Brown v. Arndt et al

Filing 31

ORDER signed by Judge Lynn Adelman on 3/13/20 that the defendants' motion for summary judgment 21 is GRANTED. Defendants' motion to strike the plaintiff's motion for summary judgment 26 is DENIED as MOOT. Plaintiff's motion to recruit counsel 15 is DENIED. Plaintiff's motion for an extension of time 17 is DENIED as MOOT. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JIMMIE LEE BROWN,
Plaintiff,
v.

Case No. 18-C-0037

JENNIFER ARNDT and
RICHARD GINKOWSKI,
Defendants.
______________________________________________________________________
DECISION AND ORDER
Jimmie Lee Brown, proceeding pro se, brought this action under 42 U.S.C.
§ 1983 alleging that he was wrongly arrested and detained for—and eventually
convicted of—failing to register as a sex offender in Wisconsin. Before me now are the
parties’ cross motions for summary judgment and several related motions
I. BACKGROUND
In 1987, Brown was convicted of aggravated criminal sexual abuse in Lake
County, Illinois. He was released on parole on January 6, 1995. In 1996, the Illinois Sex
Offender Registration Act took effect. Brown concedes that the Act applied to him and
required him to register as a sex offender in Illinois for a period of ten years following his
release on parole, that is, until January 6, 2005. Brown registered in Illinois in 1996 and
1998. After 1998, he stopped registering in Illinois. Brown contends that this is because
he left Illinois in May 1998. See Pl. Resp. to Def. Prop. Findings of Fact (“PFOF”) ¶ 7,
ECF No. 27.
In 1999, the Illinois Sex Offender Registration Act was amended to provide that if
a person subject to the Act fails to register as required, the person’s registration period

is extended until 10 years from the date that the person cures the violation. See Aff. of
Tracie Newton ¶ 9, ECF No. 1010; see also 730 Ill. Comp. Stat. § 150/7. In 1999, the
Illinois State Police (the agency responsible for maintaining the registry) determined that
Brown fell out of compliance with the Act. See Letter from Tracie Newton, August 14,
2015, at 1; ECF No. 19-1 at p. 3 of 6. 1 According to that agency, “[a] non-compliant
registrant in Illinois has no ending registration date until the person becomes compliant.”
Id.
At around this time, Brown came to Wisconsin and committed crimes here. In
2010, while he was released on supervision for his Wisconsin crimes, Brown’s
supervising agent told him that because he was required to register as a sex offender in
Illinois, he was also required to register in Wisconsin. The agent’s insistence that Brown
register was based on Wis. Stat. § 301.45(1g)(f), which provides that a person is
required to register in Wisconsin if the person “is registered as a sex offender in another
state.” Brown protested, telling his agent that his requirement to register in Illinois ended
in 2005.
In April 2010, defendant Jennifer Arndt, a Registry Specialist with the Wisconsin
Department of Corrections, concluded that Brown was required to register in Illinois until
April 15, 2020. Brown disputes that the Illinois registry reflected that he had a duty to
register until that date. According to him, the registry may have shown that he had a
duty to register at the time Arndt checked it in 2010, but it did not also show that the

