Werner v. Wall et al

Filing 43

ORDER signed by Judge Pamela Pepper on 2/13/2017 GRANTING 23 the defendant's motion to dismiss and DENYING AS MOOT 31 the plaintiff's motion seeking to file additional interrogatories. (cc: all counsel; by US Mail to plaintiff) (pwm)

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

Case No. 15-cv-104-pp

DEBBIE LARRABEE,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
(DKT. NO. 23) AND DENYING AS MOOT PLAINTIFF’S MOTION SEEKING TO
FILE ADDITIONAL INTERROGATORIES (DKT. NO. 31)
____________________________________________________________________________
Plaintiff Patrick James Werner, representing himself, is proceeding on
due process and ex post facto claims challenging Wis. Stat. §301.48, which
requires GPS tracking of certain convicted and civilly committed sex offenders.
Dkt. No. 13 at 7-8. The defendants have filed a motion for judgment on the
pleadings (which was docketed as a motion to stay discovery and motion to
dismiss, dkt. no. 23), and the plaintiff’s motion seeking to file additional
interrogatories (dkt. no. 31). The court grants the defendant’s motion for
judgment on the pleadings, and denies as moot the plaintiff’s motion for
additional interrogatories.
I.

BACKGROUND
The plaintiff has separate criminal convictions for second-degree sexual

assault of a child and child enticement. Dkt. No. 1 at 4. On August 23, 1999,
the state court sentenced him in both cases; he received a total sentence of ten

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years in prison and ten years parole. Id. In 2011, the plaintiff was released on
probation and was subject to GPS monitoring under Wis. Stat. §301.48, but his
probation ultimately was revoked for violating his rules of community
supervision. Id. at 4-6. The plaintiff currently is incarcerated at Oshkosh
Correctional Institution, and has a maximum discharge date of February 15,
2023. Id. at 9.
On April 1, 2016, the defendant filed a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). Dkt. No. 23. The
defendant also asked the court to stay discovery pending briefing and
resolution of the motion to dismiss. Id. The court granted the motion to stay
discovery on April 12, 2016. Dkt. No. 26. The same day, the court received the
plaintiff’s motion seeking to file additional interrogatories, as well as three
depositions upon written questions and three requests for production of
documents addressed to non-parties. Dkt. Nos. 31-37.
In her brief in support of her motion for judgment on the pleadings, the
defendant submits that the plaintiff lacks standing to challenge the GPS
statute because currently, he is not subject to GPS monitoring. Dkt. No. 24 at
2-4. The defendant also argues that the plaintiff cannot prove any facts that
would support his due process and ex post facto claims. Id. at 4-8.
II.

DISCUSSION
A.

Standard—Motion for Judgment on the Pleadings

Rule 12(c) provides that “[a]fter the pleadings are closed—but early
enough not to delay trial—a party may move for judgment on the pleadings.”
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Fed. R. Civ. P. 12(c). Such a motion is evaluated under the same standards
that govern a Rule 12(b)(6) motion to dismiss; the court accepts as true all facts
alleged in the complaint and construes all reasonable inferences in favor of the
non-moving party. See Lodholtz v. York Risk Servs. Grp., 778 F.3d 635, 639
(7th Cir. 2015) (citations omitted). In considering a motion for judgment on the
pleadings, the court may rely on the pleadings, documents attached to or
referred to in the pleadings, or information subject to judicial notice. See
Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir. 2012) (addressing
Fed. R. Civ. P. 12(b)(6)). A court should grant a motion for judgment on the
pleadings “only if it appears beyond doubt that the plaintiff cannot prove any
facts that would support his claim for relief.” Buchanan-Moore v. City of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (quoting Northern Indiana Gun
& Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.
1998)).
B.

Standing

In order to have standing, the plaintiff must show that he has 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). “An allegation of future injury may suffice if the threatened
injury is ‘certainly impending,’ or there is a ‘substantial risk that the harm will
occur.’” Susan B. Anthony List v. Driehaus, __ U.S. __, 134 S.Ct. 2334, 2341

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(2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. __ at __, n. 5, 133 S.Ct.
1138, 1147, 1150, n. 5 (2013)).
The defendant argues that currently, the plaintiff is not being monitored
under the statute. She argues that there is no imminent plan to monitor him,
and that the possibility of a law applying in the future is not harm sufficiently
imminent to create standing. Dkt. No. 24 at 3-4. The plaintiff responds that he
is up for parole in 2017, and that his GPS monitoring therefore is imminent.
Dkt. No. 27 at 2. The defendant acknowledges that the plaintiff is up for parole
in 2017, but she argues that there is no guarantee that the parole board will
grant him parole at that time. Dkt. No. 24 at 3. Additionally, the defendant
contends that even if the plaintiff is paroled in 2017, he will remain under the
supervision and custody of the Wisconsin Department of Corrections (DOC)
until his mandatory discharge date in 2023. Id. The State has broad authority
to monitor offenders while they are within the custody and supervision of the
DOC. See Samson v. California, 547 U.S. 843, 848 (2006). His constitutional
challenge, the defendant argues, would be very different if he were challenging
the law as a parolee. Dkt. No. 24 at 3.
At this stage in the proceedings, the court construes all reasonable
inferences in favor of the plaintiff. See Lodholtz, 778 at 639. The parties agree
that, absent a change in the statute, the plaintiff will be subject to GPS
monitoring under §301.48 at some point in the future, whether upon parole in
2017, upon maximum discharge in 2023, or some time in between. That is a
“substantial risk that the harm will occur” and a sufficient “allegation of future
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injury.” Susan B. Anthony List, 134 S.Ct. at 2341. The court finds standing
and will consider the defendants’ arguments about the plaintiff’s substantive
claims.
C.

