Driggers v. Schmaling et al

Filing 53

ORDER Granting Defendants Hastings and Smith's Motion to Dismiss 18 , Granting Defendants Schmaling and Wearing's Motion to Dismiss 29 , Denying Plaintiff's Motion for Default Judgment 34 , Denying Plaintiff's Motion for Court to Take Judicial Notice 35 , Denying as Moot Plaintiff's Motion to Stay Time Limits to File Response and Motion for Order to Serve Plaintiff with Documents 40 , Denying Plaintiff's Motion to Appoint Counsel 49 and Dismissing Case. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DEVLON L. DRIGGERS,
Plaintiff,
v.

Case No. 13-C-1289

CHRISTOPHER SCHMALING,
MATTHEW HASTINGS,
NANCY SMITH, and
DOUGLAS WEARING,
Defendants.

ORDER GRANTING DEFENDANTS HASTINGS AND SMITH’S MOTION TO DISMISS
(DOC. 18), GRANTING DEFENDANTS SCHMALING AND WEARING’S MOTION TO
DISMISS (DOC. 29), DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
(DOC. 34), DENYING PLAINTIFF’S MOTION FOR COURT TO TAKE JUDICIAL
NOTICE (DOC. 35), DENYING AS MOOT PLAINTIFF’S MOTION TO STAY TIME
LIMITS TO FILE RESPONSE AND MOTION FOR ORDER TO SERVE PLAINTIFF
WITH DOCUMENTS (DOC. 40), DENYING PLAINTIFF’S MOTION TO APPOINT
COUNSEL (DOC. 49), AND DISMISSING CASE
The pro se plaintiff, Devlon L. Driggers (Driggers), who is incarcerated at Oshkosh
Correctional Institution, has filed this civil rights action pursuant to 42 U.S.C. § 1983 and
was granted leave to proceed in forma pauperis. Defendants Racine County Sheriff
Christopher Schmaling (Sheriff Schmaling) and Captain Douglas Wearing (Captain
Wearing) have filed a motion to dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). Defendants Racine County Assistant District Attorney Matthew
Hastings (ADA Hastings) and Probation/Parole Agent Nancy Smith (Agent Smith), who are
represented by separate counsel, have also filed a motion to dismiss for failure to state a
claim. For the reasons set forth herein, the motions will granted.

STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint
to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Rule
12(b)(6) requires a plaintiff to clear two hurdles. EEOC v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007). First, the complaint must describe the claim in sufficient
detail to give a defendant fair notice of the claim and the grounds on which it rests. Id.
Although specific facts are not necessary, “at some point the factual detail in a complaint
may be so sketchy that the complaint does not provide the type of notice of the claim to
which the defendant is entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT&T
Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007). Second, the complaint must set forth a
claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955, 1974 (2007); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616,
625 (7th Cir. 2007). The “allegations must plausibly suggest that the plaintiff has a right
to relief, raising that possibility above a ‘speculative level’; if they do not, the plaintiff pleads
itself out of court.” EEOC, 496 F.3d at 776 (citing Bell Atl. Corp., 550 U.S. at 555-56, 569
n.14 (2007)). When considering a Rule 12(b)(6) motion, the court must construe the
complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts
and drawing all possible inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008).
BACKGROUND OF THE CASE
According to the complaint, on May 16, 2013, Driggers was arrested in Racine
County, Wisconsin for domestic violence, misdemeanor battery. (Compl. ¶ IV.A.1.) On
May 17, 2013, as a condition of being released on bond, Driggers was ordered to have no
2