1

Newton’s letter has not been properly authenticated and is hearsay. However, I do not
understand either party to be disputing the facts recounted in her letter. Accordingly, I
will consider the letter’s contents in the course of deciding the present motions.
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duty would last until 2020. Arndt does not remember exactly how she determined that
Brown’s duty to register lasted until 2020, but she states that her practice was to either
call the Illinois State Police or obtain information from its website. See Decl. of Jennifer
Arndt ¶¶ 6, 15–16. Brown contends that Arndt simply fabricated the April 15, 2020 date.
However, it is obvious that Arndt picked the date by adding 10 years to the date that she
checked the Illinois registry and learned that Brown was required to register but was
non-compliant. Arndt’s records show that she checked the registry on April 14, 2010.
See Ex. 1000 at 4, ECF No. 24-1 at p. 4 of 4. Because Illinois listed Brown as noncompliant as of that date, and because under Illinois law Brown’s duty to register would
have lasted until 10 years from the date that he cured his non-compliance, Arndt likely
concluded that Brown’s duty to register would last at least 10 years from the date that
she checked the registry. Technically, as of April 14, 2010, Brown had no ending
registration date in Illinois because he was out of compliance. But if Arndt needed to
enter an ending date into her records, April 15, 2020 would work because Brown’s duty
to register could not possibly have ended sooner than that.
Although Brown initially failed to comply with his supervising agent’s order that he
register as a sex offender in Wisconsin, he registered on January 12, 2011. Def. PFOF
¶ 16. In November 2011, Brown left his registered address and absconded from
supervision. Id. ¶ 17. Wisconsin requires registered sex offenders to update their
address within 10 days of moving. Brown did not update his address within 10 days and
therefore was no longer properly registered in Wisconsin.
On June 8, 2012, Brown was arrested for absconding from supervision and
detained at the Kenosha County Jail. On July 3, 2012, Brown’s supervision was
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revoked, and he remained in the Kenosha County Jail. During the following few months,
the Department of Corrections repeatedly notified Brown that he was not in compliance
with the registry and demanded that he update his information. Brown admits that he
refused to comply. See Def. PFOF ¶ 24.
On October 1, 2012, Arndt asked the Kenosha County District Attorney’s Office
to bring criminal charges against Brown and arrest him for failing to comply with the
registration requirements. As part of her request, Arndt sent the D.A.’s office a
document entitled “Sex Offender Registry Non-Compliance Report.” See Ex. 1001, ECF
No. 24-2. The report stated that Brown was required to register in Wisconsin based on
his Illinois registration. It listed Brown’s “registration start date” as January 6, 1995, and
his “registration end date” as April 15, 2020. Id. The report said that Brown had moved
from his registered address and failed to update his address with the registry within 10
days. The report also explained that Brown had violated the Wisconsin registration law
by failing to annually update his address and by failing to respond to communications
from the Department of Corrections about his registration.
On October 4, 2012, Brown was released from the Kenosha County Jail.
Because his release resulted in a change of address, he was required to update his
address in the Wisconsin registry. Again, Brown failed to do so.
In December 2012, an assistant district attorney for Kenosha County, defendant
Richard Ginkowski, signed a criminal complaint alleging that Brown had committed a
crime by failing to update his Wisconsin registration. In the probable-cause section of
the complaint, Ginkowski stated as follows:

