Kirch v. Baxter et al

Filing 31

ORDER signed by Judge J.P. Stadtmueller on 11/20/2017 GRANTING 24 Defendants' Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Douglas Kirch at Winnebago Correctional Center) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DOUGLAS KIRCH,
Plaintiff,

v.

KATIE BAXTER, CHAD LEMEROND,
and BOBBI JO CHRISTOPHERSON,

Case No. 17-CV-235-JPS

ORDER

Defendants.
1.

INTRODUCTION
On February 22, 2017, Plaintiff filed his Complaint in this matter.

(Docket #1). While on parole supervised by agents of the Wisconsin
Department of Corrections (“DOC”), Plaintiff alleges that those agents
violated his constitutional rights. (Docket #9 at 3-5). On March 14, 2017, the
Court screened Plaintiff’s Complaint and allowed him to proceed on two
claims. (Docket #9 at 6). On October 2, 2017, Defendants Chad Lemerond
(“Lemerond”) and Katie Baxter (“Baxter”), Plaintiff’s parole agents, and
Defendant Bobbi Christopherson (“Christopherson”),1 a field supervisor,
moved for summary judgment. (Docket #24). Plaintiff filed nothing in
response to the motion, and his time in which to do so has long since
expired. Civ. L. R. 7(b). For the reasons explained below, Defendants’
motion must be granted.

The record contains a number of different spellings for Christopherson’s
name. The Court uses the spelling from her affidavit. (Docket #29).
1

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).
3.

FACTUAL BACKGROUND
The relevant facts are undisputed because Plaintiff failed to dispute

them. In the Court’s scheduling order, entered April 19, 2017, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #13 at 3). 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 Defendants’ motion for summary judgment, they too
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #24). He was provided with additional
copies of those Rules along with Defendants’ motion. Id. at 2-12. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#26). It contained short, numbered paragraphs concisely stating those facts
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which Defendants proposed to be beyond dispute, with supporting
citations to the attached evidentiary materials. See id.
As noted above, Plaintiff filed absolutely nothing in response to
Defendants’ motion, much less a response to their statement of facts.
Despite being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to properly dispute
Defendants’ proffered facts with citations to relevant, admissible evidence.
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 Defendants’ facts
undisputed for purposes of deciding their motion 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). In the interest of brevity, the Court
assumes familiarity with those facts for the purposes of this Order. See
generally (Docket #26) (twenty-two pages of material facts).
4.

ANALYSIS
Without any filings from Plaintiff, Court must rely on the Complaint

itself to recount his claims and his allegations underlying them. Plaintiff
asserts that Lemerond imposed various conditions of parole which were
onerous and went beyond what was provided by court judgments or the
standard rules of community supervision. (Docket #9 at 3). This included
refusing to let Plaintiff travel to retrieve or visit his property, forcing him to
pay for a landline telephone, and setting a curfew which interfered with his
medical care. Id. at 3-4. Lemerond also placed Plaintiff on electronic
monitoring, which Plaintiff says prevented him from obtaining a goodPage 3 of 7

