Weiss v. Donalds et al

Filing 68

ORDER signed by Judge J.P. Stadtmueller on 8/28/2017: GRANTING 40 Defendants Ruth Spielvogel-Donalds, Laurie Kuhn, John Langdon, and Mark Kautzmann's Motion for Summary Judgment; GRANTING 47 Defendant Matthew Kangas' Motion for Summary Judgment; DENYING as moot 47 Defendant Matthew Kangas' Motion for Judgment on the Pleadings; and DISMISSING action with prejudice. (cc: all counsel, via mail to Mark A. Weiss at Wisconsin Resource Center) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK A. WEISS,
Plaintiff,

Case No. 16-CV-219-JPS

v.
RUTH SPIELVOGEL-DONALDS,
LAURIE KUHN, JOHN LANGDON,
MARK KAUTZMANN, and MATTHEW
KANGAS,

ORDER

Defendants.

1.

INTRODUCTION
Plaintiff Mark A. Weiss (“Weiss”), a prisoner, brings this action

pursuant to 42 U.S.C. § 1983 challenging the conditions imposed on him in
December 2009 as part of the community supervision portion of a state
criminal sentence. At the core of Weiss’ complaint is his disagreement with
the manner in which defendant parole agents Ruth Spielvogel-Donalds
(“Spielvogel-Donalds”),

Laurie

Kuhn

(“Kuhn”),

John

Langdon

(“Langdon”), and Mark Kautzmann (“Kautzmann”) (collectively, the “state
defendants”), and defendant social worker Matthew Kangas (“Kangas”),
applied the conditions of community supervision to him; he claims they did
so unconstitutionally.1 Weiss also alleges that certain of the state defendants
acted unconstitutionally when they caused his community supervision to
be revoked. The state defendants filed a motion for summary judgment on

The spellings of the defendants’ names, taken from their filings, reflect
corrections of misspellings in the plaintiff’s complaint.
1

December 30, 2016. (Docket #40). One the same day, Kangas, represented
by separate counsel, filed a motion for judgment on the pleadings and, in
the alternative, a motion for summary judgment. (Docket #47). Weiss filed
a timely response on January 20, 2017, though it is not clear to which motion
Weiss intended to respond. (Docket #53). The state defendants and Kangas
filed their replies on February 6 and 7, respectively. (Docket #54, #55). Weiss
then filed a second, untimely, response brief and affidavit on March 13,
2017.2 (Docket #57). The motions are fully briefed and, for the reasons stated
below, the Court will grant both Kangas’ and the state defendants’ motions
for summary judgment.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,

Civil Local Rule 56(b)(2) requires the non-movant’s response to a
summary judgment motion be filed within 30 days of service of the motion.
2

Page 2 of 24

691 (7th Cir. 2010). The party opposing summary judgment “need not
match the movant witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

BACKGROUND
3.1

Plaintiff’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Weiss failed to dispute
them. In the Court’s scheduling order, entered August 26, 2016, Weiss was
warned about the requirements for opposing a motion for summary
judgment. (Docket #29 at 1-2). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission.
In the state defendants’ motion for summary judgment, they too
warned Weiss about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #40). He was provided with additional
copies of those Rules along with the state defendants’ motion. (Docket #401). In connection with their motion, the state defendants filed a supporting
statement of material facts that complied with the applicable procedural
rules. (Docket #42). It contained short, numbered paragraphs concisely
stating those facts which the defendants proposed to be beyond dispute,
with supporting citations to the attached evidentiary materials. See id.
Defendant Kangas also filed, in connection with his motion for summary
judgment, a supporting statement of material facts that complied with the
applicable procedural rules. (Docket #50). It, too, contained short,
numbered paragraphs concisely stating those facts which Kangas proposed
Page 3 of 24

to be beyond dispute, with supporting citations to the attached evidentiary
materials. See id.
Weiss submitted a six-page “memorandum of law” in response,
though it is unclear whose motion his submission is in response to. (Docket
#53). In his submission, Weiss makes largely incoherent arguments about
immunity, discrimination, ex-post facto laws, double jeopardy, and due
process that were not part of his complaint. Id. Very little of Weiss’
submission appears to be relevant to the case at hand. Further, it is not
sworn and is not accompanied by any documents or other evidence. Weiss’
response does not attempt to address the defendants’ statements of fact.
Weiss then filed an untimely second “memorandum of law,” twenty
pages in length, which sets out in barely comprehensible prose various facts
and legal theories that do not relate in a meaningful way to the claims in his
complaint.

(Docket

#57).