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On October 4, 2012, the Kenosha County District Attorney’s Office
received documentation from Jennifer Arndt, Registry Specialist for the
Wisconsin Department of Corrections, showing that Jimmie L. Brown, the
defendant, had been non-compliant with the Sex Offender Registry
Program. The defendant was convicted of Aggravated Criminal Sexual
Abuse/Bodily Harm on January 16, 1987, in Lake County, Illinois . . . and
was required to register as a sex offender until April 15, 2020.
Ex. 1006 at 1, ECF No. 25-4. The complaint then described Brown’s failures to update
his address over the prior months.
Based on the probable cause alleged in the criminal complaint, a warrant was
issued for Brown’s arrest. See Ex. 1005, ECF No. 25-3. He was arrested on January 9,
2013. Brown was unable to post bond and thus remained in custody for the duration of
pretrial proceedings.
During the criminal case, Brown claimed that he was not required to register in
Wisconsin because his requirement to register in Illinois ended in January 2005. Trying
to prove this, Brown and his defense attorney contacted the Illinois State Police. The
State Police did not provide a prompt response. By July 2013, the State Police still had
not responded, and Brown was still being held in jail awaiting trial on the failure-toupdate charge. Around this time, the state offered Brown a plea agreement under which
he would plead guilty in exchange for a sentence of time served (172 days). Tired of the
delays, Brown accepted the plea and was sentenced to time served.
Unbeknownst to Brown, the Illinois State Police had removed him from the Illinois
registry on March 13, 2013 without telling anyone. More than two years later, on August
14, 2015, the Illinois State Police sent a letter to the investigator employed by Brown’s
defense counsel explaining what had happened. See ECF No. 19-1. According to the
letter, when defense counsel inquired into Brown’s duty to register in Illinois, the State
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Police dove deeper into his file to determine whether he was still required to register. Id.
at p. 4 of 6. The agency decided that Brown was never properly notified of his duty to
register after 1998 and that therefore his duty to register in Illinois should have expired
in January 2005, 10 years after he was released from prison. Id. Thus, on March 13,
2013, the State Police officially removed him from the Illinois Sex Offender Registry. Id.
The State Police said that it did not notify Brown of its action because it did not have his
current mailing address. Id.
In its letter, the State Police responded to specific questions asked by the
investigator for Brown’s counsel in her original letter. The investigator had asked the
State Police to verify whether Brown “is required to register as a sex offender in Illinois
because of his Kenosha County case until April 15, 2020.” ECF No. 18-3 at p. 23 of 37.
In response, the State Police wrote that “[t]here are no records in Illinois indicating Mr.
Brown has a duty to register as a sex offender in Illinois until April 15, 2020.” Id. The
State Police then explained that if Brown were convicted of a felony offense in Kenosha,
his duty to register in Illinois would be reactivated and last for the rest of his life.
The investigator had also asked whether Brown was required to register in Illinois
in October 2012, when his alleged failure to register in Wisconsin occurred. The State
Police said that “[w]hen Mr. Brown was charged with failure to register in Wisconsin in
October 2012, at that time he was considered a non-compliant sex offender in Illinois.”
ECF No. 19-1 at p. 4 of 6. The State Police added that although he was removed from
the registry in March 2013, as of October 2012, “technically he had a duty to register in
Illinois.” Id. As of that date, Brown also “had no known ending registration date since he
was non-compliant.” Id.
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In October 2015, Brown, through his defense counsel, filed a motion for
postconviction relief seeking an order vacating his sentence, withdrawing his guilty plea,
and dismissing the charge against him. The court granted the motion in February 2016.
Currently, Brown is in prison in Wisconsin based on convictions that were
obtained after he was released from jail in 2013. In January 2018, while he was
incarcerated, he commenced the present action against Arndt, Ginkowski, and others
(whom I have since dismissed) under § 1983. In screening the complaint under 28
U.S.C. § 1915A, I construed it as stating a claim for wrongful arrest and pretrial
detention under the Fourth Amendment. See Camm v. Faith, 937 F.3d 1096, 1105 (7th
Cir. 2019). The parties have filed cross motions for summary judgment on this claim. In
addition, Brown has filed a motion to appoint counsel and a motion to extend the
deadline for completing discovery, and the defendants have filed a motion to strike
Brown’s motion for summary judgment. I consider these motions below.
II. DISCUSSION
A.

Cross Motions for Summary Judgment
Summary judgment is required where “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). When considering a motion for summary judgment, I view the evidence in the
light most favorable to the non-moving party and must grant the motion if no reasonable
juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255
(1986).
Brown’s claim is that Arndt and Ginkowski made false statements in the criminal
complaint and warrant application in order to establish probable cause for his arrest,
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detention, and criminal prosecution. More specifically, he contends that they “fabricated”
their claim that he was required to register as a sex offender in Illinois until April 15,
2020. See, e.g., Pl. Reply to Def. Mot. for Summ. J. at 1, ECF No. 28. Thus, I construe
his claim as arising under the Fourth Amendment and Franks v. Delaware, 438 U.S.
154 (1978). To prevail, Brown must prove that the defendants “intentionally or recklessly
include[d] false statements in a warrant application and [that] those false statements
were material to a finding of probable cause.” Rainsberger v. Benner, 913 F.3d 640, 647
(7th Cir. 2019). 2 Here, there is no dispute that the allegedly false statement was
material to a finding of probable cause, and thus the sole issue is whether the
defendants made an intentionally or recklessly false statement in the criminal complaint.
Although Brown has sued both Arndt and Ginkowski, Arndt is the only defendant
who made the statement at issue. In the criminal complaint, Ginkowski identified Arndt
as the source of the information giving rise to probable cause and did not claim that he
independently investigated whether Brown was required to register in Illinois. Moreover,
no evidence in the record suggests that Ginkowski had reason to believe that the
information supplied by Arndt was false or otherwise untrustworthy. And under § 1983,
Ginkowski cannot be deemed vicariously liable for any constitutional violation committed
by Arndt. See, e.g., Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992). Thus,
Ginkowski is entitled to summary judgment.
2