contact with the alleged crime victim. (Compl. ¶ IV.A.2.) Driggers was placed on a
probation hold by the Wisconsin Department of Corrections (DOC), did not make bond,
and remained in jail. (Compl. ¶ IV.A.3.) Between May 17, 2013, and June 6, 2013,
Driggers had personal contact and telephone contact with the alleged crime victim.
(Compl. ¶ IV.A.4.)
On June 3, 2013, Agent Smith informed Driggers that he was violating the nocontact condition of his bond by continuing to have contact with the alleged crime victim.
(Compl. ¶ IV.A.5.) Driggers responded that under Wisconsin law, the no-contact condition
of a bond does not apply if the accused does not post bond and is not released from
custody.1 Id. Driggers also told Agent Smith that the alleged crime victim had expressed
her desire to see Driggers, and that she told Driggers to call and to write to her. Id. Agent
Smith responded that she believed that the no-contact condition of the bond did apply, that
she would get Driggers’s visitation privileges stopped, that she had listened to recordings
of the calls between Driggers and the alleged crime victim, and that she had talked to ADA
Hastings about possible charges and/or punishment because of the calls that Driggers
made in violation of the no-contact condition. (Compl. ¶ IV.A.6.)
On June 3, 2013, Agent Smith inquired of ADA Hastings, by email, whether the nocontact condition of the bond applied where Driggers had not posted bond. Id. Agent

1
In State v. Orlik, 226 W is. 2d 527, 538-540, 595 N.W .2d 468 (Ct. App. 1999), the court of appeals
held that W is. Stat. §§ 969.01(4), 969.03(1)(e), and 969.08(1) authorize a state trial court to im pose conditions
that govern a defendant when released from custody on bond, but do not authorize “orders governing the
defendant’s conduct if he is not released because he cannot post bail.” The court of appeals, however,
recognized that the trial court and the State m ay be “understandably concerned about the trial court’s ability
to protect victim s and potential witnesses from threats or intim idation even when a defendant rem ains
incarcerated pending trial,” and pointed out that W is. Sat. § 940.47 authorizes a trial court to issue orders
protecting victim s and witnesses from incarcerated defendants pending trial. See id.

3

Smith falsely told ADA Hastings that Driggers stated that he would not abide by any nocontact provision from any court, that the alleged crime victim wanted no further contact
with Driggers, and that she was afraid of him.2 (Compl. ¶¶ IV.A.7, 8).
Agent Smith and ADA Hastings (working in his investigative and administrative
capacity) listened to the telephone calls between Driggers and the alleged crime victim.
(Compl. ¶ IV.A.10.) On June 4, 2013, when ADA Hastings told Captain Wearing that he
would seek to prevent Driggers from having contact with the alleged crime victim, Captain
Wearing informed ADA Hastings that Driggers would be placed in administrative
segregation in the jail if the court signed an order restricting his telephone calls. (Compl.
¶ IV.A.11.)
On June 4, 2013, ADA Hastings filed a motion with the circuit court under Wis. Stat.
§ 940.47(4)3 , for an order prohibiting all communication between Driggers and the alleged
crime victim, including restrictions on visitation, telephone contact, mail, and

2
Agent Sm ith also “beguiled” the alleged crim e victim into believing that she had “broken” the nocontact order, told the alleged crim e victim that she and ADA Hastings were going to do their best to send
Driggers to prison, and threatened the alleged crim e victim with arrest if she did not “write a statem ent to that
effect.” (Com pl. ¶ IV.A.9.)
3

W isconsin Statute 940.47, provides:

Any court with jurisdiction over any crim inal m atter, upon substantial evidence, which m ay
include hearsay or the declaration of the prosecutor, that knowing and m alicious prevention
or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably
likely to occur, m ay issue orders including but not lim ited to any of the following:
(1) An order that a defendant not violate ss. 940.42 to 940.45.
(2) An order that a person before the court other than a defendant, including, but not lim ited
to, a subpoenaed witness or other person entering the courtroom of the court, not violate
ss. 940.42 to 940.45.
(3) An order that any person described in sub. (1) or (2) m aintain a prescribed geographic
distance from any specified witness or victim .
(4) An order that any person described in sub. (1) or (2) have no com m unication with any
specified witness or any victim , except through an attorney under such reasonable
restrictions as the court m ay im pose.