This

second

memorandum

includes

a

“verification” that Weiss “declare[s] that this motion of consolidations, and
rebuttals to refute the esstopple [sic] of these defendants unclean hands
who ripped me off and cheated me, is true and completely correct under
penality [sic] of perjury 28 U.S.C. pursuant 1746.” Id. at 20. Even if the Court
were to overlook the untimeliness of Weiss’ second response, and Weiss’
disobedience of the rule allowing only one brief in response to a motion for
summary judgment, the Court nonetheless finds this second memorandum
insufficient to contest the defendants’ proposed facts. Weiss has not
directed the Court to the facts he disputes, and he has not provided the
Court with evidence supporting those disputes or his own proposed facts.
Despite being twice warned of the strictures of summary judgment
procedure, Weiss ignored those rules by failing to properly dispute the
defendants’ proffered facts with citations to relevant, admissible evidence.
Page 4 of 24

Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required
to liberally construe a pro se plaintiff’s filings, it cannot act as his lawyer,
and it cannot delve through the record to find favorable evidence for him.
Thus, the Court will, unless otherwise stated, deem the defendants’ facts
undisputed for purposes of deciding their motions for summary judgment.
See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x
513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce
procedural rules against pro se litigants).
3.2

Relevant Material Facts3

In 1995, Weiss was found not guilty by reason of insanity of the
second-degree sexual assault of his mother. This conviction required Weiss
to register as a sex offender. After his release, Weiss was convicted of
stalking in 2008, for which he served a term of imprisonment. He was
released to community supervision on December 15, 2009. Upon his release,
Weiss’ assigned parole agent Laurie Kuhn (“Kuhn”) temporarily placed
Weiss at Columbus House, a halfway house for offenders released from
prison. He spent approximately fifty days at Columbus House before
obtaining his own residence in February 2010.
As part of the conditions of his release on community supervision,
Weiss signed and agreed to be bound by two sets of rules: the standard
community rules of supervision and the sex offender rules. The rules
required Weiss to participate in sex offender treatment, including group
therapy. During a treatment session in February 2010, Weiss refused to
admit his offense in violation of his rules and the expectations of the

These facts are taken from the state defendants’ proposed findings of fact,
(Docket #42), unless otherwise noted.
3

Page 5 of 24

treatment provider and was removed from the treatment session. The social
worker acting as the facilitator for Weiss’ treatment group, Kangas,
recorded the incident in his attendance log for that day. Weiss was placed
into custody in county jail, at the direction of Weiss’ new parole agent,
Langdon, and possibly Spielvogel-Donalds as Langdon’s supervisor (the
state defendants’ proposed facts are not clear on this point), for violating
the conditions of his community supervision. Two days later, Weiss was
released when he signed a written statement admitting his offense and
agreeing to cooperate with treatment going forward.
Also in February 2010, Langdon, and Spielvogel-Donalds as his
supervisor, put a no contact order in place between Weiss and an older
woman he identified as his girlfriend, Maria Scozzoro (“Scozzoro”).
Langdon and Kuhn had spoken with Scozzoro and both were concerned
that Weiss was forming an unhealthy attachment to a vulnerable older
woman that might impede his continued treatment and rehabilitation.
Scozzoro had inquired about pursuing a sexual relationship with Weiss,
despite being twenty years his senior, and Langdon was concerned that
Scozzoro resembled Weiss’ prior victim in age.
On March 24, 2011, Langdon received a report from Weiss’ neighbor,
a young woman, that Weiss had exposed himself to her and encouraged her
to perform oral sex on him when she asked to borrow a cigarette. The
neighbor also reported that Weiss had attempted to force his way into her
apartment. Langdon referred the matter to the police and then, after
consulting with Spielvogel-Donalds, pursued revocation of Weiss’
community supervision. Langdon completed the appropriate paperwork
and participated in the preliminary and final revocation hearings, where
Weiss had representation.
Page 6 of 24

The administrative law judge presiding over the revocation
proceeding declined to revoke Weiss’ parole. Weiss was then released back
into the community, having received custody credit for his time in jail, and
placed on electronic monitoring. Spielvogel-Donalds assigned parole agent
Kautzmann to replace Langdon as Weiss’ agent. Weiss signed another copy
of the rules of community supervision and the standard sex offender rules
with Kautzmann on August 1, 2011.
In October 2011, Kautzmann had Weiss taken into custody after he
learned that Weiss had violated the conditions of the electronic monitoring
program, had left Kenosha County without permission, and had engaged
in stalking behavior. Kautzmann, in consultation with Spielvogel-Donalds,
elected to pursue revocation. Weiss admitted to numerous violations in his
own written statement. Following a hearing, an administrative law judge
revoked Weiss’ supervision and he was sent to prison.
On February 24, 2016, Weiss filed his complaint in this case,
challenging several conditions of his 2009-’11 community supervision, as
well as the decisions by the defendants to pursue revocation on the two
occasions described above. (Docket #1).4 Specifically, Weiss takes issue with
the following: (i) being required to register as a sex offender; (ii) being
required to attend a sex offender treatment group; (iii) being required to
wear an ankle monitor; (iv) being placed in a halfway house for the first
According to the state defendants’ proposed facts and supporting
declarations, as well as the Wisconsin Offender Locator, available online at
http://offender.doc.state.wi.us/lop/home.do, Weiss was released from custody in
September 2016, during the pendency of this lawsuit. (Docket #42 at 22). On July
26, 2017, Weiss notified the Court that he would be returning to the Kenosha
County Jail, but subsequently informed the Court that he has been “binded over.”
(Docket #65 and #67). According to the Wisconsin Offender Locator, Weiss is
currently on active community supervision.
4

