony that his agency does
not strip search confidential informants because, if the did, it would be difficult
to get confidential informants. Dkt. No. 92-21. Throughout the defendants’
proposed facts, every time an officer searches a confidential informant, the
plaintiff objects that the search was not a strip search. Because the plaintiff’s
assertion is not a dispute (the defendants agreed that they didn’t strip search
informants), the court will not note every instance of that assertion in its
recitation of the facts. 
8

evidence. Id. at ¶23. They placed the crack, all recorded audio and visual
material, and all other evidence collected during the controlled transaction into
labeled evidence bags as required by DTF policy 09. Id. at ¶24. As required by
DTF policy 06 pertaining to the undercover use of informants, DTF officers
searched CI 1395 and the DTF vehicle for any currency or contraband with
negative results. Id. at ¶25.
Officer Hackett transported all evidence collected during the controlled
transaction directly to the DTF, where it was weighed and processed. Id. at
¶26. Officer Hackett packaged and sealed the evidence. Id. at ¶27. He
completely and accurately entered the items of evidence into “Evidence
Manager.” Id. at ¶28. Officer Hackett printed bar code labels from Evidence
Manager, and affixed them to the outside of each package of evidence collected
during the controlled transaction. Id. at ¶29. He placed each sealed and
labelled item of evidence collected during the controlled transaction into an
evidence locker. Id. at ¶30.
On September 17, 2010, CI 1395 told DTF officers that he was not able
to ascertain the identity of the man driving the blue Hummer. Id. at ¶31. That
day, a surveillance unit that included Lieutenant John Laux followed the blue
Hummer, and observed the driver exiting the vehicle at an apartment complex.
Id. at ¶32. Lieutenant Laux observed that the driver of the blue Hummer was a
heavier-set black man. Id. at ¶33. Officer Hackett researched the license plates
law enforcement had observed on the blue Hummer involved in the controlled
transaction, in an attempt to determine the identity of the driver. Id. at ¶34.
9

The blue Hummer was registered to a woman living in Milwaukee. Id. at ¶35.
On September 17, 2010, Officer Hackett discovered that the woman to whom
the blue Hummer was registered had a son named Lamon Barnes. Id. at ¶36.
Officer Hackett obtained an undated photograph of Lamon Barnes and showed
it to Lieutenant Laux. Id. at ¶37. Lieutenant Laux confirmed that the person in
the photograph was the same person he observed driving the blue Hummer
involved in the controlled transaction. Id. at ¶38.
B.

October 5, 2010, Transaction

On October 5, 2010, CI 1395 met with DTF officers Mark Hackett and
Guy Shepardson to prepare for a second controlled purchase of crack from
Tone. Id. at ¶39. At their meeting, CI 1395 told DTF officers that Tone was
going to obtain the crack from a man known as Blue. Id. at ¶40. That day,
CI 1395 called Tone, and they eventually agreed to meet at Tone’s house, where
they could wait for their supplier to arrive with the crack. Id. at ¶41. DTF
officers fitted CI 1395 with a digital wireless transmitter/recorder and an
audiovisual recorder, and gave CI 1395 $450 in prerecorded U.S. currency. Id.
at ¶42. The DTF officers searched CI 1395 for U.S. currency and contraband,
with negative results. Id. at ¶43.
CI 1395 went to Tone’s house, where they waited for Blue. Id. at ¶44.
While at Tone’s house, Tone told CI 1395 that he had just received a text from
a different crack dealer, a man known as Fatz, and that Fatz would be bringing
the crack over shortly. Id. at ¶45. Tone told CI 1395 that Fatz was the other

10

man in the Hummer that had accompanied him during the September 17,
2010, transaction. Id. at ¶46.
CI 1395 checked back in with Officers Hackett and Shepardson under
the guise of confirming whether his ride would stay a little longer. Id. at ¶47. CI
1395 returned the recording equipment and currency to DTF officers and was
searched for any currency or contraband with negative results. Id. at ¶48. CI
1395 called Tone and Tone assured him that Fatz was still on his way. Id. at
¶49. DTF officers fitted CI 1395 again with the digital wireless
transmitter/recorder and an audiovisual recorder, and gave him the $450 in
prerecorded U.S. currency. Id. at ¶50.
CI 1395 returned to Tone’s house and gave Tone money for the crack. Id.
at ¶51. While CI 1395 stayed inside, Tone went outside to get the crack from
Fatz. Id. at ¶52. After going outside to meet Fatz, Tone came back inside his
house and gave the crack to CI 1395. Id. at ¶53. CI 1395 departed Tone’s
residence, and met back up with DTF Officers Hackett and Shepardson
immediately. Id. at ¶54.
CI 1395 returned the recording equipment to DTF officers. Id. at ¶55.
DTF officers searched CI 1395 for any currency or contraband, with negative
results. Id. at ¶56. DTF officers performed a field test on the crack purchased
by CI 1395 to confirm its weight and the presence of cocaine base. Id. at ¶57.
DTF officers itemized all of the expended prerecorded money by serial number.
Id. at ¶58. They placed the crack, all recorded audio and visual material, and

11

all other evidence collected during the controlled transaction, into labeled
evidence bags. Id. at ¶59.
When DTF officers tested and weighed the crack, the bag appeared to
weigh less than it was supposed to. Id. at ¶60. Upon learning that he had not
received as much crack as he was told he was getting, CI 1395 called Fatz
directly. Id. at ¶61. CI 1395 told Fatz that he was the guy who just bought the
crack with Tone, and told him the amount was short. Id. at ¶62. CI 1395 asked
if he could just deal directly with Fatz for future drug purchases. Id. at ¶63.
Fatz told CI 1395 that if the amount of crack was short, that was between CI
1395 and Tone. Id. at ¶64. Fatz told CI 1395 that they could deal with each
other directly for future drug purchases. Id. at ¶65.
On October 5, 2010, Officer Hackett transported all evidence directly to
the DTF where it was weighed and processed. Id. at ¶66. Officer Hackett
packaged and sealed the evidence. Id. at ¶67. He completely and accurately
entered the items of evidence collected during the controlled transaction into
Evidence Manager. Id. at ¶68. Officer Hackett printed bar code labels from
Evidence Manager, and affixed them to the outside of each package of evidence.
Id. at ¶69. He placed each item of evidence collected into an evidence locker. Id.
at ¶70.
C.

October 20, 2010, Transaction

On October 20, 2010, DTF Officers Hackett and Shepardson met with CI
1395 to set up a controlled transaction. Id. at ¶71. CI 1395 would purchase the
crack directly from Fatz. Id. at ¶72. By October 20, 2010, the DTF had
12