Ex Post Facto Clause Claim

“A statute is an ex post facto law only if it imposes punishment.” Belleau
v. Wall, 811 F.3d 929, 937 (7th Cir. 2016). In Belleau, the Seventh Circuit
determined that §301.48 is prevention, not punishment, which means that the
statute does not violate the ex post facto clause. Id. The court analogized GPS
monitoring under §301.48 to being stopped by a police officer on the highway
and asked to show one’s driver’s license, or being placed on a sex offender
registry, neither of which, the court said, is punishment. Id.
After Belleau, the plaintiff has no grounds for an ex post facto challenge
to Wis. Stat. §301.48, because even if he is subjected to the monitoring after
his conviction, the law in the Seventh Circuit is that such monitoring doesn’t
constitute punishment. See 811 F.3d at 937. The plaintiff tries to draw a
distinction between Belleau, who was a civilly committee sex offender, and
himself, a convicted sex offender. The Seventh Circuit drew no such distinction
in its decision, did not rely on Belleau’s status as a civilly committed sex
offender in its reasoning, and made its conclusion regarding the statute as a
whole. Id. at 937-38.
The court will grant the defendant’s motion for judgment on the
pleadings as to this claim.

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D.

Due Process Claim

The defendant argues that the plaintiff cannot prevail on his due process
claim, because the application of §301.48 is automatic based on an individual’s
conviction(s) or status as a civilly committed sexually violent person under Wis.
Stat. Ch. 980. See Wis. Stat. §301.48. The defendant also submits that anyone
impacted by the statute must, by virtue of that fact, already have received due
process, during either his criminal prosecution or his civil commitment
proceedings.
In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7-8
(2003), the Supreme Court upheld a sex offender registry scheme, holding that
the plaintiff could not bring a procedural due process challenge to a scheme
that is triggered merely by the plaintiff’s past convictions. The Court reasoned
that Connecticut had “decided that the registry information of all sex
offenders—currently dangerous or not—must be publicly disclosed,” and that
“[s]tates are not barred by principles of ‘procedural due process’ from drawing
such classifications.” Id. (quoting Michael H. v. Gerald D., 491 U.S. 110, 120
(1989) (emphasis in original).
Like the Connecticut law, the Wisconsin statute mandates lifetime GPS
monitoring for certain sex offenders based on their criminal convictions or civil
commitment. See Wis. Stat. §301.48(2)(a). The consequence (the GPS
monitoring) flows from the conviction or commitment, and there is no
requirement for additional due process. None is necessary. See Conn. Dep’t of
Pub. Safety, 538 U.S. at 7. The monitoring flows from the defendant’s criminal
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convictions, and he “already had a procedurally safeguarded opportunity to
contest” those convictions during his criminal proceedings. Id.
In Connecticut Department of Public Safety, the Supreme Court
indicated that claims challenging the drawing of classifications in state law
“’must ultimately be analyzed’ in terms of substantive, not procedural due
process.” Id. at 8 (quoting Michael H., 491 U.S. at 121). The issue of whether
the Connecticut law violated principles of substantive due process was not
before the Court. Id. Similarly, the issue of whether the Wisconsin law violates
the principles of substantive due process is not before this court. The Seventh
Circuit determined that the Wisconsin statute is not punitive and does violate
the Fourth Amendment, which supports this court’s decision not to allow the
plaintiff to proceed on a substantive due process claim. See Belleau, 811 F.3d
at 937. There is no substantive right violated by the plaintiff’s inclusion in the
class of offenders the State legislature decided to include in GPS monitoring
under §301.48,
III.

CONCLUSION

Because the Supreme Court and Seventh Circuit case law hold that GPS
monitoring does not constitute punishment, and does not give rise to a
separate due process requirement, the court must dismiss the plaintiff’s
claims.
The court GRANTS the defendant’s motion for judgment on the
pleadings. Dkt. No. 23. The court DISMISSES this case WITH PREJUDICE.
The Clerk of Court will enter judgment accordingly.
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Because of the outcome of the defendant’s motion to dismiss, no
additional discovery is necessary, and the court DENIES AS MOOT the
plaintiff’s motion seeking to file additional interrogatories. Dkt. No. 31.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule

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of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 13th day of February, 2017.

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