Werner v. City of Green Bay et al

Filing 12

ORDER signed by Judge Pamela Pepper on 9/21/2015 GRANTING 2 Plaintiff's Motion for Leave to Proceed in forma pauperis; GRANTING 4 Plaintiff's Motion to Waive Initial Partial Filing Fee; DENYING AS MOOT 5 Plaintiff's Motion to H ave Defendants Served Through PACER; DENYING 6 Plaintiff's Motion to Publish all Decisions; GRANTING 11 Plaintiff's Request to Screen Complaint and SCREENING Complaint. The court also DISMISSES all defendants but the City of Green Bay. Please refer to the Order for additional details. (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-216-pp

CITY OF GREEN BAY,
CITY OF DePERE,
VILLAGE OF HOWARD,
VILLAGE OF DENMARK,
VILLAGE OF ASHWAUBENON,
VILLAGE OF ALLOUEZ,
VILLAGE OF BELLEVUE,
TOWN OF GLENMORE,
TOWN OF GREEN BAY,
VILLAGE OF HOBART,
TOWN OF HUMBOLDT,
TOWN OF LAWRENCE,
TOWN OF MORRISON,
TOWN OF SCOTT,
VILLAGE OF SUAMICO,
VILLAGE OF PULASKI, and
VILLAGE OF WRIGHTSTOWN,
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 SERVED THROUGH PACER
(DKT. NO. 5), DENYING PLAINTIFF’S MOTION TO PUBLISH ALL
DECISIONS (DKT. NO. 6), GRANTING PLAINTIFF’S REQUEST TO SCREEN
CASE (DKT. NO. 11), AND SCREENING PLAINTIFF’S COMPLAINT
______________________________________________________________________________
Patrick James Werner, a Wisconsin state prisoner residing at Oshkosh
Correctional Institution, filed a pro se complaint under 42 U.S.C. §1983,
alleging that his civil rights were violated by seventeen municipalities in the
1

Green Bay, Wisconsin area: the City of Green Bay, the City of DePere, the
Village of Howard, the Village of Denmark, the Village of Ashwaubenon, the
Village of Allouez, the Village of Bellevue, the Town of Glenmore, the Town of
Green Bay, the Village of Hobart, the Town of Humboldt, the Town of Lawrence,
the Town of Morrison, the Town of Scott, the Village of Suamico, the Village of
Pulaski, and the Village of Wrightstown. Dkt. No. 1. This order resolves the
plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 2), the
plaintiff’s motion to waive the initial partial filing fee (Dkt. No. 4), the plaintiff’s
motion to have defendants served through PACER (Dkt. No. 5), the plaintiff’s
motion to publish all decisions in this matter (Dkt. No. 6), and the plaintiff’s
request that the court screen his complaint (Dkt. No. 11), as well as screening
the complaint.
I.

PLAINTIFF’S MOTIONS REGARDING THE FILING FEE
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
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 March 3, 2015, the court issued an order requiring the plaintiff to
pay an initial partial filing fee of $9.46. Dkt. No. 7. Prior to that date, however,
2

the plaintiff already had filed a motion to waive the initial partial filing fee. Dkt.
No. 4. In that motion, the plaintiff details 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 no 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. 2. 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
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.
3

Williams, 490 U.S. 319, 325 (1989)). 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,
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).

4

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)).
B.

Facts Alleged in the Complaint

In June 1999, the plaintiff was convicted of second degree sexual assault
of a child and child enticement. Dkt. No. 1 at 4. As a result of those
convictions, he has to register as a sex offender, and pay a DNA surcharge. Id.
In the spring of 2008, the plaintiff completed the prison term imposed for
his sexual assault conviction, and sought authority from the Green Bay Sex
Offender Residency Board to live with his mother. The Board approved this
5