Because Brown was convicted, he also presses a due-process claim for wrongful
conviction based on fabricated evidence. See Lewis v. City of Chicago, 914 F.3d 472,
479 (7th Cir. 2019) (citing authorities stating that convictions based on fabricated
evidence violate the defendant’s right to due process). However, because the dueprocess claim involves the same basic issue as the Fourth Amendment claim—whether
the defendants fabricated their representation that the plaintiff was required to register
in Illinois until April 2020—I will not separately discuss the due-process claim.
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As for Arndt, she claims that she did not fabricate her statement that Brown had
a duty to register in Illinois until April 15, 2020. Instead, she explains, her typical practice
for obtaining registration information from Illinois was to either call the Illinois State
Police Sex Offender Registration Unit or visit the Illinois Sex Offender Registration
website. Arndt Decl. ¶ 6. Understandably, Arndt does not remember which of these
methods she used to obtain information about Brown in 2010 and/or 2012. But there is
no evidence in the record from which a reasonable jury could conclude that Arndt did
not consult one of these sources before concluding that Brown was required to register
in Illinois. Arndt did not know Brown and had no apparent motive to falsify evidence
about him. Her contemporaneous records reflect that she reviewed Brown’s registration
requirements on April 14, 2010 and determined that he was required to register as of
that date. See Ex. 1000 at 4. She then concluded that Brown would have a duty to
register in Illinois for 10 more years. Her conclusion was accurate given that, at the time
she would have obtained information from the Illinois State Police, the agency would
have told her that Brown was required to register, was non-compliant, and would be
required to register for 10 years after he became compliant.
Brown points out that, in response to his counsel’s investigator’s inquiry, the
Illinois State Police wrote that “[t]here are no records in Illinois indicating Mr. Brown has
a duty to register as a sex offender in Illinois until April 15, 2020.” ECF No. 19-1 at p. 4
of 6. I take Brown to be suggesting that this means Arndt must have fabricated the April
15, 2020 date. But, as I have explained, at the time Arndt would have inquired about
Brown’s registration status in April 2010, Illinois records would have shown that Brown
was required to register and was non-compliant. Under Illinois law, that meant Brown
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“had no known ending registration date.” ECF No. 19-1 at p. 4 of 6. Once Brown
brought himself back into compliance, Illinois would have required him to continue
registering for 10 years. See 730 Ill. Comp. Stat. 150/7. So, if Arndt made an inquiry on
April 14, 2010, she would have learned that Brown would have been required to register
in Illinois until at least April 15, 2020. That is, Arndt would have learned that Brown’s
duty to register in Illinois would have ended on April 15, 2020 if he cured his failure to
register on April 15, 2010, which was the soonest he could have done so. Thus, Arndt
could reasonably assume that Brown would have a duty to register in Illinois until at
least April 15, 2020, even though, as far as Illinois was concerned, Brown’s duty to
register had no end date. Presumably, as 2020 approached, Arndt would have made a
new inquiry with Illinois to determine whether Brown had cured his noncompliance and
then updated her records accordingly. For these reasons, the lack of a specific record in
Illinois stating that Brown had a duty to register until April 15, 2020 is not suspicious. It
certainly does not suggest that Arndt never obtained information from Illinois and
instead fabricated her claim that Brown was required to register there until April 15,
2020.
Brown also contends that, although Arndt may have checked with Illinois in 2010,
she failed to do so again in 2012 before she sought the arrest warrant. Arndt does not
indicate whether she re-checked the registry in October 2012 before seeking the arrest
warrant. Construing the evidence in the light most favorable to Brown, I assume that
she did not. However, it would not follow that Arndt made intentionally or recklessly
false statements in the warrant application. As explained, when Arndt checked the
registry in 2010, she learned that the soonest Brown’s duty to register in Illinois could
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have ended was April 15, 2020. Thus, Arndt did not need to re-check the registry in
2012 to have probable cause to believe that Brown’s duty to register lasted until April
15, 2020. And of course, had Arndt re-checked the registry in October 2012, she would
have seen that it still listed Brown as required to comply, for the Illinois State Police did
not remove him from the registry until March 2013.
Brown also contends that Arndt had a duty to determine whether the Illinois State
Police was correctly listing him as still required to register. However, Brown’s rights
could have been violated only if Arndt intentionally or recklessly made a false statement
in the warrant application. A person does not intentionally or recklessly make a false
statement by failing to double-check information provided to him or her by a reliable
source. Here, the Illinois State Police is a reliable source of information about who is
required to register in Illinois, for it is the very agency that determines who is required to
register in Illinois. Thus, Arndt could truthfully state in the warrant application that Brown
“was required to register as a sex offender [in Illinois] until April 15, 2020” even though
she did not verify that the Illinois State Police had correctly applied Illinois law. 3
For these reasons, Arndt and Ginkowski are entitled to summary judgment, and
the plaintiff is not entitled to summary judgment. The defendants’ motion will be granted,