4

communication through a third party such as another inmate, except for Driggers’s
attorney, while Driggers remained in jail during the prosecution of his criminal case.
(Compl. ¶ IV.A.12.) Although not expressly mentioning “administrative segregation,” the
motion requested, and a proposed order drafted by ADA Hastings required, that Driggers
be confined in a location where Sheriff Schmaling and the DOC could ensure strict
adherence to the order and absolutely restrict Driggers’s communication with the alleged
crime victim.4 (Compl. ¶ IV.A.13). Driggers alleges that Agent Smith’s “false assertions”
and “blatant lies” were the “substance and center” of the motion and proposed order
(Compl. ¶ IV.A.15).
On June 6, 2013, Racine County Circuit Court Judge Faye M. Flancher heard the
motion over Driggers’s objection to proceeding without counsel, after the court permitted
Driggers’s attorney to withdraw, and after ADA Hastings argued that the motion should be
heard even if Driggers was not represented.5 (Compl. ¶¶ IV.A.14-16.) The circuit court
denied Driggers’s request for substitution of judge. (Compl. ¶ IV.A.17.) ADA Hastings
conceded, on the record, that the no-contact condition of the bond did not apply because
Driggers was not released from custody. (Compl. ¶¶ IV.A.18.) ADA Hastings argued in
favor of a no-contact order under Wis. Stat. § 940.47(4), however, because of (1) the
numerous contacts between Driggers and the alleged crime victim, (2) Driggers’s attempt

4

The court takes judicial notice of the m otion and order which are official state court records in State
of W isconsin v. Devlon Driggers, Racine County Circuit Court Case Nos. 2013-CM-0819, 1011, and 1039.
See Affidavit of David C. Rice (Rice Aff.), ¶¶ 2-3, Exhs. A, B. See Fed. R. Evid. 201; see also Henson v. CSC
Credit Serv., 29 F.3d 280, 284 (7th Cir. 1994); Gen. Elec. Capital v. Lease Resolution, 128 F.3d 1074, 10801082 (7th Cir. 1997).
5

The court takes judicial notice of the transcript of the m otion hearing which is an official state court
record in State of W isconsin v. Devlon Driggers, Racine County Circuit Court Case Nos. 2013-CM-0819, 1011,
and 1039. See Rice Aff. ¶ 4, Exh. C.

5

to persuade her to recant her statement to police, and (3) Driggers’s criminal history of
domestic violence and prior attempts to persuade crime victims not to report crimes to
police or to recant statements made to police, including the alleged crime victim in his case
less than six months earlier.6 (Compl. ¶¶ IV.A.18-19.) Driggers alleges that ADA Hastings
stated at the motion hearing that he desired to “punish” Driggers for violating an order that
did not exist (Compl. ¶ IV.A.18), but the transcript of the hearing does not contain the
statement attributed to ADA Hastings by Driggers.7 See Rice Aff. ¶ 4, Exh. C.
The circuit court granted the State’s motion, except with respect to the restrictions
on mail, and orally ruled that all of Driggers’s telephone calls be restricted (except calls to
his attorney), that he have no contact with the alleged crime victim (including by mail), that
no third persons (including his mother) were to contact the victim, and that Driggers be
placed in “administrative segregation.”8 (Compl. ¶ IV.A.19). Driggers was placed in
administrative segregation, was allowed out of his cell only one hour each day, and was
restricted from making calls to his family or friends. (Compl. ¶ IV.A.20.)
Driggers filed a petition for a writ of habeas corpus in the Wisconsin Court of
Appeals against Sheriff Schmaling and for a supervisory writ against the Racine County

6

ADA Hastings noted that Driggers had m ade a m inim um of 157 calls to the cell phone of the alleged
crim e victim since the date of the initial appearance, and that, in the telephone calls (som e of which were
heard by the circuit court), Driggers tried to m anipulate the crim e victim to lie about the alleged crim e. See
Rice Aff. ¶ 4, Exh. C, at 4, 8.
7

ADA Hastings did state: “I think it’s tim e that we put som e teeth behind this no contest order and at
a m inim um order him under that statute listed in the m otion that he is to have absolutely no contact.” (Rice
Aff. ¶ 4, Ex. C at 4.)
8

The circuit court’s written order, drafted by ADA Hastings, did not expressly m ention “adm inistrative
segregation” but it did require that Driggers be confined in a location where Sheriff Schm aling and DOC could
ensure strict adherence to the order and absolutely restrict Driggers’s com m unication with the alleged crim e
victim . (Com pl. ¶ IV.A.13.) See Rice Aff. ¶ 3, Exh. B.