request. Id. at 4-5. In June of 2009, however, his probation was revoked. Id. at
5. Nonetheless, in November 2009, he asked the Board’s permission to live in
the Transitional Living Placement Program (“TLP”) in Green Bay. This time, the
board denied his request, stating, “You were given ample opportunity to reside
in Green Bay. So denied.” Id. He spoke to his probation officer about this; she
told him that “due to the Ordinances and not having approved residence upon
release from prison,” the Department of Corrections would, upon his release
from prison, house him in the Brown County Jail. Id. When the plaintiff was
released from prison on March 16, 2010, he was taken to the Brown County
Jail, and he stayed there until he moved into a residence on July 1, 2011. Id.
He was in the Brown County Jail, then, for over thirteen months.
The plaintiff states that his parole agent advised him to not bother
looking for a residence in the Village of Ashwaubenon, the Village of Denmark,
the Village of Wrightstown, or the Town of Morrison due to the complexity of
their sex offender ordinances. Id. at 6. Indeed, the plaintiff indicates that a
lieutenant from the Ashwaubenon Department of Public Safety informed him
that he could live in only one location in the village, but that when he
contacted that location, he was told that they did not rent to felons. Id.
In April 2010, the plaintiff again asked the Board for permission to live in
the TLP; again, the board refused, for the same reason. Id. He began to “search
in [the cites of] DePere, Village of Bellevue, Village of Howard and Village of
Allouez areas.” Id. Eventually, after being denied permission yet another time,
the defendant found a residence in the Village of Bellevue, into which he moved
6

in July 2011. Id. In August 2012, the plaintiff tried one last time to get
permission to move to the TLP. This time, the Board denied him because “he
was a severely high risk to re-offend.” Id.
The plaintiff contends that the residence he did find in July 2011, in the
Village of Bellevue, was “miles away from public transportation.” Id. at 8. He
had to walk from two to two-and-a-half miles to bus stops, walks which took
some 50 to 75 minutes a day. Id. The job he had at the time required him to
work twelve-hour shifts; adding the additional travel time to get to public
transportation left him exhausted. Id.
The plaintiff has sued seventeen municipalities in the Green Bay area,
challenging as unconstitutional each municipality’s sex offender ordinance.
The plaintiff alleges that the ordinances apply only to convicted sex offenders
required to register under Wis. Stat. §301.45. Id. at 4. The plaintiff argues that
these ordinances unconstitutionally regulate where registered sex offenders
may live (by forbidding them from living within certain distances of places
where children may congregate), how many registered sex offenders may reside
at one address, and what procedures registered sex offenders must follow to
gain approval for a specific residence. Id. He further contends that sex
offenders may be fined for violating these ordinances. Id.
Although the plaintiff mentions numerous legal theories in his thirtyseven-page complaint, it appears that he is challenging these local sex offender
ordinances on Eighth Amendment, Ninth Amendment, due process, equal
protection, and ex post facto grounds. He also argues that the ordinances
7

violate the Americans with Disabilities Act. The plaintiff seeks declaratory
relief, injunctive relief, compensatory damages, punitive damages, costs, and
fees.
C.

Legal Analysis of Alleged Facts

Federal courts are courts of limited jurisdiction. That is, “Article III of the
United States Constitution limits the jurisdiction of the federal courts to actual
‘Cases’ and ‘Controversies.’” Goldhamer v. Nagode, 621 F.3d 581, 584 (7th Cir.
2010). A justiciable case or controversy exists only when the plaintiff has
standing to assert his claims. Little Arm, Inc. v. Adams, 13 F. Supp. 3d 893,
905 (S.D. Ind. 2014). Constitutional standing has three requirements: (1) a
plaintiff who has suffered an “injury in fact”; (2) “a causal connection between
the injury and the conduct complained of”; and (3) a likelihood, rather than
speculation, “that the injury will be redressed by a favorable decision.” Ctr. for
Individual Freedom v. Madigan, 697 F.3d 464, 473 (7th Cir. 2012) (quoting
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)). “An
‘injury in fact’ is ‘an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Little Arm, Inc., 13 F. Supp. 3d at 906 (quoting Ariz. Christian,
131 S. Ct. at 1442). Standing must exist for each form of relief sought. See
Goldhamer, 621 F.3d at 585.
When no concrete injury has yet occurred, a plaintiff has standing only if
he faces “a realistic danger of sustaining a direct injury as a result of the
statute’s operation or enforcement,” or if he demonstrates “an intention to
8