Page 7 of 24

month of his community supervision, where he claims to have been under
house arrest; (v) the “arbitrary” decision of Spielvogel-Donalds and
Langdon to seek a no-contact order between Weiss and Scozzoro; (vi) the
decision by Spielvogel-Donalds and Langdon to have him “locked up”
because he “really didn’t want to talk about” his sex offenses with Kangas
during a treatment session; (vii) having his job at Wendy’s “taken . . . away”
from him by Langdon, Spielvogel-Donalds, and Kautzmann; (viii)
spending time in jail during the pendency of revocation proceedings that
Langdon initiated based on allegations of harassment from Weiss’
neighbor; and (ix) returning to custody upon revocation of his community
supervision. Id.
The defendants provided evidence in the form of declarations and
exhibits contesting many of the allegations in Weiss’ complaint. (Docket
#42-46, 49-50). As noted earlier, Weiss did not respond in a meaningful way
to the defendants’ proposed facts, and therefore the defendants’ facts will
be considered undisputed. Further discussion of specific facts relating to
each of Weiss’ allegations will be set forth below where appropriate.
4.

ANALYSIS
4.1

Matthew Kangas

At all times relevant to this action, Kangas was a licensed clinical
social worker in the State of Wisconsin and owned a counseling service,
that, through various contracts, provided sex offender programming and
treatment for the Wisconsin Department of Corrections. (Docket #50). In
and around 2010, Kangas facilitated a weekly treatment group in Kenosha,
Wisconsin, in which Weiss was a participant. Id. At the February 8, 2010
treatment session, Weiss failed to admit sexual intent regarding his sex
offenses, as is required under the treatment protocol that Weiss signed. Id.
Page 8 of 24

Weiss was removed from the group for the day, and Kangas recorded the
removal in his attendance log. Id.
Weiss alludes to this incident in his complaint, as well as another
incident allegedly involving Kangas. The following two allegations are the
only allegations in Weiss’ complaint relating to Kangas:
• “Ruth Donalds, and Agent John Langdon, along with Matt
Kangus, locked me up in the county jail two different times because Matt
Kangus did not like what I told him how I felt about my two cases which I
really didn’t want to talk about my case of 1995-CF-178 or the 08-CF-210
Cases.” (Docket #16 at 4).
• “Along with Supervisor Ruth Donalds and John Langdon, and
Matt Kangus who went to my job at Wendy’s and told my manager that he
was to let me go and I could not work there no more, and I couldn’t go to
any fast food service restaurants anymore while I was on probation.
Discrimination ex post facto violations, along with my 1st, 5th, 8th, 14th
Amendments violated, by these agents.” Id.
Kangas testifies in his declaration that he had “no authority or ability
to detain, put into custody, or ‘lock up’ Weiss” and he “did not correspond
or have interaction with, and had no involvement in terminating Weiss’
employment at a Wendy’s restaurant located in Kenosha or Racine,
Wisconsin, nor did [he] have any correspondence with any of Weiss’
employers, ever.” (Docket #49 at 2-3). As noted above, Weiss has not
disputed Kangas’ evidence. Based on the evidence before the Court, the
Court is constrained to find that Kangas was not sufficiently involved in
any deprivation of Weiss’ rights to warrant liability. Vance v. Peters, 97 F.3d
987, 991 (7th Cir. 1996) (“Section 1983 creates a cause of action based on
personal liability and predicated upon fault; thus, liability does not attach
Page 9 of 24

unless the individual defendant caused or participated in a constitutional
deprivation.”). Kangas’ motion for summary judgment will be granted.
4.2