6

Circuit Court. (Compl. ¶¶ IV.A. 21, 27.) On August 22, 2013, the court of appeals entered
an opinion and order denying the petitions.9 (Compl., ¶ IV.A. 21). The court of appeals
decided that the restrictions imposed by the circuit court were reasonably and necessarily
imposed, after a hearing, to protect the alleged crime victim and to safeguard the integrity
of the prosecution.

The court of appeals further decided that Driggers had not

demonstrated a denial of due process or other constitutionally-protected rights, and that
Driggers had other available remedies such as a petition for leave to appeal from the order
of the circuit court. (Rice Aff. ¶ 5, Exh. D.)
Captain Wearing informed Driggers that only his telephone privileges – and not his
mail or visitation privileges – were restricted per the court order. (Compl. ¶ IV.A.23.)
Driggers alleges that the mail he sent to his mother was seized by the jail and that he was
subjected to loud noise while in administrative segregation which interrupted his sleep.
(Compl. ¶¶ IV.A. 24, 25, 30.) He also alleges that during his time on administrative
segregation, his phone was turned off so he could not access the court or call his family.
(Compl. ¶¶ IV.A. 26, 29, 30.) Driggers further alleges that, because Sheriff Schmaling was
named in the writ of habeas corpus before the Wisconsin Court of Appeals, he had direct
knowledge of any unconstitutional restrictions and punishments. (Compl. ¶¶ IV.A. 27, 28.)
For relief, Driggers seeks $1,000,000 punitive damages, $1,000,000 for pain and
suffering, and $1,000,000 for emotional psychological distress. He also seeks injunctive

9

The court takes judicial notice of the opinion and order of the W isconsin Court of Appeals which is
an official state court record in State ex rel. Devlon Driggers v. Christopher Schmaling, No. 2013AP1340-W ,
and State ex rel. Devlon Driggers v. Circuit Court for Racine County, No. 2013AP1341-W . See Rice Aff. ¶ 5,
Exh. D.

7

relief against Sheriff Schmaling and ADA Hastings “requesting that no further treatment be
done in this matter, be distributed to any other inmate of this nature.” (Compl. ¶ V.)
The Screening Order summarized the complaint allegations and permitted Driggers
to proceed as follows:
The court finds that the foregoing allegations state retaliation and
equal protection claims as well as due process concerns arising from the
alleged punitive placement of plaintiff in segregation at the Racine County
Jail. Moreover, this case may proceed on plaintiff’s First Amendment claim
regarding his mail. Finally, the court notes that the complaint appears to
challenge a Wisconsin state court order. However, such claims face scrutiny
under the Rooker-Feldman doctrine. See Brown v. Bowman, 668 F.3d 437,
442 (7th Cir. 2012) (“Rooker-Feldman prevents the lower federal courts from
exercising jurisdiction over cases brought by state-court losers challenging
state-court judgments rendered before the district court proceedings
commenced.”). But, at this stage of plaintiff’s case, the court cannot
definitively ascertain whether Rooker-Feldman applies.
(Court’s Order of April 18, 2014, at 7.)
HASTINGS AND SMITH’S MOTION TO DISMISS
ADA Hastings and Agent Smith first contend that Driggers’s claims for damages
against them in their official capacities are barred by Eleventh Amendment immunity. In
regard to the official capacity claims, a suit against a state official in his or her official
capacity is a suit against the official’s office. As such, it is not different than a suit against
the state itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Driggers’s
official capacity claims against Hastings and Smith are therefore claims against the state.
However, the Eleventh Amendment bars suits for damages in federal court against
unconsenting states unless Congress has exercised its power to override the immunity.
Id. at 66.