positively identified Fatz as the plaintiff, Lamon Barnes. Id. at ¶73. That day, CI
1395 called the plaintiff and arranged to meet at Wal-Mart. Id. at ¶74. Officers
Hackett and Shepardson fitted CI 1395 with a digital wireless
transmitter/recorder and an audiovisual recorder and gave him $450 of
prerecorded U.S. currency. Id. at ¶75. DTF officers searched CI 1395 and his
vehicle for any currency or contraband, with negative results. Id. at ¶76.
A surveillance unit of DTF officers located near plaintiff’s residence
observed the plaintiff getting into a blue Hummer. Id. at ¶77. The surveillance
unit of DTF officers followed the plaintiff as he drove the blue Hummer to WalMart, then observed him get out and walk into the store. Id. at ¶78.
Approximately two minutes after the plaintiff walked into Wal-Mart, CI 1395
arrived at Wal-Mart and began walking toward the store. Id. at ¶79. As he was
walking toward the entrance to Wal-Mart, CI 1395 called the plaintiff, and the
plaintiff asked that CI 1395 meet him inside the store. Id. at ¶80. As CI 1395
entered the Wal-Mart store, two DTF officers, including Zak Holschbach, also
entered the store and kept visual contact on CI 1395 and the plaintiff. Id. at
¶81. CI 1395 met the plaintiff inside the Wal-Mart store, and they walked
through the laundry detergent aisle while the plaintiff talked on his cell phone.
Id. at ¶82. CI 1395 and the plaintiff exited the Wal-Mart store together and got
into the blue Hummer. Id. at ¶¶83-84. CI 1395 gave the plaintiff $300 of
prerecorded U.S. currency, and the plaintiff then gave CI 1395 a bag of crack.
Id. at ¶85. The plaintiff told CI 1395 that he only had $300 worth of crack to
sell. Id. at ¶86. The plaintiff discussed the October 7th controlled transaction
13

with CI 1395, and told CI 1395 that Tone messed with the bag of crack and
that was why the weight was off. Id. at ¶87. About a minute after receiving the
crack from the plaintiff, CI 1395 got out of the Hummer in the Wal-Mart
parking lot and walked back to his car as the plaintiff drove away. Id. at ¶88.
CI 1395 immediately met with DTF officers, and returned the recording
equipment and unused currency. Id. at ¶89. CI 1395 gave DTF officers the
purchased crack. Id. at ¶90. DTF officers searched CI 1395 and his vehicle for
any currency or contraband, with negative results. Id. at ¶91. DTF officers
performed a field test on the crack to confirm its weight and the presence of
cocaine base. Id. at ¶92. They itemized all of the expended and unexpended
prerecorded money by serial number. Id. at ¶93. DTF officers placed the crack,
all recorded audio and visual material, and all other evidence collected during
the controlled transaction into labeled evidence bags. Id. at ¶94.
Officer Hackett transported all evidence collected during the controlled
transaction directly to the DTF where it was weighed and processed. Id. at ¶95.
Officer Hackett packaged and sealed the evidence collected during the
controlled transaction. Id. at ¶96. He completely and accurately entered the
evidence into Evidence Manager. Id. at ¶97. Officer Hackett printed bar code
labels from Evidence Manager, and affixed them to the outside of each package
of evidence. Id. at ¶98. He placed each item of evidence collected in the
controlled transaction into an evidence locker. Id. at ¶99.

14

D.

October 29, 2010, Transaction

On October 29, 2010, DTF Officers Hackett and Holschbach met with CI
1395 to prepare for another controlled transaction buy of crack from the
plaintiff. Id. at ¶100. The plaintiff called CI 1395 and agreed to meet at a gas
station. Id. at ¶101. DTF officers fitted CI 1395 with a digital wireless
transmitter/recorder and an audiovisual recorder, and gave him $600 of
prerecorded currency. Id. at ¶102. DTF officers searched CI 1395 and his
vehicle for contraband or currency, with negative results. Id. at ¶103. A
surveillance unit of DTF officers, including Brad Dernbach, was located near
the plaintiff’s residence, and observed the blue Hummer and a white Cadillac
parked in the parking lot. Id. at ¶104. The surveillance unit observed the
plaintiff leave the building with a woman, and watched as the pair drove away
in the white Cadillac. Id. at ¶105. The surveillance unit followed the plaintiff as
he drove to a set of storage units and met with an unidentified man, then as he
went to the gas station to meet CI 1395. Id. at ¶106.
CI 1395 got into the back seat of the Cadillac when it arrived at the gas
station. Id. at ¶107. The plaintiff drove the white Cadillac around to the back of
the gas station and parked against an apartment complex garage. Id. at ¶108.
CI 1395 gave prerecorded U.S. currency to the plaintiff, who gave CI 1395 a
bag of crack. Id. at ¶109. The plaintiff dropped CI 1395 off at his vehicle, and
CI 1395 met back up with Officers Hackett and Holschbach. Id. at ¶110.
CI 1395 returned the recording equipment to DTF officers and gave DTF
officers the purchased crack. Id. at ¶111. DTF officers searched CI 1395 and
15

his vehicle for contraband or currency, with negative results. Id. at ¶112. DTF
officers performed a field test on the crack to confirm its weight and the
presence of cocaine base. Id. at ¶113. DTF officers itemized all of the expended
prerecorded money by serial number. Id. at ¶114. The officers placed the crack,
all recorded audio and visual material, and all other evidence collected during
the controlled transaction into labeled evidence bags. Id. at ¶115. Officer
Hackett transported all evidence collected during the controlled transaction
directly to the DTF where it was weighed and processed. Id. at ¶116. He
packaged and sealed the evidence collected during the controlled transaction.
Id. at ¶117. Officer Hackett completely and accurately entered the items
collected during the controlled transaction into Evidence Manager. Id. at ¶118.
He printed bar code labels from Evidence Manager, and affixed them to the
outside of each package of evidence collected during the controlled transaction.
Id. at ¶119. Officer Hackett placed each item of evidence collected during the
controlled transaction into an evidence locker. Id. at ¶120.
E.

December 3, 2010, Transaction

On December 3, 2010, DTF Officers Hackett and Shepardson met with CI
1395 to set up a controlled transaction of crack from the plaintiff. Id. at ¶121.
CI 1395 called the plaintiff and they agreed to meet at a Subway restaurant. Id.
at ¶122. DTF officers fitted CI 1395 with a digital wireless
transmitter/recorder and an audiovisual recorder, and gave him $600 of
prerecorded currency. Id. at ¶123. DTF officers provided CI 1395 with an
undercover DTF vehicle for use during the controlled transaction. Id. at ¶124.
16

DTF officers searched CI 1395 and the undercover DTF vehicle for contraband
or currency, with negative results. Id. at ¶125.
After waiting in the Subway parking lot for about thirty minutes, CI 1395
received a call from the plaintiff, telling him to drive further west. Id. at ¶126.
CI 1395 drove to the area that the plaintiff had described, and parked in a
hardware store parking lot. Id. at ¶127. CI 1395 called the plaintiff and gave
him his location. Id. at ¶128. Fifteen minutes later, the plaintiff pulled into the
hardware store parking lot in the blue Hummer. Id. at ¶129. CI 1395 got out of
his car, and got into the front seat of the Hummer in the hardware store
parking lot. Id. at ¶130. CI 1395 and the plaintiff drove around in the blue
Hummer, at which time CI 1395 gave the plaintiff $600 in prerecorded
currency, and the plaintiff gave CI 1395 three bags of crack. Id. at ¶131. After
selling CI 1395 the crack, the plaintiff dropped CI 1395 off at the undercover
DTF vehicle and drove away. Id. at ¶132.
After purchasing crack from the plaintiff, CI 1395 met back up with
Officers Hackett and Shepardson at a prearranged location. Id. at ¶133. CI
1395 returned the recording equipment and the undercover DTF vehicle and
gave the officers the purchased crack. Id. at ¶134. DTF officers searched CI
1395 and the vehicle for contraband or currency, with negative results. Id. at
¶135. DTF officers itemized all of the expended prerecorded money by serial
number. Id. at ¶136. Officer Hackett transported all evidence collected during
the controlled transaction directly to the DTF where it was weighed and
processed. Id. at ¶137. Officer Hackett packaged and sealed the evidence. Id. at
17

¶138. He completely and accurately entered the items collected during the
controlled transaction into Evidence Manager.5 Id. at ¶139. Officer Hackett
printed bar code labels from Evidence Manager and affixed them to the outside
of each package of evidence collected during the controlled transaction. Id. at
¶140. He placed each item of evidence collected during the controlled
transaction into an evidence locker. Id. at ¶141.
F.

