Werner v. Wall et al

Filing 13

ORDER signed by Judge Pamela Pepper on 9/18/2015 GRANTING 2 Motion for Leave to Proceed in forma pauperis; GRANTING 4 Motion to Waive; DENYING AS MOOT 5 Motion to Have Defendants Receive Filing Through PACER; denying 9 Motion to Publish All Decisions; GRANTING 12 Motion to Screen Complaint and SCREENING Plaintiff's Complaint. (cc: all counsel); by US Mail to Plaintiff and Warden at Oshkosh CI) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
PATRICK JAMES WERNER,
Plaintiff,
v.

Case No. 15-cv-104-pp

EDWARD F. WALL,
KATHRYN ANDERSON,
KRIS CHILSEN,
JACKIE GUTHRIE,
GRACE ROBERTS, and
DEBBIE LARRABEE,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 2), GRANTING PLAINTIFF’S MOTION TO
WAIVE INITIAL PARTIAL FILING FEE (DKT. NO. 4), DENYING AS MOOT
PLAINTIFF’S MOTION TO HAVE DEFENDANTS RECEIVE FILING THROUGH
PACER (DKT. NO. 5), DENYING PLAINTIFF’S MOTION TO PUBLISH ALL
DECISIONS (DKT. NO. 9), GRANTING PLAINTIFF’S REQUEST TO SCREEN
COMPLAINT (DKT. NO. 12) AND SCREENING PLAINTIFF’S COMPLAINT
______________________________________________________________________________
Patrick James Werner, a state prisoner, filed a pro se complaint under 42
U.S.C. §1983, alleging that his civil rights were violated. This order resolves the
plaintiff's motion for leave to proceed in forma pauperis, the plaintiff’s motion to
waive the initial partial filing fee, the plaintiff’s motion to have defendants
receive filings through PACER and the plaintiff’s motion to publish all
decisions, as well as screening the plaintiff’s complaint.
I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this action because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
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law allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff to pay the balance of
the $350 filing fee over time, through deductions from his prisoner account. Id.
On January 28, 2015, the court issued an order requiring the plaintiff to
pay an initial partial filing fee of $10.16. Dkt. No. 7. Previously, however, the
plaintiff had filed a motion to waive the initial partial filing fee. Dkt. No. 4. In
that motion, the plaintiff detailed both his earnings and the many deductions
that the prison takes from this prison trust account, leaving him without a
remainder to pay his initial partial filing fee. “In no event shall a prisoner be
prohibited from bringing a civil action or appealing a civil or criminal judgment
for the reason that the prisoner has not assets and no means by which to pay
the initial partial filing fee.” 28 U.S.C. §1915(b)(4). The court will grant the
plaintiff’s motion to waive the initial partial filing fee, Dkt. No. 4, and will grant
the plaintiff’s motion for leave to proceed without pre-paying the filing fee, Dkt.
No. 7. The court will allow the plaintiff to pay the balance of the $350.00 filing
fee over time from his prisoner account, as described at the end of this order.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The law requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or employee of a
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governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint
or portion thereof if the plaintiff raises claims that are legally “frivolous or
malicious,” that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b).
A claim is legally frivolous “‘when it lacks an arguable basis either in law
or in fact.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992), quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989). See also Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is “based on an indisputably meritless legal theory”
or where the factual contentions are clearly “baseless.” Neitzke, 490 U.S. at
327. “Malicious,” although “sometimes treated as a synonym for ‘frivolous,’ . . .
is more usefully construed as intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109-10 (7th Cir. 2003) (internal citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to
plead specific facts, and his statement need only “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim,
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a complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must
be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro
se allegations, “however inartfully pleaded,” a liberal construction. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
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B.