Therefore, to the extent that Driggers seeks compensatory and punitive

damages, his official capacity claims must be dismissed because of Eleventh Amendment

8

immunity and because the state is not a person suable under 42 U.S.C. § 1983. See id.
at 66-67, 71.
Next, ADA Hastings and Agent Smith contend that Driggers’s action against
Hastings is barred by absolute prosecutorial immunity except when Hastings investigated
Driggers’s contacts with the alleged crime victim. They concede that ADA Hastings was
working in his investigative capacity when he investigated Driggers’s contacts with the
alleged crime victim and that actions based on such investigations are not barred by
absolute prosecutorial immunity.10 In response, Driggers contends that ADA Hastings fails
to admit that his conversations with Agent Smith and Captain Wearing as well as their
plans to punish Driggers were done in his investigatory capacity. According to Driggers,
the “intricate plot was brought to fruition by misusing the state court process[ ]” and
“Hastings can’t immunize himself by perfecting his actions in the trial court.” (Pl.’s Resp.,
ECF No. 36, at ECF-numbered page 4.)11 Driggers goes on to state that at the hearing on
the motion, ADA Hastings “willfully admitted that he ha[d] spoken with the jail and
discussed the plot with jail staff, defendant Wearing, and wrote his desire in the proposed
order to assure his plot would be mete[d] out, which was torture in Racine County Jail” and
that “these officials targeted him out and treated him differently than other pretrial
detainees.” Id. According to Driggers, ADA Hastings is not protected by absolute
prosecutorial immunity for his actions in court, citing Tillman v. Burge, 813 F. Supp. 2d 946,

10

Hastings and Sm ith contend that these claim s are barred by qualified im m unity and that contention
will be addressed in the next section.
11

Driggers num bered his brief with page one starting on the second page. For the sake of clarity and
consistency, the court will use the court’s electronic case filing (ECF)-generated page num bers which
designates the first page of the brief as page one, the second page as page two, etc.

9

966-67 (N.D. Ill. 2011) (prosecutor was not entitled to absolute immunity from § 1983 suit
by a former prisoner who served nearly twenty-four years in prison for rape and murder
before his conviction was vacated and charges were dismissed, and the complaint the
prosecutor was alleged to have personally participated in the prisoner’s interrogation and
that of the codefendant, then suppressed truth concerning those events. These allegations
put the prosecutor’s conduct outside the scope of the prosecutorial function).
Recently, the Seventh Circuit Court of Appeals reiterated the scope of absolute
prosecutorial immunity:
A prosecutor is absolutely immune from suit for all actions and
decisions undertaken in furtherance of his prosecutorial duties. Imbler v.
Pachtman, 424 U.S. 409, 410, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
Whether or not an action falls within the scope of his prosecutorial duties
depends upon its function. See Van de Kamp v. Goldstein, 555 U.S. 335,
342-43, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (citing Burns v. Reed, 500
U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). The analysis
hinges on whether the prosecutor is, at the time, acting as an officer of the
court, as well as on his action’s relatedness to the judicial phase of the
criminal process. Imbler, 424 U.S. at 430, 431 n. 33, 96 S.Ct. 984.
Absolute immunity extends beyond an individual prosecutor’s decision
to indict or try a case. See Van de Kamp, 555 U.S. at 344-48, 129 S.Ct. 855.
The protection endeavors to preserve the functioning of the public office, id.
at 345, 129 S.Ct. 855 (citing Kalina v. Fletcher, 522 U.S. 118, 125, 118 S.Ct.
502, 139 L.Ed.2d 471 (1997)), and, thus, encompasses any action directly
relevant to a prosecutor’s ability to conduct a trial. Id. at 344, 129 S.Ct. 855
(distinguishing between administrative actions like training prosecutors on
properly disclosing to the defense material evidence, which are shielded as
prosecutorial functions, and administrative decisions such as workplace
hiring and facilities management, which do not fall within the ambit of
absolute immunity).
Nevertheless, a prosecutor has job responsibilities that are not
prosecutorial in nature. There exists a “difference between [his] advocate’s
role in evaluating evidence and interviewing witnesses as he prepares for
trial . . . and [his] detective’s role in searching for the clues and corroboration
that might give him probable cause to recommend that a suspect be arrested
. . . .” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125
10