January 11, 2011, Transaction

On January 11, 2011, Officers Hackett and Shepardson met with CI
1395 to arrange a controlled transaction of crack from the plaintiff. Id. at ¶142.
CI 1395 had contacted the plaintiff on January 11, 2011, before CI 1395 met
with DTF officers, and the plaintiff told CI 1395 that he would deliver the crack
to CI 1395. Id. at ¶143. Upon speaking to the plaintiff again while preparing
with the DTF officers, CI 1395 agreed to meet the plaintiff at a nearby grocery
store. Id. at ¶144. DTF officers fitted CI 1395 with a digital wireless
transmitter/recorder and an audiovisual recorder, and gave him $600 of
prerecorded currency. Id. at ¶145. DTF officers provided CI 1395 with an
undercover DTF vehicle. Id. at ¶146. DTF officers searched CI 1395 and the

5

 The plaintiff “disputes” this fact, and states that “the Operational Plan dated

October 29, 2010, for DTF Case 10-269-004 is DTF case 10-269-004 as DTF
Operational Plan dated October 21, 2010 lists a case number 10-269-004.”
Dkt. No. 246 at ¶139. The defendants point out that while a draft Operational
Plan dated October 21, 2010, exists, a controlled transaction did not take place
on that date. Dtk. No. 250 at 14. If a planned controlled buy does not go
forward, the next Operational Plan draft for the investigation is assigned the
same case sub-number, so that all of an investigation’s completed buys are
numbered sequentially when they are referred to the District Attorney. Dkt. No.
197 at ¶10; Dkt. No. 196 at 5-10, 27; Dkt. No. 218 at 5. The plaintiff insists
that a transaction occurred on October 21, 2010; he has not, however,
supported that statement with admissible evidence. 
18

vehicle for contraband or currency and found currency on CI 1395’s person. Id.
at ¶147. Officer Hackett confiscated CI 1395’s currency and kept it in his
possession until the controlled transaction was completed. Id. at ¶148.
(Confidential informants are not permitted to have on their person any U.S.
currency during controlled transactions other than the prerecorded U.S.
currency provided by the DTF. Id. at ¶149.)
CI 1395 then drove to the grocery store parking lot to meet the plaintiff.
Id. at ¶150. After CI 1395 had waited for approximately seventeen minutes, the
plaintiff called CI 1395, and CI 1395 confirmed the meeting location. Id. at
¶151. Approximately twenty-one minutes after the plaintiff called CI 1395, a
DTF surveillance unit including John Laux observed the blue Hummer driving
to the area where CI 1395 was waiting. Id. at ¶152. At the same time that the
DTF surveillance unit observed the blue Hummer, the plaintiff called CI 1395
and told him to meet at a Pizza Hut parking lot down the street. Id. at ¶153. CI
1395 drove from the grocery store to the Pizza Hut, got out of the DTF vehicle,
and entered the front seat of the blue Hummer driven by the plaintiff. Id. at
¶154. CI 1395 gave plaintiff the $600 of prerecorded currency and the plaintiff
gave CI 1395 three bags of crack. Id. at ¶155. CI 1395 got out of the Hummer,
got back into the undercover DTF vehicle, and met back up with DTF officers at
a prearranged location. Id. at ¶156.
CI 1395 returned the recording equipment and the undercover DTF
vehicle and gave DTF officers the purchased crack. Id. at ¶157. DTF officers
searched CI 1395 and the undercover DTF vehicle for contraband or currency,
19

with negative results. Id. at ¶158. Officer Hackett returned the currency to CI
1395 that was found on CI 1395’s person during the initial pat-down search.
Id. at ¶159. DTF officers performed a field test on the purchased crack to
confirm its weight and the presence of cocaine base. Id. at ¶160. They itemized
all of the expended prerecorded money by serial number. Id. at ¶161. DTF
officers placed the crack, all recorded audio and visual material, and all other
evidence collected into labeled evidence bags. Id. at ¶162.
Officer Hackett transported all evidence collected in the controlled
transaction directly to the DTF, where it was weighed and processed. Id. at
¶163. Officer Hackett packaged and sealed the evidence. Id. at ¶164. He
completely and accurately entered the items of evidence collected during the
controlled transaction into Evidence Manager. Id. at ¶165. Officer Hackett
printed bar code labels from Evidence Manager, and affixed them to the outside
of each package of evidence collected during the controlled transaction. Id. at
¶166. Officer Hackett placed each item of evidence collected during the
controlled transaction into an evidence locker. Id. at ¶167.
While CI 1395 was returning the recording equipment to Officers Hackett
and Shepardson and being searched for contraband, other DTF officers were
taking the plaintiff into custody about three blocks from the Pizza Hut parking
lot where the transaction had taken place. Id. at ¶168. Jeff Lade was one of the
officers involved in the plaintiff’s arrest, and he searched the plaintiff on the
scene for any evidence, but found nothing. Id. at ¶169. The plaintiff was
transported to an interview room at the Green Bay Police Department, and the
20

recording equipment in the room was activated. Id. at ¶170. Officer Hackett
asked the plaintiff for his consent to perform a strip search. Id. at ¶171.
Lieutenant Laux authorized a strip search to be conducted. Id. at ¶172.
Officers Hackett and Lade took the plaintiff to another interview room without
recording equipment and performed a strip search. Id. at ¶173. Under DTF
policy 14, strip searches of suspects in custody are performed
without the use of a recording device, and are performed under conditions that
provide privacy from all but those authorized to conduct the search. Id. at
¶174. During the plaintiff’s strip search, Officers Hackett and Lade located
$600 of prerecorded currency in the plaintiff’s underwear. Id. at ¶175. Once
back in the original interview room, Officer Hackett interviewed the plaintiff,
and the plaintiff signed a consent form for the search of his residence. Id. at
¶176. DTF officers, including officers Laux, Dernbach, Hackett, Shepardson,
and Lade, subsequently searched plaintiff’s residence. Id. at ¶177.
G.

Relevant Policy

The Brown County Sheriff’s Department promulgates various Drug Task
Force policies for the DTF to follow during its investigations. Id. at ¶182. DTF
policy “DTF 01” describes generally the duties of the case agent and work flow
requirements for each investigation. Id. at ¶183. In DTF investigation 10-269,
the case agent was Mark Hackett. Id. at ¶184. As the case agent, Officer
Hackett was responsible for preparing the district attorney referral and
ensuring that all required material accompanied the referral. Id. at ¶185. He