The State Defendants

Weiss’ remaining claims involve the state defendants’ enforcement
of Weiss’ conditions of community supervision. The Court begins its
analysis on these claims by evaluating whether, and to what extent, a
Section 1983 plaintiff is entitled to challenge to the conditions of his
community supervision.
The Seventh Circuit teaches, first, that a plaintiff claiming to have
been revoked based on violations of allegedly unconstitutional terms of
supervision, and seeking as his relief release from custody, must bring such
a claim in a petition for a writ of habeas corpus. Henderson v. Bryant, 606 F.
App’x 301, 303-04 (7th Cir. 2015).5 Conditions of release or supervision are
a form of custody, and a challenge to those conditions is an attack on the
fact or duration of the plaintiff’s confinement, which “is the traditional
function of the writ of habeas corpus.” Drollinger v. Milligan, 552 F.2d 1220,
1225 (7th Cir. 1977). To the extent Weiss wishes to challenge his
recommitment to custody, he must file a habeas petition in a separate suit.
Further, Weiss cannot seek damages “for having been recommitted
based on the violation of release conditions that he contends are
unconstitutional” because “[a] successful damages claim would vitiate the

The state defendants failed to mention Henderson, the most recent
authority from the Seventh Circuit bearing directly on the issues raised by this
case. It is not the Court’s job to research arguments on a party’s behalf. Luddington
v. Ind. Bell Tel. Co., 966 F.2d 225, 230 (7th Cir. 1992) (“If we assume lawyers’
responsibilities, we unbalance the market for legal services and take time away
from our consideration and decision of other cases.”).
5

Page 10 of 24

basis for his commitment, and Heck v. Humphrey . . . bars civil damages
actions where a ‘judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence.’” Henderson, 606 F. App’x at 304
(citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). To bring such a claim,
Weiss “must first have the custody invalidated, either in state proceedings
or through a federal collateral attack under 28 U.S.C. § 2254, before he can
refile those claims and proceed under § 1983.” Id. (citations omitted).
Next, to the extent Weiss seeks to invalidate the conditions of which
he complains so as to never again become constrained by them upon
release, his challenge is premature. If Weiss were currently on community
supervision, he could challenge the constitutionality of the supervision
conditions through a petition for a writ of habeas corpus. Id. (citing Williams
v. Wisconsin, 336 F.3d 576, 579–80 (7th Cir. 2003); Drollinger, 552 F.2d at
1224–25. But because Weiss is no longer subject to the conditions of his
2009-’11 community supervision, about which he complains, he cannot
challenge them in this suit.
Finally, it appears that, at least in portions of Weiss’ complaint, he
seeks damages for having had to endure unconstitutional conditions of
supervision that did not lead to his recommitment to custody. This is the
only (narrow) avenue that could possibly afford him the relief he seeks,
because “a successful damages action challenging [such] conditions . . .
would not imply the invalidity of his current confinement, [and therefore]
Heck does not bar a § 1983 claim challenging them.” Id. However, insofar as
Weiss “seek[s] damages from the defendants for enforcing release
conditions that a court specifically ordered, the defendants may be
protected by absolute quasi-judicial immunity, which would bar any

Page 11 of 24

recovery.” Id. (citing Richman v. Sheahan, 270 F.3d 430, 436–38 (7th Cir. 2001);
Henry v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir. 1986)).
The state defendants’ primary argument in their summary judgment
motion is that they are protected by this immunity. (Docket #41 at 5-8). The
Supreme Court instructs district courts to address the merits of a
defendant’s immunity defense as soon as possible, and the Court will
organize the remainder of its analysis accordingly. See Siegert v. Gilley, 500
U.S. 226, 232 (1991) (“[O]ne of the purposes of immunity, absolute or
qualified, is to spare a defendant not only unwarranted liability, but
unwarranted demands customarily imposed upon those defending a long
drawn out lawsuit.”).
4.2.1

Absolute Quasi-Judicial Immunity

Absolute immunity is a complete defense to liability for monetary
damages. It is “‘of a rare and exceptional character[,]’” Auriemma v.
Montgomery, 860 F.2d 273, 275 (7th Cir. 1988) (quoting Cleavinger v. Saxner,
474 U.S. 193, 202 (1985)), and the presumption is against granting
government officials absolute immunity, Houston v. Partee, 978 F.2d 362, 368
(7th Cir. 1992).
The Seventh Circuit applies a “functional approach” to determine
whether a government official is entitled to absolute immunity. Wilson v.
Kelkhoff, 86 F.3d 1438, 1443 (7th Cir. 1996). That is, courts are to look to the
“nature of the function performed, not the identity of the actor who
performed it” when deciding whether absolutely immunity is appropriate.
Id. Under the functional approach, both a judge performing “truly judicial
acts” as well as officials performing “functionally comparable” acts in other
contexts are accorded absolute immunity. Id. (citing Forrester v. White, 484
U.S. 219, 229 (1988); Butz v. Economou, 438 U.S. 478, 512 (1978)). For nonPage 12 of 24