L.Ed.2d 209 (1993) (“Buckley III”). Actions and decisions made in
accordance with the latter set of responsibilities entitle him only to the
qualified immunity granted to the police and other members of the
prosecution team who share those duties. Id. (citing Hampton v. Chicago,
484 F.2d 602, 608 (7th Cir. 1973)).
Fields v. Wharrie, 672 F.3d 505, 510-11 (7th Cir. 2012).
In his complaint, Driggers charges that ADA Hastings engaged in the following acts:
(1) he listened to telephone calls between Driggers and the alleged crime victim; (2) he
filed a motion seeking to prohibit all communication between Driggers and the alleged
crime victim, including restrictions on visitation, telephone contact, mail, and
communication through a third party such as another inmate, except for Driggers’s
attorney, while Driggers remained in jail during the prosecution of his criminal case; (3) he
deprived Driggers of his constitutional right to counsel when he argued at the motion
hearing that the court should hear the motion even though Driggers was not represented
by counsel; (4) he argued in favor of the motion even though he conceded that Driggers
had not violated the no-contact condition of his bond (because he remained in custody and
was not released on bond); and (5) he drafted the written order that the court signed,
restricting Driggers’s communication with the alleged crime victim.
Here, ADA Hastings’s filing of the motion to restrict Driggers’s communications with
the alleged crime victim, his participation in the hearing on the motion, and his drafting of
orders for the court were protected by absolute prosecutorial immunity. See Imbler, 424
U.S. at 423. It is true that a prosecutor cannot retroactively receive absolute prosecutorial
immunity for unlawful conduct during an investigation, simply by presenting evidence
resulting from the investigation at trial. See Fields v. Wharrie, 740 F.3d 1107, 1111-1114
(7th Cir. 2014). However, ADA Hastings’s investigatory conduct was not unlawful. Cf. id.
11

at 1110 (during an investigation, prosecutor coerced witnesses to give false or fabricated
testimony at trial); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982) (prosecutor personally
ordered that pretrial detainee be confined in dirty, bug-infested jail under offensive
conditions); Tillman, 813 F. Supp. 2d at 965-66 (N.D. Ill. 2011) (prosecutor personally
participated in unconstitutional interrogation and coerced the defendant to give a false
confession). Rather, as will be discussed herein, ADA Hastings’s (and Agent Smith’s)
investigation of Driggers’s contacts with the alleged crime victim are subject to qualified
immunity because their alleged activities did not violate a clearly established constitutional
right.
Hastings and Smith contend that this action against Smith as well as against
Hastings based on actions that were undertaken in his investigatory capacity is barred by
qualified immunity. They further contend that Driggers fails to state a conspiracy claim.12
Qualified immunity “protects government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks omitted). In determining qualified immunity, the court asks two
questions: (1) whether the facts, taken in the light most favorable to the plaintiff, make out
a violation of a constitutional right and (2) whether that constitutional right was clearly
established at the time of the alleged violation. Id. at 232. Courts may exercise discretion
in deciding which question to address first. Id. at 236.

12

Hastings and Sm ith also subm it that this action is barred by the Rooker-Feldman doctrine or claim
preclusion. However, Driggers asserts that he is not challenging the court’s order but rather the independent
claim s the state court failed to rem edy. Thus, the court will not address this argum ent.

12

Regarding Agent Smith Driggers contends: (1) Agent Smith told Driggers that he
was violating the no-contact condition of his bond by continuing to have contact with the
alleged crime victim; (2) Agent Smith disagreed with Driggers when he told her that the nocontact condition of the bond did not apply because he was in custody and was not
released on bond; (3) Agent Smith told Driggers that she would get his visitation privileges
stopped; (4) Agent Smith told Driggers that she had listened to recordings of his calls to
the alleged crime victim, and that she had had conversations with ADA Hastings about
possible charges and/or punishment for the calls made in violation of the bond; (4) Agent
Smith maliciously lied to ADA Hastings, telling him that Driggers stated that he would not
abide by any no-contact provision from any court, and that the alleged crime victim stated
that she was afraid of Driggers and wanted no further contact with Driggers; (5) Agent
Smith “beguiled” the alleged crime victim into believing that she had violated and would get
into trouble for violating a no-contact order, and threatened the alleged victim by stating
that she would be arrested if she did not “write a statement to that effect”; (6) Agent Smith
listened to the telephone calls between Driggers and the alleged crime victim; (7) Agent
Smith’s assertions and blatant lies were the “substance and center” of the State’s motion
to restrict Driggers’s communications with the alleged crime victim; and (8) Agent Smith
conspired with ADA Hastings, Sheriff Schmaling, and Captain Wearing to punish Driggers
for violating the no-contact condition of his bond even though the condition did not apply
because Driggers was in custody and was not released on bond.
Driggers contends that ADA Hastings, Agent Smith, and Captain Wearing
“conspired to punish this plaintiff for a violation of a bond that under law did not exist, thus
conspired to punish this plaintiff before there was an adjudication of guilt in accordance
13