21

was responsible for providing any additional evidence from the investigation to
the assistant district attorney as it became available. Id. at ¶186.
On or before January 11, 2011, DTF officers determined they had
probable cause to arrest the plaintiff. Id. at ¶194. By January 11, 2011, DTF
officers had determined that it was unlikely they would obtain any additional,
useful evidence that might lead the DTF to other suspects from further
controlled buys involving the plaintiff. Id. at ¶195. Officer Hackett determined
that the DTF would arrest plaintiff following the January 11, 2011, transaction.
Id. at ¶196.
Officer Hackett referred the charges against plaintiff stemming from
investigation 10-0269 to the District Attorney’s Office for prosecution on
January 13, 2011. Id. at ¶197. As required by DTF policy 03, on January 13,
2011, Officer Hackett provided all required information to the district attorney’s
office in the referral of plaintiff’s charges, including a complete copy of the case
and all electronic discovery.6 Id. at ¶198. Information about confidential
informants is not included in DTF investigation files, and therefore is not
routinely sent to the district attorney when a case is referred to the district
attorney’s office. Id. at ¶199. Officer Hackett did not send information about CI
1395 to the district attorney when referring the plaintiff’s case to the district
attorney’s office. Id. at ¶200.
While DTF policies do not require confidential informants to be strip
searched, DTF policies do not prohibit DTF officers from strip searching a

 The plaintiff disputes that Hackett provided all required information to the
District Attorney’s office. Dkt. No. 246 at ¶198. 
6

22

confidential informant if they have a reasonable belief or suspicion that a
confidential informant is hiding contraband on his or her person.7 Id. at ¶201.
At no time during the pendency of investigation 10-0269 did DTF agents Mark
Hackett, David Poteat, Guy Shepardson, Zak Holschbach, or Brad Dernbach
have any reason to believe or suspect that CI 1395 was hiding contraband on
his person such that a strip search would be necessary. Id. at ¶202. CI 1395
was deactivated on September 1, 2011. Id. at ¶203. Pursuant to DTF policy 05,
all working files pertaining to CI 1395 were destroyed at the time of his
deactivation. Id. at ¶204.
The DTF has a citizen complaint procedure that is explained on the
Brown County Sheriff’s Department’s website. Id. at ¶205. Citizens may lodge a
complaint regarding DTF officers, policies, or procedures by requesting a
Citizen Complaint form from the Sheriff’s Department in person, by telephone,
by mail, or online. Id. at ¶206. This complaint procedure has been in existence,
and unchanged, since December 2008. Id. at ¶207. Citizen complaints to the
DTF must follow the form set forth in the Sheriff’s Department’s complaint
procedure. Id. at ¶208. Any form of complaint or inquiry that does not comply
with the Sheriff’s Department’s complaint procedure is not considered a formal
complaint, and is not tracked or maintained by the DTF, the Sheriff’s
Department, or Brown County. Id. at ¶209. As an exhibit to an affidavit he filed
in this case on October 20, 2014, attached at document entitled “Complaint

 The plaintiff disputes this, and asserts that according to Hackett, the DTF
does not strip search confidential informants because strip searches would
make it difficult to get people to cooperate with the DTF. Dkt. No. 246 at ¶201.
7

23

Concerning DTF, deliberate indifference.” Dkt. No. 92-9. The document bears a
date of October 20, 2011. Id. at 1. The plaintiff’s complaint submission did not
comply with the Brown County Sheriff’s Department’s citizen complaint
procedure. Dkt. No. 125 at ¶210.
DTF policy 06 requires that confidential informants must be searched
before and after each contact the CI has with a suspect. Id. at ¶215.
H.

Defendants Brodbeck and Young

The only date on which Investigator Brad Brodbeck participated in DTF
investigation 10-0269 was January 11, 2011. Dkt. No. 228 at ¶218. That day,
Brodbeck was part of a group of DTF investigators that surveilled the plaintiff
while he purchased cocaine from CI 1395. Id. at ¶219. Brodbeck conducted a
consent search of the plaintiff’s apartment on behalf of the DTF on January 11,
2011, following the plaintiff’s arrest. Id. at ¶220. Only two items of evidentiary
value were recovered during the search: a money order receipt from Wal-Mart
for $900.00 and a clear plastic baggie with the corner missing. Id. at ¶221.
Mary Lynn Young was not a member of the DTF, and did not participate
in any DTF activities related to investigation 10-0269. Id. at ¶223. During the
pendency of DTF Investigation 10-0269, Young was the Civil Process Clerk
employed by the Brown County Sheriff’s Department. Id. at ¶224. Young
staffed the reception window in the lobby of the Sheriff’s Office. Id. at ¶225.
One of her duties was to sign for incoming certified mail deliveries. Id. at ¶226.
Young does not specifically recall signing for any certified mail the plaintiff sent
to the Brown County Sheriff’s Office. Id. at ¶227. She did not open, inventory,
24

or examine the contents of packages or mail for which she signed as civil
process clerk. Id. at ¶228. Young was the person who physically received mail,
including packages shipped from the state crime lab to the DTF that contained
evidence. Id.
I.

Green Bay Defendants’ Facts

Defendant City of Green Bay is a municipality organized under the laws
of the State of Wisconsin. Dkt. No. 236 at ¶1. Defendant John C. Laux is a
police captain employed by the City of Green Bay Police Department. Id. at ¶2.
Laux served as a supervisor of the DTF from September 2009 to December
2011. Id. at ¶3. Laux did not create policies for the DTF. Id. at ¶4. The DTF
operated under the policies of the DTF, not the policies of the Green Bay Police
Department. Id. at ¶5.
While a supervisor of the DTF, Laux did not determine what evidence
would be seized or the value of seized evidence. Id. at ¶8. Laux never
edited/altered video or audio recordings, did not take statements from anyone,
did not operate video cameras, did not interview confidential informants, did
not decide what was to be seized as evidence, and did not decide what evidence
the district attorney reviewed or was used as evidence in the prosecution at
trial. Id. at ¶¶9-14. The DTF did not maintain “unofficial files.” Id. ¶17.
Defendant Scanlan served as an investigator of the DTF from August
2010 until August 2014. Id. at ¶20. As a DTF investigator, he did not create
DTF policies. Id. at ¶21. Scanlan collected and logged evidence. Id. at ¶23.

25

III.

ANALYSIS
A.

Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute
over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

26

B.

The Plaintiff’s Claims

The plaintiff filed four complaints. He framed his claims somewhat
differently in each version. Because the June 19, 2015 fourth amended
complaint is the operative complaint, the court will frame the plaintiff’s claims
the way he framed them in that complaint.
The first of the plaintiff’s four claims alleged that Brown County, the DTF
and “participating municipalities” had an “unconstitutional custom, policy,
and/or practice regarding citizen complaints . . . that denie[d] citizens good
faith participation in any complaint procedure relief.” Dkt. No. 184 at 10.
Specifically, he alleged that he wrote a complaint alleging that “in-part false
evidence” had been used against him, but that no one responded to the
complaint. Id. at 9. The plaintiff alleged that defendants Brown County, the
DTF and Poteat (the director of the DTF) violated “due process”—presumably
under the Fourteenth Amendment—and Wis. Stat. §66.0511(3) with their
policy or practice. Id. at 9-10. 
Second, the plaintiff alleged that someone—he names only defendants
Hackett (the case agent from Brown County) and Jones (the confidential
informant) in this claim—violated due process by having an “unconstitutional
police record keeping system.” Id.
Third, the plaintiff alleged that a number of the defendants—Poteat,
Laux, Lade, Hackett, Hoschbach, Dernbach, Shepardson, Scanlan, Brodbeck,
Jones, Brown County, the DTF, the Village of Ashwaubenon and the City of