paying job. Id. Finally, Lemerond allegedly refused to let Plaintiff visit his
child though such contact was provided for in his divorce judgment. Id. at
4. Plaintiff ropes Christopherson into these complaints by alleging that he
reported his concerns to her, but she did nothing in response. Id. Plaintiff
also complains that Baxter obtained an extension of his parole period
because he owed court costs and fees, when his criminal judgment allegedly
did not permit such an extension. Id.
At screening, Plaintiff was allowed to proceed on two claims:
1) Lem[e]rond and [Christopherson’s] imposition of
conditions of probation beyond those permitted by the
applicable criminal judgment(s), or the imposition of existing
conditions in an unconstitutional manner, constituting
deliberate indifference to [Plaintiff’s] right to be free of those
conditions, in violation of the Eighth Amendment; and
2) Baxter’s attempt to extend [Plaintiff’s] term of
supervision in contravention of the applicable criminal
judgment(s) constituting deliberate indifference to his right to
be free of further supervision, in violation of the Eighth
Amendment.
(Docket #9 at 6). Plaintiff’s failure to oppose Defendants’ motion in any
form, standing alone, warrants granting the motion. Civ. L. R. 7(d).
Nevertheless, on the undisputed facts presented, it is clear that that the
allegations of Plaintiff’s Complaint are divorced from reality. Those facts
further demonstrate that Defendants are entitled to judgment as a matter of
law.
The Court begins with Lemerond. 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
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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.”).
Each of Lemerond’s actions fell within the broad discretion afforded
to him as a parole agent. Plaintiff was placed on electronic monitoring to
protect Vanderwyst, as he continually demonstrated that he would seek to
contact or intimidate her without regard for the harassment injunction or
the criminal court order prohibiting the same. Most of his other
complaints—paying for a landline, limiting his medical care because of a
curfew, and being unable to find a good job—also stemmed from the
electronic monitoring condition. Not only was this condition a valid
exercise of Lemerond’s authority, Plaintiff never complained about any of
these matters to Lemerond. Because he failed to address those concerns
with Lemerond prior to filing suit, he cannot be heard to complain about
them now. Finally, Lemerond appropriately withdrew the electronic
monitoring condition after Plaintiff demonstrated his willingness to abide
by the conditions of supervision.
Lemerond was also correct to limit Plaintiff’s contact with his child.
The divorce judgment stripped away Plaintiff’s custody and placement
rights. As provided in that judgment, and as he was reminded by
Lemerond, Plaintiff could have petitioned the court for a modification of
those determinations. He never attempted to do so. Further, allowing
Plaintiff to visit his child would directly undermine the prohibition on
contact with Vanderwyst, as she was given sole legal custody and
placement. In that vein, Lemerond’s action was also supported by Plaintiff’s
rules of supervision, to which Plaintiff had agreed to be bound, which
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permitted Lemerond to control contact between Plaintiff and the victims of
his crime. See also United States v. Showalter, 933 F.2d 573, 575 (7th Cir. 1991)
(courts are empowered to impose appropriate restrictions on an offender’s
association with certain people or groups).
Finally, Lemerond was entitled to restrict Plaintiff’s travel plans as
provided in the rules of his supervision. Lemerond was legitimately
concerned that Plaintiff’s plans to retrieve or check on his property were a
cover for further attempts to harass Vanderwyst. When law enforcement
investigations revealed that the property in question was either derelict
and/or valueless, Lemerond’s fears were reinforced. Plaintiff eventually
had friends help him retrieve or check on his property. As with the
electronic monitoring condition, the concerns Plaintiff offers in his
Complaint were not contemporaneously communicated to Lemerond.
As for Christopherson, Section 1983 liability may only be premised
on a person’s own conduct. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.
2009). Christopherson’s records reveal that she never received any
complaints from Plaintiff about his conditions of supervision. Though she
was available to give advice to Lemerond, Lemerond made the final
decisions on setting Plaintiff’s conditions and adjusting them throughout
his period of supervision. Even assuming Lemerond did violate Plaintiff’s
constitutional rights in some manner, Christopherson is not liable simply
because she was Lemerond’s supervisor. Id. at 593 (“Liability depends on
each defendant’s knowledge and actions, not on the knowledge or actions
of persons they supervise.”).
Baxter’s conduct is also blameless. She sought to extend Plaintiff’s
period of probation in accordance with Wisconsin law, which provides that
a probationer’s supervision period may be extended if they have not made
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a good-faith effort to pay their court-ordered financial obligations. Wis.
Stat. § 973.09(3)(c)(1). At the time Baxter sought the extension, Plaintiff had
not made any payments towards his court costs or fees. Baxter tried to get
Plaintiff to stipulate to an extension of his supervision period, but he
refused. Baxter then requested a court hearing on the matter, and the court
ruled that Plaintiff’s supervision would not be extended. Plaintiff thus
suffered no injury at all resulting from Baxter’s conduct.2
5.

CONCLUSION

On the undisputed facts presented, Plaintiff has suffered no
violations of his constitutional rights. Defendants’ motion must, therefore,
be granted, and this action dismissed with prejudice.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #24) be and the same is hereby GRANTED; 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 20th day of November, 2017.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

Even if Baxter had obtained the supervision extension she desired, until
October 2018, it would not have actually prolonged Plaintiff’s supervision by the
DOC. He is currently on supervision pursuant to yet another criminal conviction,
and that period will not expire until September 2020.
2

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