with due process of law, and to assist Agent Smith attain a statement from the alleged
victim[.]” (Pl.’s Resp., ECF No. 36 at 2.) Driggers also contends that it was clearly
established at the time of these officials’ actions that the Due Process Clause of the Fifth
and Fourteenth Amendments prohibit any kind of punishment of a pretrial detainee. He
goes on to state:
[The] unending solitary confinement established by defendants Hastings,
Smith, and Wearing were the sort of atypical and significant hardship, gave
rise to a liberty interest that entitled this plaintiff to due process of the law, as
they bore notable similarities to conditions which the U.S. Supreme Court
has described as synonymous to extreme isolation. Further, and moreover,
they run afoul of Racine County Jail’s steps or policy, as I was never given
a hearing, or advised of what steps this plaintiff could take to try and mitigate
the perceived need for continued segregation. These conditions were
excessive in relation to the purpose they served.
Also, the equal protection clause of the 14 Amendment has been well
established to prohibit intentionally treating people differently from others
similarly situated. Any absolute or qualified immunity defense must fail.
(Pl.’s Resp., ECF No. 36, at 6.)
Although Driggers alleges generally that Hastings and Smith conspired to punish
him and have him placed in segregation, a closer look at the complaint and judicially
noticeable exhibits reveals that Agent Smith investigated the contacts between Driggers
and the alleged crime victim, reported her findings to ADA Hastings, and assisted ADA
Hastings when he filed and argued a motion under Wis. Stat. § 940.47 to restrict
communications between Driggers and the alleged crime victim. At the hearing on ADA
Hastings’s motion, Driggers did not deny that he had contacts with the victim or that, on
multiple occasions, he discussed the possibility of the alleged crime victim doing him a

14

“favor” by recanting her statement to the police about the alleged crime.13 The court
imposed the communication and visitation restrictions under Wis. Stat. § 940.47 and to
abide by those restrictions, Driggers was placed in administrative segregation.
Captain Wearing informed ADA Hastings that Driggers would have to be placed in
administrative segregation if the circuit court signed an order restricting his telephone calls
but Hastings did not expressly seek placement in administrative segregation in his motion
and order. Rather, he requested that Driggers be confined in a location such that
compliance with the order would be ensured. At the hearing, ADA Hastings advised that
jail personnel had informed him that Driggers would be placed in “administrative
segregation” if the court signed the order.
According to Driggers, Agent Smith erroneously told him that the no-contact bond
provision applied to him when he was not on bond. Defendants do not deny this. Driggers
also alleges that Agent Smith emailed ADA Hastings and asked him if the restrictions
applied and that ADA Hastings acknowledged at the hearing that they did not apply. The
§ 940.47 motion seeking the restrictions was filed based on Smith and Hastings’s
investigations and Driggers does not allege that Hastings lied about Driggers’s contacts
with the alleged victim.
Even if ADA Hastings and Agent Smith had conspired with Captain Wearing to
restrict Driggers’s communications with the alleged crime victim and to place him in

13

Driggers subm its that Agent Sm ith’s “false assertions” and “blatant lies” were the “substance and
center” of the m otion and proposed order. However, based on these records, the “substance and center” of
the m otion are the claim s that, (1) the sam e alleged crim e victim recanted statem ents m ade to police after
Driggers was arrested and charged, on the basis of those statem ents, less than six m onths earlier, and (2)
“the State” (i.e., ADA Hastings) reviewed telephone logs and recordings of telephone conversations between
Driggers and the alleged crim e victim , in which Driggers discusses on m ultiple occasions the possibility of the
alleged crim e victim doing him a “favor” by recanting her statem ents to police.