27

Green Bay—either fabricated evidence to use against him, or assisted in the
fabrication of evidence. Id. at 11-15. 
Finally, the plaintiff alleged that Brown County, the DTF and
“participating municipalities” did not have a policy of strip-searching
confidential informants before using them to conduct controlled buys, and that
their failure to have such a policy violated due process. Id. at 16-18. 
A year later, in his June 1, 2016 brief opposing the defendants’ motions
for summary judgment, the plaintiff laid out his claims in a different way. Dkt.
No. 249 at 1. In that pleading, the plaintiff characterized his four claims as
follows:
1.
Plaintiff
claims
that
the
Defendants
utilized
an
unconstitutional police Record keeping and Disclosure/Case Flow
custom and/or practice. Plaintiff asserts that the process provided
by the Brown County Drug Task Force (DTF) policies for Record
keeping and Disclosure/Case Flow to the Brown County District
Attorney (BCDA) was adequate “in theory” but unconstitutional in
practice. Plaintiff argues that the County, City and Village
defendants utilized an unconstitutional practice by not following
their own policies and as a result denied plaintiff liberty interest
protected by procedural due process.
2.
Plaintiff claims the Defendants fabricated video recordings
that were not essential to his February 2, 2012, conviction in
Brown County Circuit Court Case (BCCCC) 11-CF-43 as the video
recordings were not essential to the prosecutor’s case. Plaintiff’s
claim focuses on the Defendants’ usage of the wrong procedures
and not any reaching of the wrong result/outcome of plaintiff’s
trial. Plaintiff’s fabrication of evidence claims is established by the
protected liberty interest rooted in both constitutional laws and the
Defendants’ own policies protected by procedural due process.
3.
Plaintiff
claims
that
the
Defendants
utilized
an
unconstitutional citizen complaint policy that did not allow him (an
incarcerated person at all times relevant to take good faith
participation in it). Plaintiff here relies on the provision of Wis.
State Statute 66.0511(3) that mandates each person in charge of a
28

law enforcement agency shall prepare in writing and make
available to the public a specific procedure for processing and
resolving a complaint by “any person” regarding the conduct of a
law enforcement agent. Plaintiff argues that the Defendants
provided inadequate process by not making the complaint process
available to incarcerated persons in the Brown County Jail (BCJ).
4.
Plaintiff
claims
that
the
defendants
utilized
an
unconstitutional policy not to strip search confidential informants.
The outlined policy denied suspects’ corroboration by DTF agents
specifically in circumstances where indicia was present that the CI
is unreliable and/or compromised. Plaintiff agrees that the DTF
strip policy was adequate “in theory” as it relates to CI’s, but at all
times relevant it was inadequate in practice. The Defendants
provided inadequate process/practice for violating their own
policies and as a result denied liberty interest protected by
procedural due process.
Dkt. No. 249 at 1-2.
C.

Analysis of the Plaintiff’s Claims
1.

The court will accept, for the purposes of this decision, the
plaintiff’s assertions that he is not trying to attack the
validity of his criminal conviction.

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court
held that a plaintiff cannot use a §1983 suit to attack the validity of his
criminal conviction. The court held that “when a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a judgment in favor
of the plaintiff would necessarily imply the invalidity of his conviction or
sentence . . . .” Id. at 487. If a judgment in the plaintiff’s favor would imply that
his conviction or sentence was invalid, “the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” Id. See also, McCann v. Neilsen, 466 F.3d 619, 62021 (7th Cir. 2006) (citing Heck, 512 U.S. at 487). To the extent that the plaintiff
29

claims that the defendants withheld exculpatory evidence (dkt. no. 184 at 5),
this claim is Heck-barred. See id.
The plaintiff, responding to the defendants’ argument that Heck bars
most, if not all, of the plaintiff’s claims, argues repeatedly that he is not
challenging the validity of his conviction. He says that the defendants’
arguments in this regard “border[] on the ridiculous.” Dkt. No. 249 at 31. He
says that his claims focus only on the defendants’ failure to follow their own
policies. Id. In many places in his response to the Brown County defendants’
summary judgment brief, the plaintiff states that “the only focus here is not on
trial error,” but whether the defendants “conducted [their] operations within
the boundaries of [their] own policies.” Id. at 17. He concludes by arguing that
if he prevails in this lawsuit, “[the plaintiff] will not be released from prison nor
will his sentence be shortened. If he is successful, such a disposition at most
he would have the opportunity to use the outlined documents in future
proceedings.” Id. at 32.
The Supreme Court stated in Skinner v. Switzer, 562 U.S. 521, 534
(2011) that it never had issued a decision limiting an aggrieved party to the
criminal or habeas corpus process “where the relief sought would ‘neither
terminat[e] custody, accelerat[e] the future date of release from custody, nor
reduc[e] the level of custody.’” (Citation omitted.) The Court made this
observation in a situation in which the state had argued that, although what
the plaintiff sought in that §1983 case was the right to have a DNA test, the
state believed that the plaintiff’s “ultimate aim . . . [was] to use the test results
30

as a platform for attacking his conviction.” Id. The Court rejected that “ultimate
aim” argument, and found that the plaintiff’s efforts to get a DNA test were not
Heck-barred.
It is understandable that the defendants in this case see that same
“ultimate aim” possibility. Prosecutors have a constitutional obligation to turn
over to a criminal defendant certain evidence prior to trial; if they fail to do so,
the conviction may be rendered invalid. See, e.g., Brady v. Maryland, 373 U.S.
83 (1963); Giglio v. United States, 405 U.S. 150 (1972). If law enforcement
officers engage in misconduct during an investigation or a prosecution—if, for
example, they fail to give the prosecutor the evidence which the prosecutor is
required to turn over to the defendant—the defendant in the criminal case may
raise that failure to disclose in a motion to suppress. Such a motion could
result in the court excluding the evidence at trial—which could result in the
jury acquitting the defendant on some or all of the charges. When the plaintiff
says that if he’s successful in this case, he’ll obtain nothing but the
“opportunity to use the outlined documents in future proceedings,” it is
difficult to imagine what those future proceedings might be, if not an attack on
the validity of his criminal conviction.
Nonetheless, for the purposes of summary judgment, the court will
accept the plaintiff’s assertion that, in filing this lawsuit, he is—in effect—doing
a public service, rather than seeking to challenge his conviction. The plaintiff
states that he is “us[ing] his own criminal case to expose[] flawed practices by
the` DTF” and the other defendants. Dkt. No. 249 at 33. He indicates that he is
31

trying to “reveal[]” through this case “customs, policies and practices” that
would not have been revealed had the defendants not investigated him. Id. at 3.
The court will accept those assertions—but as a result of accepting those
assertions, the court also concludes that the plaintiff has presented no claims
which can survive summary judgment.
2.

The plaintiff has not raised a genuine dispute of material fact
as to whether the defendants violated his rights under the
Fourteenth Amendment.

As noted above, the plaintiff alleged in his fourth amended complaint
that the defendants’ failure to follow policies, or to implement policies, violated
“due process.” Although he does not mention any constitutional provision in
the fourth amended complaint, his prior complaints grounded his claims in the
Fifth and Fourteenth Amendments to the Constitution. Both amendments
prohibit the deprivation of life, liberty or property without due process of law.
The plaintiff has not alleged that the defendants’ actions deprived him of life or
property. Rather, he argues that the defendants deprived him of certain liberty
interests. He does not claim that the defendants deprived him of physical
liberty—he makes repeated assertions that he is not challenging his arrest,
conviction or sentencing. Rather, he argues that he had a liberty interest in
being able to rely on the defendants to follow their own policies, or to create
policies. The court, therefore, will analyze his claims under the Fourteenth
Amendment due process clause. See generally, Oberfell v. Hodges, ___ U.S. ___,
135 S. Ct. 2584, 2632-2638 (2015) (Scalia, J., dissenting) (arguing that the
“liberty” protected by the Fifth Amendment is liberty from physical restraint,
32

and asserting that the Court has gone too far in interpreting the “liberty”
protected under the Fourteenth Amendment more broadly).
The Fourteenth Amendment prohibits the government from depriving a
person of liberty or property without due process. For a plaintiff in a §1983
case to prevail on a Fourteenth Amendment due process claim, then, the
plaintiff must show that the defendants’ actions deprived him of either a liberty
interest or a property interest.
As discussed above, the plaintiff has asserted several times that he is not
challenging his conviction or his sentence. He has avoided arguing that he
should not have been arrested, or should not have been taken into custody, or
should not have been sentenced. The court finds that the plaintiff has not
presented evidence or argument that the defendants deprived him of his
physical liberty without due process.
a.