judicial officers “whose conduct is functionally comparable to those of
judges, . . . the rationale for applying absolute immunity is much the same
as for judges: that officials making quasi-judicial decisions should be free of
the harassment and intimidation associated with litigation.” Richman v.
Sheahan, 270 F.3d 430, 435 (7th Cir. 2001) (internal quotations omitted).
The decisions of parole board members to grant, deny, or revoke
parole are absolutely immune from damages liability. Walrath v. United
States, 35 F.3d 277, 281 (1994). In addition, activities that are “inexorably
connected with the execution of parole revocation procedures and are
analogous to judicial action” are also entitled to absolute immunity. Id. at
282 (citation omitted). For example, the Seventh Circuit affirmed
application of absolute immunity for a case analyst employed by the United
State Parole Commission who was accused of issuing an arrest warrant for
a parole revocation without probable cause. Walrath, 35 F.3d at 282. In
finding that the analyst was entitled to absolute immunity, the court noted
that the issuing of an arrest warrant for a parole violation has many judicial
characteristics: “it involves the exercise of discretion in applying the law to
the facts of a particular case, poses a heightened risk of vexatious litigation,
and is open to correction through ordinary mechanisms of review.” Id.; see
also Smith v. Gomez, 550 F.3d 613, 619 (7th Cir. 2008) (applying immunity to
the discretionary decision by a parole agent to place a “parole hold” on the
plaintiff and recommend revocation for violating a condition of his parole).
By contrast, when a plaintiff challenges the manner in which an
officer enforces a judge’s decision, the “officer’s fidelity to the specific
orders of the judge marks the boundary for labeling the act ‘quasi-judicial.’”
Richman v. Sheahan, 270 F.3d 430, 436 (7th Cir. 2001). To be sure, the line
between immunized and non-immunized conduct can be very thin. For
Page 13 of 24

example, in the context of parole, the Seventh Circuit has held that an officer
who initiates revocation proceedings by investigating the parolee’s conduct
and filing a violation report is not protected by absolute immunity. Wilson,
86 F.3d at 1445-46. The Wilson court distinguished the parole agent, acting
in an investigatory role, from the case analyst in Walrath who was
immunized for issuing an arrest warrant:
By initiating the revocation process, Kelkhoff's conduct was
functionally different from the department employee
accorded absolute immunity in Walrath. . . . The employee in
Walrath was performing an adjudicative function by making
an independent probable cause determination in deciding to
issue an arrest warrant based upon evidence gathered by
others. Kelkhoff, by investigating the charge and then filing
the notice of charges and violation report, performed a
function analogous to an employee who seeks an arrest
warrant. Such conduct does not have a prosecutorial or
judicial analog and, consequently, does not fall within the
ambit of absolute immunity.
Id. at 1446 (citation omitted). In other words, an official is not entitled to
immunity when his acts are “analogous to those of a police officer—i.e.
investigation and reporting on offender conduct[,]” but he is entitled to
immunity when he performs an adjudicative function such as “making a
probable cause determination in deciding to issue an arrest warrant based
upon evidence gathered by others[.]” Cherry v. Husz, No. 14-CV-1539-JPS,
2015 WL 4527978, at *5 (E.D. Wis. July 27, 2015) (citation omitted).
Some of the actions taken by the state defendants about which Weiss
complains fall squarely within the class of conduct for which absolute
immunity is provided. First, the state defendants are immunized from any
role they had in requiring Weiss to attend sex offender treatment; such
treatment is required by the Rules of Community Supervision and Standard

Page 14 of 24

Sex Offender Rules applied to Weiss based on his second-degree sexual
assault and stalking convictions. (Docket #42 at 5-6, 9-10); see also Henry, 808
F.2d at 1239 (“[P]olice officers, sheriffs, and other court officers who act in
reliance on a facially valid court order are entitled to quasi-judicial
immunity from suit under § 1983 for damages.”). Second, the defendants
named here also enjoy absolute immunity for requiring Weiss to register as
a sex offender; Weiss has already unsuccessfully contested, in a previous
federal lawsuit, the requirement that he register as a sex offender. Weiss v.
Dep’t of Health and Family Soc. Servs. and Wis. Dep’t of Corr., Case No. 14-CV518 (E.D. Wis. Oct. 29, 2014) (Docket #19). The Court in that case held that
Weiss is required by state law to register as a sex offender under Wisconsin
Statutes section 301.45. Id. Absolute immunity protects the defendants for
enforcing the law, confirmed by court order, that requires Weiss to register
as a sex offender. Third, Langdon and Spielvogel-Donalds, the state
defendants involved in placing Weiss into custody upon learning that he
violated the rules of supervision by refusing to admit his sex offense during
therapy, are immune from liability for that conduct, which is akin to issuing
an arrest warrant based upon evidence gathered by others. Walrath, 35 F.3d
at 282.6