3

Indeed, it is at least arguable that Brown violated Wisconsin law by failing to register
here even though the Illinois State Police had erred in thinking that he was required to
register in Illinois. Wisconsin law states that a person is required to register in Wisconsin
if the person “is registered as a sex offender in another state.” Wis. Stat.
§ 301.45(1g)(f). Here, the agency responsible for the registry in Illinois registered Brown
as a sex offender in Illinois. Under Wisconsin law, this may have been sufficient to
trigger Brown’s duty to register here, even if the State Police had mistakenly required
Brown to register.
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and the plaintiff’s motion will be denied. The denial of the plaintiff’s motion renders the
defendants’ motion to strike that motion moot.
B.

Plaintiff’s Motion to Recruit Counsel and for an Extension of Time
Before he filed his motion for summary judgment, the plaintiff filed a motion to

recruit counsel. “When confronted with a request under [28 U.S.C.] § 1915(e)(1) for pro
bono counsel, the district court is to make the following inquiries: (1) has the indigent
plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from
doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).
Here, I will assume that the plaintiff made a reasonable attempt to obtain
counsel. However, I believe that the plaintiff was competent to litigate the case himself.
The facts and legal issues were not complex, and the plaintiff ably argued his case in
his summary-judgment briefs. The plaintiff’s pro-se and incarcerated status might have
prevented him from obtaining depositions of out-of-state witnesses (such as
representatives of the Illinois State Police) or obtaining admissible documentary
evidence from such witnesses. However, I resolved this issue in the plaintiff’s favor by
considering the letters he filed from the Illinois State Police even though he did not
submit them in admissible form and even though they were hearsay. Accordingly, the
plaintiff’s motion to recruit counsel will be denied.
On June 27, 2019, nearly two months before the summary-judgment motions
were filed, the plaintiff filed a motion to extend the discovery deadline. In the motion, he
stated that his prison was on lockdown and that this made it difficult for him to obtain
copies and to have certain papers notarized. It appears that this motion may be moot,
12

for the plaintiff submitted his documentary evidence with his summary-judgment
materials, and I did not penalize him for submitting the materials in an inadmissible
form. In any event, I do not see any way in which additional discovery might alter the
outcome of this case, and so I will deny the motion for an extension as moot.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the defendants’ motion for
summary judgment (ECF No. 21) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for summary judgment
(ECF No. 20) is DENIED.
IT IS FURTHER ORDERED that the defendants’ motion to strike the plaintiff’s
motion for summary judgment (ECF No. 26) is DENIED as MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to recruit counsel (ECF No.
15) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for an extension of time
(ECF No. 17) is DENIED as MOOT.
FINALLY, IS IT ORDERED that the Clerk of Court enter final judgment.
This order and the judgment to follow are final. A dissatisfied party may appeal
this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court
a notice of appeal within 30 days of the entry of judgment. See Federal Rule of
Appellate Procedure 3, 4. This court may extend this deadline if a party timely requests
an extension and shows good cause or excusable neglect for not being able to meet the
30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).

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Under certain circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment
under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot
extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The court cannot extend this
deadline. See Federal Rule of Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 13th day of March, 2020.

s/Lynn Adelman______
LYNN ADELMAN
United States District Judge

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