Alleged failure to follow DTF record-keeping policy

The plaintiff asserts that his “protected liberty interest lies in his ability
as a United States Citizen to rely on the Defendants’ policies without question.
. . .” Dkt. No. 249 at 6. He states that the defendants’ practices denied him his
“liberty interest in his ability to rely on DTF policy as it relates to record
keeping and disclosure/case flow.” Id. at 12. He states that “DTF does not
adhere to its own policy,” which “den[ies] liberty interest to rely on DTF policy
which is protected by procedural due process.” Id. at 14. He later puts it
another way in relation to his argument that certain defendants fabricated
evidence, asserting that some of the defendants “both knowingly and un33

knowingly infringed on his . . . liberty to place full reliability in/on DTF’s
promulgated (DTF 01) Record keeping amounts to fabrication evidence.” Id. at
21.
There are two flaws with these arguments. The first is that neither the
plaintiff nor anyone else has an unqualified Fourteenth Amendment right to
rely on law enforcement policies. The Supreme Court stated years ago that
“[p]rocess is not an end in itself. Its constitutional purpose is to protect a
substantive interest to which the individual has a legitimate claim of
entitlement.” Olim v. Wakinekona, 461 U.S. 283, 250 (1983). For this reason,
the Seventh Circuit has held repeatedly that “[a] state’s failure to follow its own
procedures does not violate the due process clause.” Scott v. Vill. of Kewaskum,
786 F.2d 338, 342 (7th Cir. 1986). See also, e.g., Dietchweiler by Dietchweiler
v. Lucas, 827 F.3d 622, 628 (7th Cir. 2016); Kvapil v. Chippewa Cnty, Wis.,
752 F.3d 708, 715 (7th Cir. 2014); Charleston v. Bd. Of Tr. of Univ. of Ill., 741
F.3d 769, 773 (7th Cir. 2013); Pro-Eco, Inc. v. Bd. of Comm’rs of Jay Cnty,
Ind., 57 F.3d 505, 514 (7th Cir. 1995). The plaintiff bases all of his Fourteenth
Amendment claims on the argument that he had a due process right to rely on
the defendants to follow their own procedures. He did not.
The second flaw with these arguments is that, even if the plaintiff had a
constitutional right to rely on the defendants to follow their own policies, he
has not demonstrated that they did not do so. 
The plaintiff asserts that the defendants failed to turn over to the district
attorney (and thus, apparently, that the district attorney did not turn over to
34

him or his counsel) “unofficial files”—certain operational plans, confidential
informant information, “working files,” and some kinds of electronic recordings.
Dkt. No. 249 at 4. The evidence does not support that contention. The case
agent assigned to the plaintiff’s case, Mark Hackett, submitted an affidavit
(evidence), attesting to the facts that he did not withhold any evidence from the
DA’s office in the plaintiff’s case (dkt. no. 132 at ¶93); that Exhibit II to the
affidavit (dkt. no. 132-35) was a true and correct copy of everything he did
forward to the DA in the plaintiff’s case (dkt. no. 132 at ¶95); and that those
materials constituted the entire contents of the investigative file in the
plaintiff’s case (dkt. no. 132 at ¶96). In contrast, the plaintiff has not presented
any evidence that there was an “unofficial” file in his case that didn’t get turned
over to the DA.
Even if, however, the DTF had had a file that contained operational plans
for the investigation of the plaintiff, confidential informant information, working
files and some electronic recordings, and even if the DTO hadn’t turned that
file over to the DA, that failure would have violated the plaintiff’s constitutional
rights only if he could show that he was injured by that failure. Because the
plaintiff has no liberty interest in relying on the DTF policies, the only injury
the plaintiff could have alleged was that the failure to turn over the “unofficial”
file invalidated his conviction, or his sentence. If the plaintiff had alleged that
injury, he would find himself confronted with the Heck bar—the place for the
plaintiff to address such an injury was in his criminal case, either through a
motion to suppress or on appeal.
35

b.

Alleged fabrication of evidence

Similarly, the plaintiff contends that the defendants fabricated evidence.
He argues that during his trial, Ashwaubenon defendant Jeff Lade testified
under oath that Lade “recorded video surveillance recordings during the
outlined controlled transaction.” Dkt. No. 249 at 16. In addition, he alleges that
Jones (the confidential informant) testified that he recorded video surveillance
during the October 29, 2010 transaction. Id. The plaintiff appears to
acknowledge that the property reports for the controlled buys shows that these
videos existed. Id. He argues, however, that the operational plan prepared for
the October 29 controlled buy provides for different officers—Brodbeck and
Scanlan—to do the video surveillance, and that there are no recordings from
those two agents (and none from them sent to the DA). Id. at 17. The plaintiff’s
brief goes into great detail about all of the reasons that the fact that the
operational plan doesn’t match up with the testimony given by these and other
defendants proves that they fabricated evidence. Id. at 17-26.
Operational plans are just that—plans. They outline what the DTF plans
to do at a particular point in time. Dkt. No. 250 at 11. They do not mandate
what will happen—they can’t, because things change. Officers get sick, or have
to be off work, or get reassigned. Suspects don’t show up, or show up
somewhere unexpected. Recording equipment fails. Informants have to change
plans as the situation on the ground changes. Any of these things—and a
hundred more—can result in plans changing. As the poet Robert Burns wrote,

36

“The best-laid schemes o’ Mice an’ Men, Gang aft agley”8—meaning, the bestlaid plans often go awry.
More to the point, the plaintiff again has failed to provide any evidence to
support his claims that the defendants fabricated anything. And, if the plaintiff
had submitted admissible evidence demonstrating that the defendants had
fabricated evidence, the plaintiff cannot allege that he was injured by such
fabrication. The only injury he could allege would be that the allegedly
fabricated evidence resulted in an invalid conviction or sentence, and again, he
cannot challenge his conviction or sentence via a §1983 suit.
In attempting to avoid the mandate of Heck, the plaintiff appears to
argue that the plaintiffs fabricated evidence, but that the fact that they did so
was not exculpatory. If that is, indeed, his argument, it must fail for another
reason. A §1983 plaintiff cannot bring a constitutional challenge to a state
action if he has a remedy for that action under state law. McCann v.
Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). Under Wisconsin law, the
plaintiff could bring a claim that the defendants manufactured evidence, which
they transmitted to the DA in support of their request that he be prosecuted on
drug charges; that would be a claim for malicious prosecution. See id. (citing
Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001)); see also Saunders-El v.
Rohde, 778 F.3d 556, 560 (7th Cir. 2015). Wisconsin recognizes the tort of
malicious prosecution. See, e.g., Segall v. Hurwitz, 114 Wis. 2d 471, 488 (Ct.
App. 1983); Turner v. Sanoski, 327 Wis. 2d 503, 509 (Ct. App. 2010).