Even if Langdon and Spielvogel-Donalds did not enjoy absolute immunity
on this claim, the claim fails for an independent reason: time has expired for Weiss
to bring it. The statute of limitations for civil rights claims is six years. Gray v. Lacke,
885 F.2d 399, 407 (7th Cir. 1989) (courts borrow the most analogous state statute of
limitations in Section 1983 actions, and in Wisconsin the six-year personal rights
statute of limitations, Wis. Stat. § 893.53, applies). Civil rights claims accrue when
the plaintiff knows or should know that his constitutional rights have been
violated. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). Weiss knew or had
reason to know that his rights had been violated when he was placed in jail on
February 8, 2010 for failing to admit his sex offense during therapy, meaning that
his claim expired on February 8, 2016—two weeks before he brought this action.
6

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The other conduct by the defendants about which Weiss complains
does not fit as squarely within the bounds of quasi-judicial immunity
because it is more “analogous to [conduct] of a police officer—i.e.
investigation and reporting on offender conduct[,]” than to conduct of a
judge or prosecutor who makes “a probable cause determination in
deciding to issue [or seek] an arrest warrant based upon evidence gathered
by others[.]” Cherry, 2015 WL 4527978, at *5.
First, Spielvogel-Donalds and Langdon do not enjoy absolute
immunity for their roles in causing revocation proceedings to occur based
on the allegations from Weiss’ neighbor that Weiss had harassed her.
Langdon personally investigated Weiss’ neighbor’s allegations that Weiss
had forced his way into her apartment and exposed himself to her. (Docket
#42 at 17). He spoke to the property company for the building where Weiss
and Weiss’ neighbor lived and also spoke to the neighbor before he
ultimately decided, in consultation with Spielvogel-Donalds, to file a
Violations Investigation Report and recommend revocation. Id. at 17-18.
The defendants’ investigation, collection of evidence, and report on such
evidence is akin to a police officer’s work, and does not warrant immunity.
Wilson, 86 F.3d at 1445 (“initiating the revocation proceedings by filing the
violation report and notice of charges” is not covered by absolute
immunity).
Similarly, Spielvogel-Donalds and Langdon do not enjoy absolute
immunity for their roles in securing the issuance of a no-contact order
between Weiss and his girlfriend, Scozzoro. Langdon had face-to-face
conversations with Scozzoro about her relationship with Weiss and, in light
of the age difference between Weiss and Scozzoro that was similar to the
age difference between Weiss and his previous victim, decided the couples’
Page 16 of 24

relationship was unhealthy and inappropriate. Id. at 14-16. Langdon, in
consultation with Spielvogel-Donalds, limited Weiss’ contact with
Scozzoro and ultimately forbade their contact. Id. As with SpielvogelDonalds’ and Langdon’s collection and weighing of evidence regarding
Weiss’ harassment of his neighbor, their evaluation of Weiss’ relationship
with Scozzoro, and decision to issue a no-contact order, is not sufficiently
adjudicative to warrant absolute immunity.
Next, Kuhn’s placement of Weiss in a halfway house for the first
month of his community supervision, where he claims to have been under
house arrest in violation of his Eighth Amendment rights, also does not
warrant absolute immunity. Kuhn states that she placed Weiss at the
halfway house because he was estranged from his family and had no place
else to go, and she did not think it appropriate to release a sex offender with
a history of mental illness into the community without a placement. (Docket
#42 at 13). While this decision has characteristics of adjudication, it is not
clear on the facts presented that Kuhn made an “independent . . .
determination . . . based upon evidence gathered by others.” Wilson, 86 F.3d
at 1446. Instead, Kuhn’s decision appears to have been a typical
administrative task performed by a parole agent, and the Seventh Circuit
does not afford absolute immunity to a parole officer’s “day-to-day duties.”
Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005).
Other of the defendants’ challenged conduct falls closer to the line
between investigatory conduct that is not entitled to absolute immunity and
adjudicative conduct that is. But on the facts presented, the Court cannot
find such immunity is proper at this juncture. Wilson, 86 F.3d at 1443
(“Absolute immunity is only accorded for limited functions; ‘[t]he
presumption is that qualified rather than absolute immunity is sufficient to
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protect government officials in the exercise of their duties.’ . . . Thus, the
official seeking the benefit of immunity bears the burden of proving that it
is justified.”) (citation omitted).
Such is the case with the decision by Kautzmann, as Weiss’ agent, in
consultation with Spielvogel-Donalds, to place Weiss on electronic
monitoring. The defendants state in their facts and supporting declarations
that an agent’s decision to require location monitoring is a discretionary
one. (Docket #42 at 8-9). Kautzmann decided, based on Weiss’ previous
stalking conviction, that electronic monitoring would help to ensure
compliance with the rules of supervision concerning when Weiss was
allowed to leave his home and for what reasons. Id. at 9. While Kautzmann’s
decision appears to be have been made based on evidence available to him,
but not collected by him, it is not so clearly adjudicative as to warrant
absolute immunity at this juncture. The immunity analysis on this issue
would likely be different if electronic monitoring was court-ordered, but
that fact is not before the Court here. Richman, 270 F.3d at 436 (an officer’s
fidelity to “specific orders of the judge” is quasi-judicial).
Similarly, the facts presented do not warrant absolute immunity for
the roles Langdon and Spielvogel-Donalds played in causing Weiss not to
be employed at a Wendy’s restaurant.7 According to the state defendants’
proposed facts, “[i]t is standard policy and procedure that sex offenders on
probation and parole are not allowed to be employed in places that also
employ minors or that are frequented by minors, including fast food