Facts Alleged in the Complaint

The complaint states that on August 23, 1999, the plaintiff was
sentenced to serve ten years in custody (consecutive to a prior sentence of two
years in a different case) for second-degree sexual assault of a child. Dkt. No. 1
at 4. On that same date, he was sentenced to a ten-year term of probation (to
be served consecutively to the ten-year custodial sentence) after his conviction
for child enticement-sexual contact. Id. The plaintiff indicates that he finished
serving his term of incarceration on November 16, 2012, at which time he
began serving the ten-year term of probation. He indicates that, while his
probation was revoked, it was revoked for rule violations, not the commission
of new offenses. Id.
The complaint indicates that in 2006, the Wisconsin Assembly enacted
Wis. Stat. §301.48, the Wisconsin statute that mandates lifetime GPS (Global
Positioning System) monitoring of sex offenders. Id. The plaintiff submits that
he was first “forced to comply” with the provisions of §301.48 in March 2008,
but that the GPS tracking equipment didn’t work and he was “forced to be
placed in the County Jail due to faulty equipment.” Id. at 5. In 2011, the
plaintiff received from a Department of Corrections employee named Erin
Murto information about the GPS tracking fee imposed by the statute, along
with a letter indicating to the plaintiff that he was going to be enrolled in the
GPS tracking program. Id. at 4. In 2012, he received a letter from defendant
Debbie Larrabee, explaining to him why he was subject to the statute, and
informing him that a bracelet would be placed on his ankle and a home-based
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unit placed in his residence. Id. Although the plaintiff currently is incarcerated,
he alleges that he has a discharge date of February 15, 2023, and he will be
subject to the statute again at that time. Id. at 9. He argues that by the time he
is discharged, he will have been subject to the requirements of the statute for
almost fifteen years, but that under Wis. Stat. §301.48(6)(b)(2), he still won’t be
able to petition for termination of the lifetime tracking requirement for another
five years. Id.
The plaintiff’s twenty-one page, comprehensive complaint includes
background on the legislative history of §301.48. It also references commentary
on and critique of the GPS program that has been issued by outside entities
and news agencies.
From a legal standpoint, the plaintiff argues in the complaint that
subjecting him to a punishment (which is how he characterizes the lifetime
GPS monitoring) which the legislature created after his crime was committed
violates the Ex Post Facto Clause of Section 1 of the Fourteenth Amendment.
Id. at 16. He argues that lifetime GPS tracking is a punitive measure, which
infringes on his personal liberty. Id. He also suggests that the monthly tracking
fee constitutes a possible Equal Protection violation, because it does not apply
to sexually violent offenders who are committed to the custody of the
department of health services under the procedures prescribed in Wis. Stat.
§980.01 et seq. Id. at 20.
The plaintiff seeks declaratory relief, compensatory and punitive
damages, and costs. Id. at 21. He also implies that he wants this case to be a
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class action (though he has not filed a class certification motion under Fed. R.
Civ. P. 23). Id.
C.

