Schroeder v. Malone et al

Filing 26

ORDER signed by Judge Lynn Adelman on 5/1/18 denying 22 Motion for Reconsideration. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
RONALD SCHROEDER,
Plaintiff,
v.

Case No. 17-CV-1676

KIMBERLY MALONE and JASON POPP,
Defendants.
______________________________________________________________________
ORDER
On March 28, 2018, before this case was assigned to me, U.S. Magistrate Judge
William E. Duffin screened plaintiff’s amended complaint. Plaintiff moves for
reconsideration of Magistrate Judge Duffin’s screening order.
First, plaintiff argues that Magistrate Judge Duffin erred in dismissing his Fourth
Amendment claim based on a search of his home while plaintiff was in jail but before his
supervised release was revoked. Magistrate Judge Duffin found that plaintiff had agreed
to the Wisconsin Department of Corrections’ standard rules of supervision requiring him
to make his residence available for searches, which was sufficient to render the search
reasonable. Plaintiff argues that he never agreed to the DOC’s rules and provides an
unsigned copy of the rules to show that. But the rules clearly state that they apply
whether an offender agrees to them or not and that an offender’s signature merely
indicates that he received a copy. Therefore, I see no remediable error in Magistrate
Judge Duffin’s order with respect to this claim.
Second, plaintiff argues that Magistrate Judge Duffin erred by not ruling on his
asserted claim that a DVD of an animated film, a laptop/tablet, and $500 cash were
seized in violation of the Fourth Amendment during the above-discussed search. Yet,

the DOC’s rules required that plaintiff make certain property available for searches,
including his computer, his cell phone, and any other electronic devices under his
control. Moreover, the search concerned plaintiff’s compliance with these rules, which
substantially restricted his internet access and his ability to communicate or otherwise
have contact with anyone under the age of 18, among other things. Those rules also
explicitly state that plaintiff could not possess material marketed to children, such as an
animated film on DVD. Given plaintiff’s waiver of Fourth Amendment rights and the rules
of supervision in place, plaintiff fails to allege that the items at issue were not properly
seized as “fruits or instrumentalities of the crime or evidence reasonably connected to
the alleged behavior being investigated.” United States v. Jones, 518 F.2d 384, 389 (7th
Cir. 1975). Thus, Magistrate Judge Duffin’s failure to explicitly state whether plaintiff’s
asserted Fourth Amendment seizure claim was cognizable was harmless.
Third, plaintiff argues that Magistrate Judge Duffin erred by dismissing his claims
that defendants conspired to have his supervision revoked by saying that plaintiff had
lied about his child support payments. As Magistrate Judge Duffin noted, however,
“lying to an agent” was one of several “secondary violations” provided as justification for
revoking plaintiff’s supervision, and he does not dispute his “primary violation” for failure
to comply with the terms of the Sex Offender Registration Program. In other words,
plaintiff was not put in jail for allegedly lying about child support payments but for other,
more significant, violations of the rules of supervision, so his conspiracy claim fails for
lack of cognizable harm. Accordingly, I see no remediable error in Magistrate Judge
Duffin’s order with respect to these conspiracy claims.

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Finally, plaintiff asks that I screen his asserted claim against defendant Malone
based on Malone’s alleged false testimony at plaintiff’s preliminary revocation hearing.
In general, witnesses enjoy absolute immunity from civil liability under § 1983 for false
testimony, in part because “other sanctions—chiefly prosecution for perjury—provide[] a
sufficient deterrent.” See Rehberg v. Paulk, 566 U.S. 356, 367 (2012); see also Wis.
Stat. § 946.31 (classifying perjury as a Class H felony). Therefore, Magistrate Judge
Duffin’s failure to explicitly state whether plaintiff’s asserted Fourteenth Amendment
false-testimony claim was cognizable was harmless.
For the foregoing reasons, IT IS ORDERED that plaintiff’s motion for
reconsideration (Docket No. 22) is DENIED.
Dated in Milwaukee, Wisconsin, this 1st day of May, 2018.

s/Lynn Adelman____________
LYNN ADELMAN
United States District Judge

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