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administrative segregation, their actions would not have deprived Driggers of his
constitutional due process rights because Driggers was placed in administrative
segregation to satisfy the directive of the circuit court’s order. Such placement was not,
therefore, punishment. See Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). “[I]f a particular
condition or restriction of pretrial detention is reasonably related to a legitimate
governmental objective, if does not, without more, amount to ‘punishment’.” See id. at 539;
see Collazo-Leon v. United States Bureau of Prisons, 51 F.3d 315, 317-18 (1st Cir. 1995)
(restricting the telephone and visitation privileges of a pretrial detainee, and placing him in
segregation (23 hours a day), for offering a bribe to a prison guard to help him escape, did
not constitute unconstitutional punishment of the pretrial detainee and instead was incident
to the legitimate governmental objective of “maintaining security and order and operating
the institution in a manageable fashion”); see also Valdez v. Rosenbaum, 302 F.3d 1039,
1042-46 (9th Cir. 2002) (restricting the telephone calls of a pretrial detainee and placing
him in administrative segregation did not constitute unconstitutional punishment).
Qualified immunity protects government officials from civil liability for damages
“insofar as their conduct does not violate any clearly established statutory or constitutional
rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Even if ADA Hastings and Agent Smith conspired with Captain
Wearing to restrict Driggers’s telephone calls and visitation, and to place him in
administrative segregation, they are entitled to qualified immunity because a reasonable
person would not have known that such conduct violated any clearly established statutory
or constitutional rights.

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SCHMALING AND WEARING’S MOTION TO DISMISS
Sheriff Schmaling and Captain Wearing contend that the complaint fails to state a
claim as to Schmaling because it does not allege personal involvement on the part of
Sheriff Schmaling and because he cannot be liable based on his position as a supervisor.
Section 1983 makes public employees liable “for their own misdeeds but not for anyone
else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.2009); see George v. Smith, 507
F.3d 605, 609 (7th Cir. 2007). Top-level administrators are entitled to delegate to others
the responsibility for specific prison functions. See Burks, 555 F.3d at 595.
Examination of the complaint reveals that it does not allege that Sheriff Schmaling
was personally involved in the decision to place Driggers in segregation. Moreover, the
complaint asserts that Sheriff Schmaling had direct knowledge of the allege constitutional
violations because he was named in Driggers’s petition for a writ of habeas corpus. This
is not enough to plead an actionable § 1983 claim. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (Government officials may not be held liable, under Bivens or § 1983, for
unconstitutional conduct of their subordinates under theory of respondeat superior;
because vicarious liability is inapplicable, plaintiff must plead that each government officialdefendant, through his or her own actions, has violated the Constitution).
Driggers alleges that Wearing conspired to place him in segregation. However, this
allegation is without merit. As set forth herein, Driggers was placed in administrative
segregation in order to comply with the circuit court’s order and not as “punishment.” See
Bell, 441 U.S. at 535-37. Judge Flancher signed the order on June 6, 2013, and the order
remained in effect until it was lifted on January 22, 2014. (Affidavit of John P. Serketich,
¶ 2, Exh. A). With respect to Driggers’s allegation that he was treated differently than other
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pretrial detainees, he does not allege that any other pretrial detainees were subject to a
similar restrictive court order. As such, he fails to state a denial of equal protection claim.
Finally, Driggers asserts interference with his mail and noise interrupting his sleep.
However, he fails to state constitutional claims for this charged activity because Captain
Wearing is not alleged to have been personally involved in these matters. See Burks, 555
F.3d at 596. Therefore,
IT IS ORDERED that defendants Hastings and Smith’s motion to dismiss (Docket
18) is GRANTED.
IT IS FURTHER ORDERED that defendants Schmaling and Wearing’s motion to
dismiss (Doc. 29) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for default judgment (Doc. 34) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for court to take judicial notice
(Doc. 35) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to stay time limits to file response
and for order to serve plaintiff with documents (Doc. 40) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Doc. 49) is
DENIED.
IT IS FURTHER ORDERED that this case is dismissed.
Dated at Milwaukee, Wisconsin, this 30th day of January, 2015.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. District Judge
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