Legal Analysis of Alleged Facts

The plaintiff argues that requiring a person to wear a GPS tracking
device—and to pay for it—for the rest of the person’s life is an infringement on
one’s personal liberty. The Due Process Clause of the Fourteenth Amendment
provides that the government shall not “deprive any person of life, liberty, or
property, without due process of law.” “Freedom from physical restraint ‘has
always been at the core of the liberty protected by the Due Process Clause from
arbitrary governmental action.’” Kansas v. Hendricks, 521 U.S. 346, 356 (1997)
(quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). If Wis. Stat. §301.48
constitutes a deprivation of, or restraint on, liberty—and it is arguable that it
does—then the State of Wisconsin was required to provide the plaintiff with
due process before subjecting him to that deprivation or restriction. The
plaintiff alleges that he received no due process; the law was enacted long after
his crimes, conviction and sentencing. He alleges that he simply was told, years
after his conviction and sentencing, that he was subject to the statute. Based
on these allegations, the court concludes that the complaint states sufficient
facts to allow the plaintiff to proceed on a due process claim.
The plaintiff also argues that a requirement that a defendant wear a GPS
monitor for life, and pay for it, constitutes punishment. He asserts facts
supporting his contention that the law that created that punishment was
passed years after his conviction and sentence. Article I, §10, cl. 1 of the
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Constitution prohibits states from passing any “ex post facto Law.” The
Supreme Court has held that the constitutional prohibition on ex post facto
laws prohibits the passing of laws that “change[] the punishment, and inflict[] a
greater punishment, than the law annexed to the crime, when committed.”
Collins v. Youngblood, 497 U.S. 37, 41 (emphasis in the original) (quoting
Calder v. Bull, 3 Dall. 386, 390 (1798)).
No doubt, the State views lifetime tracking not as
punishment, but as a measure intended for the
protection of the public. Yet, even enactments that are
intended solely for the protection of the public will be
found punitive and a violation of rights protected by
the Constitution if ‘the statutory scheme is so punitive
either in purpose or effect as to negate the State’s
intention to deem it civil.’
Belleau v. Greene, No. 12-C-1198, 2013 WL 1975672 (E.D. Wis. May 13, 2013)
(quoting Smith, 538 U.S. at 92). The plaintiff argues that §301.48 constitutes
such a statutory scheme—that subjecting him to lifetime GPS tracking for
which he must pay is so punitive that the court should deem it punishment,
and not a civil protective measure. Like the court in Belleau, this court cannot
determine, at this stage, whether the lifetime GPS tracking system under Wis.
Stat. §301.48 is punitive to that degree. There is a reasonable argument to be
made, however, that the statute does constitute punishment, and that because
the plaintiff was subjected to that increased punishment after his conviction
and sentencing, he has a claim under the Ex Post Facto Clause. The court will
allow him to proceed on that claim.
In contrast, however, the court finds that the complaint does not state
sufficient facts to allow the plaintiff to proceed on an equal protection claim.
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To establish a prima facie case of discrimination
under the equal protection clause, [the plaintiff
is] required to show that he is a member of a
protected class, that he is otherwise similarly
situated to members of the unprotected class,
and that he was treated differently from
members of the unprotected class.
Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). The plaintiff implies that he
is a member of a class—convicted sex offenders who are not committed as
violent sex offenders under Wis. Stat. §980.01 et seq. His argument assumes
that this class is protected, that he is similarly situated to members of an
unprotected class (presumably, a class made up of violent sex offenders
committed under Chapter 980), and that the lifetime tracking statute treats
him differently than the members of the unprotected class for no reason.
Uncommitted sex offenders, however, do not constitute a protected class under
the Equal Protection Clause. Over the years, the Supreme Court has found that
race, national origin, religion, gender and age may place someone in a
protected class; it never has determined that uncommitted sex offenders
constitute a protected class. The court will not allow the plaintiff to proceed on
his equal protection claim.
Now that the court has decided the claims upon which the plaintiff may
proceed, the next step is to determine the proper defendant or defendants
against whom the plaintiff may assert his due process and ex post facto claims,
and whether the plaintiff may proceed against them in their individual or
official capacities.

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The distinction between official capacity and individual capacity is
significant. “Personal-capacity suits seek to impose liability upon a government
official for actions he takes under color of state law. . . . Official capacity suits,
in contrast, generally represent only another way of pleading an action against
an entity of which an officer is an agent.” Hill v. Shelander, 924 F.2d 1370,
1372 (7th Cir. 1991) (quoting Kentucky v. Graham, 473 U.S.159, 166 (1985)).
In other words, a personal-capacity suit is appropriate when an official, acting
under the color of state law, personally deprives a plaintiff of a federal right. Id.
An official-capacity suit is appropriate when a person is only executing or
implementing the official policy or custom of a government entity. Id.
Although the plaintiff named as defendants six individuals holding
various positions with the DOC, the complaint mentions by name only three.
The plaintiff asserts that defendant Debbie Larrabee, the GPS Specialist at the
DOC, sent him a letter on October 24, 2012, explaining why lifetime GPS
monitoring applied to him. Dkt. No. 1 at 4. He alleges, then, that defendant
Larrabee personally was involved in depriving him of due process, and in
subjecting him to ex post facto punishment. In making this allegation, he also
alleges that Larrabee was the instrument through which the State of Wisconsin
executed an unconstitutional statute. The court concludes that the plaintiff
may proceed against Larrabee both on individual and official capacity claims.
The complaint mentions that defendant Grace Roberts sent a letter to
DOC staff regarding specific provisions of the lifetime monitoring statute, id. at
4-5 and 7, and that defendant Jackie Guthrie made statements (to whom is not
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clear) regarding what the Department of Corrections had or had not done
regarding the program, id. at 6. The complaint contains no facts which indicate
that either of these defendants were involved with the plaintiff directly.
Accordingly, the court finds that the plaintiff has not stated claims against
these defendants in their individual capacities. The complaint does not mention
defendants Edward F. Wall, Kathryn Anderson or Kris Chilsen at all, other
than to list them in the “Defendants” section at the beginning of the complaint.
Because none of these defendants dealt directly with the plaintiff in regard to
the GPS monitoring statute, the court dismisses them as individual
defendants. Because the court already has determined that the plaintiff may
proceed on an official capacity claim against defendant Larrabee, these other
defendants are not necessary to any official capacity claim. The court will
dismiss all of these defendants.
The court notes that the plaintiff’s official capacity claim is for
declaratory and injunctive relief only. “To the extent that [the plaintiff] seeks
monetary damages from defendants acting in their official capacity, those
claims for retroactive relief are dismissed as they are barred by the Eleventh
Amendment.” Brown, 398 F.3d at 918. Larrabee remains subject to the
plaintiff’s claims for monetary damages in her individual capacity. See id.
III.