engage in a course of conduct arguably affected with a constitutional interest,
but proscribed by a statute, and [that] there exists a credible threat of
prosecution thereunder.” Madigan, 697 F.3d at 473 & n.5 (quoting Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Moreover, past
alleged constitutional violations are insufficient to establish a present case or
controversy “if unaccompanied by any continuing, present adverse effects.”
Derfus v. City of Chicago, 42 F. Supp. 3d 888, 895 (N.D. Ill. 2014) (quoting
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).
In his complaint, the plaintiff seeks several different forms of relief. First,
the plaintiff requests that each sex offender ordinance be repealed and declared
unconstitutional. Dkt No. 1 at 36. Second, the plaintiff requests compensatory
and punitive damages from each defendant that had a sex offender ordinance
in effect from March 16, 2010, through July 1, 2011 (i.e., during his
incarceration at the Brown County Jail following his release from prison), as
well as from each defendant that has a sex offender residency board. Id. at 3637. Third, the plaintiff requests compensatory damages from the City of Green
Bay for each time the Board denied his request to live at the Transitional Living
Program. Id. at 37 Finally, the plaintiff requests a permanent injunction
enjoining each defendant from enforcing its sex offender ordinance. Id.1

 The plaintiff also seeks compensatory damages from the Village of Bellevue,
the Village of Howard, and the Village of Suamico for not providing village-wide
bus service, Dkt. No. 1 at 36, as well as compensation for any registered sex
offender whose residence was either approved or denied by any defendant
named in his complaint, id. at 37. The court will deny these requests. The
plaintiff has not presented—and the court is unaware of—any authority
establishing a constitutional right to bus service throughout an entire
1

9

A careful review of the plaintiff’s complaint demonstrates that he has
failed to state a claim for relief that would entitle him to damages against any
defendant other than the City of Green Bay. The plaintiff has not alleged that
any of the non-Green Bay defendants violated his constitutional rights. The
plaintiff acknowledges in his complaint that he has dealt with only the City of
Green Bay Sex Offender Residency Board. Id. at 4. The complaint does not
contain any allegations of the plaintiff having been denied residency in any of
the non-Green Bay municipalities on account of his status as a sex offender,
and the plaintiff does not have standing to seek damages from any of the nonGreen Bay defendants simply for having a sex offender residency board, or for
having a residency ordinance on its books.
The plaintiff’s allegations regarding his attempts to reside within any of
the non-Green Bay defendants are insufficient to state a claim for damages. He
alleges that he started to search for a residence in the City of DePere, the
Village of Bellevue,2 the Village of Howard, and the Village of Allouez, but he
had “no sort of luck.” Dkt. No. 1 at 5. The plaintiff has not asserted any facts
which would support a conclusion that this lack of luck was the result of the
sex offender ordinances in place at the time, or whether it was due to any

municipality. The plaintiff has not filed a class certification motion pursuant to
Fed. R. Civ. P. 23, and this court has not certified a class. The plaintiff does not
have standing to seek damages on behalf of individuals who are not parties to
this lawsuit.
As discussed above, the plaintiff did, in fact, move into an apartment in Bellevue in
July 2011, and apparently resided there until his probation was revoked in May 2012
for rule violations. Dkt. No. 1 at 5. This fact alone demonstrates that he has no cause
of action against the Village of Bellevue.

2

10

number of other factors—for example, a lack of available and/or affordable
housing in those areas, the plaintiff’s status as an ex-felon, or the plaintiff’s
lack of employment.3 Similarly, the plaintiff alleges that he was forced to search
in areas with no public transportation “due to the lack of luck or strict
Ordinances.” Id. at 8 (emphasis added). The plaintiff has provided nothing
more than speculation regarding why he was forced to look for residences in
locations with no public transportation.
The plaintiff claims that his probation agent dissuaded him from looking
for a residence in particular municipalities due to their complex sex offender
ordinances. This allegation, even if true, is insufficient to state a claim for
damages against the municipalities themselves; the fact that the agent
expressed an opinion as to what kind of luck the plaintiff might have in those
locations does not result in liability on the part of the municipalities.
The plaintiff’s complaint does, however, state a claim for damages
against the City of Green Bay. The plaintiff alleges that the Board—acting in
accordance with the city’s sex offender ordinances—denied his requests to live
in Green Bay on four occasions: November 2009, April 2010, April 2011 and
August 2012. Id. at 5. He argues that these denials deprived him of his
constitutional rights. Specifically, the plaintiff alleges that the city’s sex
offender ordinances restrict where all sex offenders may reside (that is, without