8

 “To a Mouse, On Turning Her Up In Her Nest With the Plough,” by Robert

Burns.
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c.

Failure to create a policy requiring the stripsearch of confidential informants

In his original complaint, the plaintiff alleged that Poteat, Hackett, and
Shepardson violated his Fourteenth Amendment rights by failing to stripsearch informants before they participated in controlled buys, and by failing to
establish a policy to conduct such strip searches. Dkt. No. 1 at 25-26. While it
is difficult to be sure, it appears that his amended complaint made the same
allegations against Hackett and Shepardson. Dkt. No. 7 at 11. His second
amended complaint did not cite to a constitutional provision, but alleged that
the DTF failed to implement a policy requiring that confidential informants be
strip-searched; the caption to this claim reads, “Denial of Due Process
Unconstitutional DTF No Strip Search of ‘CI’ Policy.” Dkt. No. 21 at 17-19. The
third amended complaint alleges that DTF should have created the policy. Dkt.
No. 36 at 19. The fourth amended complaint appears to direct this claim to
Brown County, the DTF and “participating municipalities.” Dkt. No. 184 at 17.
The plaintiff’s claim cannot survive summary judgment, regardless of
which defendants he intended to include in it. In contrast to his argument that
the defendants violated the Fourteenth Amendment by failing to follow their
policies, the plaintiff argues here that the defendants violated the Fourteenth
Amendment by failing to establish a policy—in this case, a policy requiring DTF
officers to strip-search informants before allowing them to participate in
controlled buys. Presumably, the concern the plaintiff believes such a policy
would address is the concern that an informant might “plant” drugs on an
innocent person, or might bring drugs to the transaction himself but then lie to
38

law enforcement, telling the officers that the innocent person had provided the
drugs. This concern is similar to a concern that law enforcement—or an
informant—might fabricate evidence against an innocent party. The Seventh
Circuit has held that, under some circumstances, a claim of evidence
fabrication can violate a defendant’s due process rights. Saunders-El v. Rohde,
778 F.3d 556, 560 (7th Cir. 2015).
But just as the plaintiff does not have a Fourteenth Amendment right to
rely on the defendants to always follow their own policies, he does not have a
Fourteenth Amendment right to have the defendants create policies, or even to
engage in “best practices.” The plaintiff argued in his fourth amended
complaint that other municipalities had policies requiring officers to stripsearch informants. Dkt. No. 184 at 16. The fact that other municipalities strip
search confidential informants does not mean that the Constitution requires
that procedure. The Supreme Court has stated that “[i]n defining the process
necessary to ensure ‘fundamental fairness’ we have recognized that the [due
process] Clause does not require that ‘the procedures used to guard against an
erroneous deprivation . . . be so comprehensive as to preclude any possibility of
error.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 320 (1985)
(citation omitted). The Court also “emphasized that the marginal gains from
affording an additional procedural safeguard often may be outweighed by the
societal cost of providing such a safeguard.” Id. at 320-321 (citation omitted).
In this case, DTF officers did follow their policy for preventing informants
from fabricating evidence. Following DTF 06, “Procedures” §5(c) (“An informant
39

that will be used in undercover operations to purchase evidence shall be
searched before and after each contact with the suspect”), dkt. no. 133-5 at 3,
officers pat-searched CI 1395 before and after each transaction. At no time
during the pendency of investigation #10-0269 did DTF officers have any
reason to believe or suspect that CI 1395 was hiding contraband on his person
such that a strip search would be necessary. If they had, DTF policies would
not have prevented them from strip-searching him. The plaintiff has not
produced evidence demonstrating that CI 1395 fabricated evidence, or that a
strip-search policy would have revealed that CI 1395 fabricated evidence. The
plaintiff’s belief that a strip-search policy would be a “best practice” for
preventing evidence fabrication does not support his claim that the lack of
such a policy violated his Fourteenth Amendment rights.
d.

Alleged failure to follow citizen complaint
procedure

In his fourth amended complaint, the plaintiff alleged that Brown
County, DTF, “participating municipalities,” and Poteat violated Wis. Stat.
§66.0511(3)9, and thus denied him due process. Dkt. No. 184 at 10. Wis. Stat.
§66.0511(3) requires “each person in charge of a law enforcement agency” to
prepare a written procedure “for processing and resolving a complaint by any
person regarding the conduct of a law enforcement officer employed by the
agency,” and to make that written policy available to the public. The plaintiff
alleges that the defendants denied citizens the ability to participate in the

9

  That statute was repealed in part and renumbered by 1999 Act 150 §§151 to

153, eff. Jan 1, 2001.
40

complaint procedure, because he wrote a complaint and never received a
response. Id.
The plaintiff’s claim regarding the complaint procedure is based on the
same theory as his claim about the defendants’ record-keeping procedures: a
claim that the defendants failed to follow their own policies. Defendant Poteat
provided evidence, in the form of a screen-shot of a page from the Brown
County Sheriff’s Department web site, that the Brown County Sheriff’s
Department has a written citizen complaint procedure of the kind mandated by
Wis. Stat. §66.0511(3). Dkt. No. 133-7. There is no genuine dispute regarding
the material fact that Brown County had such a procedure; thus, there is no
genuine dispute regarding whether the Brown County Sheriff’s Department
violated state law. It did not.
The plaintiff alleges that he first enquired about how to make a citizen
complaint on October 19, 2011, while he was incarcerated at the Brown
County Jail. Dkt. No. 184 at 9. He says that the jail staff did not know how
people could make citizen complaints, but suggested that he contact a
lieutenant and a captain at the sheriff’s department. Id. The next day, the
plaintiff wrote a complaint and sent it to the lieutenant and the captain by
certified mail. Id.; dkt. no. 22 at 18 (copy of complaint); dkt. no. 22 at 21
(certified mail receipts). He alleges that he never received a response, dkt. no.
184 at 10, and that the fact that he didn’t receive a response violated his due
process rights.

41

The plaintiff is correct that Wisconsin law required the Brown County
Sheriff’s Department to have a written complaint process. But he has provided
no evidence that the department violated that law, and defendant Poteat has
provided evidence that the department complied with the law. The plaintiff’s
actual argument is that the department did not follow its own complaint
procedure, because it did not respond to the complaint he filed. This argument,
like his others, has no merit.
As with his previous claims, the plaintiff has provided no evidence that
the defendants did not comply with their own citizen complaint procedure. The
procedure gives a citizen several ways to make a complaint: calling one of two
telephone numbers; visiting the sheriff’s department and telling the person at
the front desk the citizen wants to file a complaint; asking for a citizen
complaint form; and obtaining the complaint form from the web site. Dkt. No.
133-7 at 1. Regardless of which method the citizen chooses, the procedure
informs citizens that they must “complete and have notarized the Affidavit form
which is the last part of the complaint.” Id.
Although the plaintiff did have someone notarize the document he
created, which he captioned “Complaint Concerning DTF, deliberate
indifference,” dkt. no. 22 at 18, 20, the plaintiff did not complete, or have
notarized, the required affidavit form. The defendants state that if a complaint
doesn’t follow the required form, the Sheriff’s Department does not consider it a
formal complaint, and does not “track[] or maintain[]” it. Dkt. No. 125 at 29,
¶¶209-210.
42