Weiss also claims that Kautzmann had some role to play in his termination
from Wendy’s, but Kautzmann affirmatively states in his declaration that he had
no such involvement, (Docket #45 at 6), and Weiss has not matched that evidence
with any admissible evidence of his own.
7

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restaurants. This is prohibited for all sex offenders, even those who have
committed a sex offense that did not involve minors.” (Docket #42 at 6-7).
Exceptions can be made if the employer can provide third-shift
employment, where minors would not be eligible to work. Id. at 7. Neither
Langdon nor Spielvogel-Donalds have a specific recollection of contacting
Wendy’s, but Langdon states that he informed Weiss that Weiss could only
work at Wendy’s if his shifts were during the night, or on third shift, and it
was Langdon’s practice to contact employers to advise them of the same.
Id. at 7-8. It does not appear from the state defendants’ proposed facts that
the employment rule is court-ordered. While the decision by Langdon (and
Spielvogel-Donalds, to the extent she approved it) to disallow Weiss from
working at Wendy’s has hallmarks of judicial function—applying a
department policy based on the nature of the parolee’s offense is similar to
the role a judge plays at sentencing—it was not clearly adjudicative. It does
not appear that Langdon’s decision involved, for example, the weighing of
evidence inherent in making a probable cause determination. Cherry, 2015
WL 4527978, at *5. The facts presented by the state defendants are not
sufficient to warrant absolute immunity for forbidding Weiss’ employment
at Wendy’s.
In sum, the state defendants are absolutely immune from Weiss’
claims related to registering as a sex offender, attending sex offender
treatment, and being placed into custody after failing to admit his offenses
during that treatment. The state defendants are not absolutely immune
from Weiss’ claims related to (i) the initiation of revocation proceedings
based on allegations from Weiss’ neighbor that Weiss had harassed her; (ii)
the issuance of a no-contact order between Weiss and his girlfriend,
Scozzoro; (iii) Weiss’ placement in a halfway house; (iv) Weiss’ placement
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on electronic monitoring; and (v) Weiss’ ban from working day shifts at
Wendy’s.
But this does not mark the end of the immunity analysis. As the
Seventh Circuit has explained, the doctrine of absolute immunity is
intentionally narrow because, in many cases, “qualified immunity is
generally deemed sufficient to protect a public official from vexatious
litigation.” Walrath, 35 F.3d at 281 (italics added). For the reasons explained
below, the state defendants are protected by qualified immunity for the
actions described above that do not fall within the scope of absolute
immunity.
4.2.2