Indeed, the plaintiff states in his complaint that he was denied an apartment
in the Village of Ashwaubenon because he was a convicted felon, and that the
Board denied his request to live in Green Bay in April 2011 because he did not
have a job or any potential employment. Dkt. No. 1 at 5-6.
3

11

any individualized assessment), which results in community ostracism and
very limited places to live. In essence, his argument boils down to an allegation
that the ordinance deprived him of liberty—the liberty to choose where to live—
without due process.
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 the Green Bay residency
ordinance constitutes a deprivation of, or restraint on, liberty—and it is
arguable that it does—then the city 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 discovered, when he
began to look for somewhere to live years after his conviction and sentencing,
that he was subject to the ordinance. Based on these allegations, the court
concludes that the complaint states sufficient facts to allow the plaintiff to
proceed again the City of Green Bay on a due process claim.
The plaintiff alleges that the city enacted its residency ordinance on
April 6, 2007. Dkt. No. 1 at 4. As discussed above, the plaintiff was sentenced
as a sex offender on June 23, 1999. Id. Taking the allegations of the complaint
as true, the Green Bay residency ordinance did not go into effect until at least
12

eight years after the plaintiff was sentenced. The plaintiff also alleges that the
effect of the ordinance is punitive, and that it constitutes punishment. Article I,
§10, cl. 1 of the 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 (1990) (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 v. Doe, 538 U.S. 84, 92 (2003)).
The plaintiff argues that the Green Bay ordinance constitutes such a
statutory scheme—that restricting where he may live, and exercising sole
control over where he may live, 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 residency restriction is
punitive to that degree. There is a reasonable argument to be made, however,
that the ordinance does constitute punishment, and that because the plaintiff
was subjected to that increased punishment after his conviction and
13

sentencing, he has a claim under the Ex Post Facto Clause. The court will allow
him to proceed on that claim.
The plaintiff’s allegations are not sufficient, however, to give rise to an
Eighth Amendment claim. The Eighth Amendment prohibits the infliction of
“cruel and unusual punishment.” “The Eighth Amendment governs those
charged with the custodial care of convicted persons, . . . .” Sharp v. Kelsey,
918 F. Supp. 1115,1122 (W.D. Mich. 1996). The City of Green Bay was not
charged with the custodial care of the plaintiff. Accordingly, the court will not
allow him to proceed on an Eighth Amendment claim against the city.
Nor does the complaint state sufficient facts to allow the plaintiff to
proceed on an equal protection claim.
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 Green Bay residency ordinance
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
14

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.
Nor does the plaintiff allege facts sufficient to support a Ninth
Amendment claim. The Ninth Amendment to the Constitution states that “[t]he
enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people.” The Ninth Amendment does
not create substantive constitutional rights.
Despite [the plaintiff’s] claim, the ninth amendment is
not a source of substantive constitutional rights.
Rather, it was created to preserve those fundamental
rights which are implicit, though not enumerated, in
the Bill of Rights. Concerned that they may have
omitted certain rights, the drafters envisioned that the
ninth amendment would serve as a savings clause for
rights not specifically mentioned in the first eight
amendments.
In the instant case, [the plaintiff] has cited no
authority recognizing any kind of unarticulated,
fundamental right that is impaired by the city
ordinance. Moreover, there are no allegations which
identify a specific right that is secured by the ninth
amendment. Therefore, [the plaintiff] cannot maintain
a claim under the ninth amendment.
Rothner v. City of Chicago, 725 F. Supp. 945, 949-50 (N.D. Ill. 1989) (internal
citations omitted).
Similarly, the plaintiff in this case has not cited any authority for any
right not already recognized by other constitutional amendments that is
impaired by the Green Bay ordinance, or any specific, unarticulated right
15