PLAINTIFF’S OTHER MOTIONS
The plaintiff has filed two other motions. He asks to have the defendants

receive filings through PACER. Dkt. No. 5. Because all of the court’s screening
orders state that the defendants will receive electronic notice of documents
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plaintiffs file with the court, this motion is unnecessary, and the court will
deny it as moot.
The plaintiff also asks the court to publish all decisions. Dkt. No. 9. He
bases this request on his characterization of this case as a class action
(although, again, he has not filed a Rule 23 class certification motion, and this
court has not certified a class). He suggests there is a large group of individuals
who would be impacted by the court’s decision in this case, and argues that
published decisions would make it easier to communicate information and to
recruit additional plaintiffs.
First, the court does not have final control over which decisions are
published and which are not. Publication services, such as Thompson West,
search court databases, and often publish cases even when the court has not
designated the decision or order as publishable. Second, a court does not base
its decision regarding whether to publish on the desires of an individual
plaintiff. Every judge decides, for him or herself, whether a particular decision
contributes to the jurisprudence in a particular area, such that its publication
might be relevant to the public. The court will treat this case no differently. If
and when it issues a decision in this case, it will decide whether to publish that
decision in the same way that it decides that question in all other cases. The
court will deny this motion.
Finally, the plaintiff filed a request that the court screen his (several)
cases. Dkt. No. 12. The court grants that request to the extent that it issues
this screening order.
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IV.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed in forma

pauperis. Dkt. No. 2. The court also GRANTS the plaintiff’s motion to waive the
initial partial filing fee. Dkt. No. 4. The court ORDERS that the Secretary of the
Wisconsin Department of Corrections or his designee shall collect from
plaintiff's prison trust account the $350.00 balance of the filing fee by
collecting monthly payments from plaintiff's prison trust account in an amount
equal to 20% of the preceding month's income credited to the prisoner's trust
account and forwarding payments to the clerk of the court each time the
amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2).
The Secretary of the Wisconsin Department of Corrections or his designee shall
clearly identify the payments by the case name and number assigned to this
action.
The court DENIES AS MOOT the plaintiff’s motion to have defendants
receive filings through PACER. Dkt. No. 5. The court DENIES the plaintiff’s
motion to publish all decisions. Dkt. No. 9. The court GRANTS the plaintiff’s
request to have the court screen his case. Dkt. No. 12.
The court DISMISSES the following defendants: Edward F. Wall, Kathryn
Anderson, Kris Chilsen, Jackie Guthrie, and Grace Roberts.
The court ORDERS that the plaintiff may proceed on individual and
official capacity claims against Debbie Larrabee.
The court ORDERS that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of
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plaintiff’s complaint and this order are being electronically sent today to the
Wisconsin Department of Justice for service on state defendant Debbie
Larrabee.
The court also ORDERS that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, defendant
Larrabee shall file a responsive pleading to the complaint within sixty days of
receiving electronic notice of this order.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each filing will
be electronically scanned and entered on the docket upon receipt by the clerk,
the plaintiff need not mail copies to the defendants. All defendants will be
served electronically through the court’s electronic case filing system. The
plaintiff should also retain a personal copy of each document filed with the
court.
The court further advises plaintiff that if he does not timely file
documents, the court may dismiss his case for failure to prosecute.

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In addition, the parties must notify the clerk of court of any change of
address. Failure to do so could result in orders or other information not being
timely delivered, thus affecting the legal rights of the parties.
The court will send a copy of this order to the warden of the institution
where the inmate is confined.
Dated at Milwaukee this 18th day of September, 2015.

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