Qualified Immunity

The doctrine of 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)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity
allows for government officials to be held accountable when they exercise
power irresponsibly, but also shields them from harassment, distraction,
and liability when they perform their duties reasonably. Id.
To resolve a government official’s qualified immunity claim, courts
undertake two inquiries: they determine whether the facts a plaintiff has
alleged make out a violation of a constitutional right and whether the right
at issue was “clearly established” at the time of defendant’s alleged
misconduct. Id. at 232. Though the Supreme Court at one time mandated
the sequence of these two inquiries, that is no longer the case. Id. at 236. As
to the second inquiry, it is the plaintiff’s burden to show that the right at
issue was “clearly established under applicable law at the time and under
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the circumstances that the defendant official acted.” Easterling, 528 Fed.
App’x at 656 (citing Pearson, 555 U.S. at 232). Courts should “not require a
case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al–Kidd, 563
U.S. 731, 741 (2011). “Immunity should be applied unless ‘it has been
authoritatively decided that certain conduct is forbidden.’” Upton v.
Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (citation omitted).
The plaintiff offered no precedent to support a finding that he had a
clearly established right not to (i) face revocation proceedings based on
allegations from his neighbor that he forced himself into her apartment and
exposed himself to her, (ii) be forbidden to contact his girlfriend, with
whom his agents believed he had an inappropriate relationship; (iii) be
placed in a halfway house upon release from custody when he had no other
place to live; (iv) be placed on electronic monitoring; and (v) be forbidden
to work day shifts at Wendy’s. It is not even entirely clear which
constitutional rights Weiss believes are implicated by these deprivations,
though he mentions the First, Fifth, Eighth, and Fourteenth Amendments
at various points in his complaint. (Docket #16). The Court cannot say that
it has been “authoritatively decided” that the parole officers’ actions, as
described here, violated any of Weiss’ rights.
First, as to the requirement that Weiss wear an electronic monitoring
device, the Supreme Court has held that electronic monitoring of sex
offenders is permitted if reasonable, Grady v. North Carolina, 135 S. Ct. 1368,
1371 (2015), and the Seventh Circuit has held that, at least for sex offenders
whose victims are children, a lifetime location monitoring requirement
upon conviction is constitutional, Belleau v. Wall, 811 F.3d 929, 932 (7th Cir.
2016). Therefore, the state defendants’ discretionary decision to impose
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location monitoring in Weiss’ case based on his history of stalking is
reasonable, and they are entitled to qualified immunity therefor.
As to Kuhn’s placement of Weiss in a halfway house upon his release
from custody, Weiss has not met his burden to identify clearly established
precedent forbidding this action. To the contrary, the case law appears to
be unclear on this issue. For example, in a recent case involving a sex
offender who had reached his mandatory release date but could not secure
approved housing and was therefore detained in county jail at night after
his release date, the Seventh Circuit summarized the state of the relevant
law and ultimately decided qualified immunity was appropriate. Werner v.
Wall, 836 F.3d 751, 764 (7th Cir. 2016). If the law is unclear as to whether an
official can keep a sex offender in jail after his release date for want of
appropriate housing, certainly the law is sufficiently in flux to afford Kuhn
the protection of qualified immunity for her decision to place Weiss in a
halfway house under similar circumstances.8
As to the other conduct Weiss challenges—the decisions by
Spielvogel-Donalds and Langdon to initiate revocation proceedings based
on complaints of harassment by Weiss’ neighbor, to forbid Weiss’ contact
with his much older girlfriend,9 and to forbid daytime employment at

Even if Kuhn did not enjoy qualified immunity on this claim, the statute
of limitations has run and the claim fails for that reason as well. Gray, 885 F.2d at
407. Weiss knew or had reason to know that his rights had been violated when he
was placed at the halfway house on December 15, 2009, meaning that his claim
expired in middle December 2015—two months before he brought this action.
9The issue of the no-contact order is the rare instance in Weiss’ summary
judgment response where he seems to directly dispute facts presented by the state
defendants, though not artfully. Weiss indicates that he believes SpielvogelDonalds and Langdon sought the no-contact order because Weiss was having a
sexual relationship with Scozzoro, when in fact he merely “went out to lunch and
dinner” with her. (Docket #53 at 4). Even if the Court accepted this sentence in
8

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Wendy’s—the Court has simply not been directed to relevant authority
establishing that the defendants clearly overstepped the constitutional
bounds of their authority in making these decisions. Indeed, parole agents
are generally afforded “broad discretion” in their role of ensuring parolees
abide by the conditions of parole and progress toward prosocial behavior.
Morrissey v. Brewer, 408 U.S. 471, 479 (1972); see also Gagnon v. Scarpelli, 411
U.S. 778, 784 (1973) (“Because the probation or parole officer’s function is
not so much to compel conformance to a strict code of behavior as to
supervise a course of rehabilitation, he has been entrusted traditionally
with broad discretion to judge the progress of rehabilitation in individual
cases, and has been armed with the power to recommend or even to declare
revocation.”). Absent clear indication from the courts of appeal that the
defendant agents violated Weiss’ rights by taking the actions Weiss
challenges here, this Court is constrained to cloak the defendants’ actions
in qualified immunity.
Therefore, to the extent Weiss’ claims against the state defendants
are not barred by absolute quasi-judicial immunity, they are barred under
the doctrine of qualified immunity. The state defendants’ motion will be
granted and all of Weiss’ claims against them will be dismissed.

Weiss’ response brief as a proper avenue to dispute a proposed fact, the immunity
analysis does not change. Weiss has not provided, and the Court has not found,
authority indicating that a parole agent’s issuance of a no-contact order, even
when based on a misunderstanding, violates a protected right of the parolee.

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5.

CONCLUSION
For the reasons stated above, the record and the relevant authorities

oblige the Court to grant the motions for summary judgment filed by
Kangas10 and the state defendants and dismiss this case in its entirety.
Accordingly,
IT IS ORDERED that the state defendants’ motion for summary
judgment (Docket #40) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that defendant Kangas’ motion for
summary judgment (Docket #47) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that defendant Kangas’ motion for
judgment on the pleadings (Docket #47) be and the same is hereby DENIED
as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Because the Court finds summary judgment in Kangas’ favor is
appropriate, it need not consider Kangas’ alternative request for judgment on the
pleadings.
10

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