protected by the Ninth Amendment. The court will not allow the plaintiff to
proceed on a Ninth Amendment claim. The complaint also fails to state a claim
under the Americans with Disabilities Act. “The ADA prohibits employers from
discriminating against disabled employees because of their disability. 42 U.S.C.
§ 12112(a).” Dickerson v. Bd. of Trs. of Comm. Coll. Dist. No. 522, 657 F.3d
595, 599 (7th Cir. 2011). The plaintiff has not sued an employer, has not
alleged a disability, and has not alleged that he was denied employment due to
a disability. The court will not allow the plaintiff to proceed on an ADA claim.
Having established that the plaintiff may proceed on his due process and
ex post facto claims against the City of Green Bay, the court turns to the
question of what kind of relief he may pursue. As mentioned above, the plaintiff
asks for declaratory relief (repeal of the challenged ordinances) and injunctive
relief (enjoining the defendants from enforcing the ordinances). He also asks for
monetary (compensatory) damages, along with costs and fees. Finally, he
requests damages for “any and all Registered Sex Offenders” impacted by the
ordinances.
With respect to the plaintiff’s requests for declaratory and injunctive
relief, the court finds that the plaintiff lacks standing to pursue these forms of
relief against the City of Green Bay. The plaintiff has not alleged that he
continues to suffer adverse effects from the allegedly unconstitutional sex
offender ordinances, see Derfus, 42 F. Supp. 3d at 895—indeed, the plaintiff
currently is incarcerated, and cannot reside anywhere outside the Oshkosh
Correctional Institution. The plaintiff has not demonstrated that the harm that
16

he will suffer such adverse effects in the future is imminent. The court is aware
from other cases that the plaintiff has filed that he is not scheduled to be
released from custody for several years. Thus, any threat of injury to the
plaintiff vis-á-vis the sex offender ordinances “simply is too ‘conjectural’ and
‘hypothetical’ to confer standing here.” Id. at 896 (citing Johnson v. City of
Chicago, Case No. 12-cv-8594, 2013 WL 3811545, at *6 (N.D. Ill. July 22,
2013) and Beley v. City of Chicago, Case No. 12-cv-9714, 2013 WL 3270668, at
*3-4 (N.D. Ill. June 27, 2013)).
With respect to the plaintiff’s request for damages on behalf of any
registered sex offender who has suffered as a result of the Green Bay
ordinance, the plaintiff has no standing to make such a request. He has not
filed a request that this court certify his case as a class action under Fed. R.
Civ. P. 23, and the court has not certified a class. Without such a certification,
the plaintiff cannot request relief on behalf of individuals who are not plaintiffs
in this suit.
The court will allow the plaintiff to proceed with his requests for
monetary damages—compensatory and punitive damages, as well as costs and
fees.
III.

PLAINTIFF’S OTHER MOTIONS
The plaintiff has filed three 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

17

documents 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. 6. 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. 11. The court grants that request to the extent that it issues
this screening order.
18

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 the
plaintiff’s prison trust account the $350.00 balance of the filing fee by
collecting monthly payments from the 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 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 also DENIES the plaintiff’s
motion to publish all decisions. Dkt. No. 6.
The court DISMISSES the following defendants: the City of DePere, the
Village of Howard, the Village of Denmark, the Village of Ashwaubenon, the
Village of Allouez, the Village of Bellevue, the Town of Glenmore, the Town of
Green Bay, the Village of Hobart, the Town of Humboldt, the Town of Lawrence,
the Town of Morrison, the Town of Scott, the Village of Suamico, the Village of
Pulaski, and the Village of Wrightstown.

19

The court ORDERS that the plaintiff may proceed on his due process
and ex post facto claims against the City of Green Bay for monetary damages
only.
The court further ORDERS the United States Marshal to serve a copy of
the complaint and this order upon the defendant pursuant to Federal Rule of
Civil Procedure 4. The court advises the plaintiff that Congress requires the
U.S. Marshals Service to charge for making or attempting such service. 28
U.S.C. §1921(a). The current fee for waiver-of-service packages is $8.00 per
item mailed. The full fee schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the U.S. Marshals
Service precisely because in forma pauperis plaintiffs are indigent, it has not
made any provision for these fees to be waived either by the court or by the
U.S. Marshals Service.
The court ORDERS that the defendant served with the complaint shall
file a responsive pleading to the complaint.
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,
20

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 the plaintiff that if he does not timely file
documents, the court may dismiss his case for failure to prosecute.
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 21st day of September, 2015.

21