One could argue that the plaintiff couldn’t follow the citizen complaint
procedures, because he didn’t know what they were. He was in jail and couldn’t
access the web site. When he asked jail staff about the procedure, they did not
know it, either, but suggested that he contact two members of the sheriff’s
department staff. The plaintiff did what the jail staff suggested, so one could
argue that the plaintiff did the best he could in a circumstance in which he did
not know, and did not have access to, the proper procedure.
Even if the court assumes that the sheriff’s department should have
accepted the plaintiff’s complaint under these circumstances, he has not
demonstrated that the sheriff’s department violated the complaint procedure by
failing to respond to him. The procedure does not require the department to
provide a complaining citizen with a response. The web site explains that less
severe complaints may be handled by the offending employee’s supervisor,
while more severe complaints will be “referred to the Professional Standards
Division of the department for investigation.” Dkt. No. 133-7. It also explains
that in the case of an investigation, a “final report” is submitted (it does not say
to whom) once the investigation is over, and the “Chief Deputy will review for
completeness.” Id. If the chief deputy thinks it is appropriate, he or she will
“recommend corrective measures such as directing the employee’s future
actions, training, and/or discipline.” Then, the investigation goes to the sheriff
“for final review and approval.” Id. While the complaint procedure describes the
actions that the sheriff’s department may take about an employee who is the

43

subject of a citizen complaint, it does not provide the complaining citizen with
any right to a response.
The evidence the defendants have submitted shows that the defendants
did have the statutorily-required complaint procedure. It shows that the
plaintiff, not the defendants, failed to follow that procedure. And the plaintiff
has provided no evidence that the procedure entitled him to receive a response
to the complaint he sent.
Finally, the court already has discussed the fact that the plaintiff does
not have a Fourteenth Amendment right to rely on the defendants adhering to
their policies. Even if the court could find that the sheriff’s department should
have accepted his complaint, and even if the citizen complaint procedure had
required the sheriff’s department to respond to the plaintiff with regard to his
complaint, he does not have a Fourteenth Amendment due process right to rely
on the defendants to follow that procedure.
e.

Standing

Given the plaintiff’s repeated claims that he is not alleging that the
defendants’ actions injured him by causing him to be wrongfully convicted or
sentenced, there is some question as to whether the plaintiff has standing to
bring any of the above claims. A person who asks a federal court for relief must
show that he has “standing” under Article III of the Constitution—in other
words, that there is a actual “case or controversy” for the court to decide.
Sanner v. Bd. of Trade of City of Chicago, 62 F.3d 918, 922 (7th Cir. 1995)
(citation omitted). The Supreme Court has held that this “irreducible
44

constitutional minimum of standing” has three components. First, the plaintiff
“must have suffered ‘an injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) ‘actual or imminent,
not “conjectural” or “hypothetical.”’” Lujan v. Defenders of Wildlife, 504` U.S.
555, 560 (1992) (citations omitted). Second, the plaintiff must be able to show
a “causal connection between the injury and the conduct complained of . . . .”
Id. (citations omitted). Third, there must be a likelihood that the court could
address the injury with a decision in the plaintiff’s favor. Id. (citation omitted).
Over the course of the plaintiff’s pleadings, he argues a number of times
that the defendants violated his rights by failing to follow policies, or by failing
to enact them. The court has found above that the plaintiff does not have a
constitutional right to rely on the defendants to follow certain policies, and that
he does not have a constitutional right to have them create policies. Because
he has no such right—no “legally protected interest” which the defendants
invaded—there is a question about whether the plaintiff has asserted that he
suffered a concrete, particularized injury.
The plaintiff also implies that the defendants’ alleged failure to follow
policies, or to create them, has—or could—injure others. He asserts that he
raises these claims, not to contest his conviction, but to use his criminal case
to demonstrate the defendants’ failings. This implies that he is making his
claims in an attempt to prevent future injuries to others. It is “substantially
more difficult” for a plaintiff to establish standing when he “himself” is not “the
object of the government action or inaction.” Lujan, 504 U.S. at 562 (quoting
45

Allen v. Wright, 468 U.S. 737, 758 (1984)). The plaintiff’s implication that he is
pointing out the defendants’ failures for the common weal is not sufficient to
give him standing to sue on behalf of others. He has not alleged that he has
any authority to act on behalf of anyone else.
Because standing is a requirement of federal court jurisdiction, the court
normally would begin its analysis by determining whether the plaintiff had
standing; if it concluded that he did not have standing, the court would
dismiss the case for lack of jurisdiction without analyzing the merits of the
plaintiff’s claims. The court has not proceeded in that fashion in this case,
because portions of the plaintiff’s pleadings belie his protestations that he is
not seeking to attack his conviction or his sentence. If the plaintiff truly means
it when he says that the defendants’ failures did not result in a wrongful
conviction or sentence, it is not clear that he has standing. If he does not mean
it, he may have standing, but his claims are Heck-barred.
3.

The court does not need to reach the question of whether the
defendants are entitled to qualified immunity.

The defendants argued in their original joint brief that “to the extent that
any of plaintiff’s claims could be read as an allegation that the defendants did
not have probable cause to arrest him, the defendants are entitled to
immunity.” Dkt. No. 124 at 28. The plaintiff has not asserted that the
defendants did not have probable cause to arrest him; if he had, that claim
would have been Heck-barred. The court, therefore, does not need to analyze
whether the defendants would have been entitled to immunity if he had made
that argument.
46

4.

Defendant Jujuan Jones

Defendant Jujuan Jones is CI 1395. The plaintiff named Jones as a
defendant in his original, May 30, 2013 complaint (dkt. no. 1); in his June 13,
2013 first amended complaint (dkt. no. 7); in his January 10, 2014 second
amended complaint (dkt. no. 21); in his April 25, 2014 third amended
complaint (dkt. no. 36); and in his June 19, 2015 fourth amended complaint
(dkt. no. 184). He did not name Jones in the January 10, 2014 amended
complaint (dkt. no. 21). None of the complaints specifically state what the
plaintiff believes that Jones did to violate his constitutional rights, although he
says in the June 19, 2015 fourth amended complaint that the actions of
various defendants (including Jones) “by fabricating digital evidence in effort to
obtain a conviction” violated his due process rights. Dkt. No. 184 at 19.
On June 29, 2015, the U.S. Marshals service served the plaintiff’s
complaint (it is not clear which version; likely the June 19, 2015 fourth
amended version) on someone named Keyvonia Pope, at 4854 North 47th
Street in Milwaukee. Dkt No. 210. The court does not know whether this was
Jones’ residence, or whether the person the marshals served was related in any
way to Jones. It may be that Jones never has received the plaintiff’s complaint,
and is not aware that the plaintiff has sued him.
To the extent that the plaintiff meant to include Jones in his claim that
the defendants fabricated evidence (Dkt. No. 184 at 19), the court has found
that that claim has no merit. Thus, despite the fact that Jones has not

47

answered the complaint, and might not even be aware that the plaintiff has
sued him, the court will dismiss Jones along with the other defendants.
IV.

CONCLUSION
The court GRANTS the Brown County defendants’ amended motion for

summary judgment. Dkt. No. 226.
The court GRANTS the City of Green Bay defendants’ renewed motion for
summary judgment. Dkt. No. 235.
The court GRANTS the Village of Ashwaubenon amended motion for
summary judgment. Dkt. No. 233/226.
The court DISMISSES defendant Jujuan Jones.
Dated in Milwaukee, Wisconsin this 13th day of March, 2017.

48