Tyler, Matthew v. Wick, Stephanie et al

Filing 89

ORDER denying plaintiff's 32 motion for preliminary injunctive relief regarding his legal materials. Defendants' motion for summary judgment, Dkt. 41 , is GRANTED in all respects except regarding plaintiff's federal and state claim s against defendant Agent Lutz in her individual capacity for providing false information at plaintiff's revocation hearing. All defendants other than Agent Lutz are DISMISSED from the case. The current schedule is STRICKEN and a new schedule will be set shortly. Signed by District Judge James D. Peterson on 3/31/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MATTHEW TYLER,

v.

Plaintiff,

OPINION & ORDER
14-cv-68-jdp 1

STEPHANIE WICK, SANDRA HANSEN,
PETER MARIK, K. MARKS, DAVID H. SCHWARZ,
MARGARET BECKWITH, DEBORAH MCCULLOCH,
ROBERT KNEEPKENS, JEFFREY P. HRUDKA,
MARK SPEES, ALBERT LAVENDER, ERIC SWIATLY,
MIKE LUTZ, VAL LITTY, DONNA HEDRICH,
JAMIE OLSON, STEVE SCHNEIDER,
and WILLIAM PARKER,
Defendants.

Plaintiff Matthew Tyler, a person civilly committed to the Sand Ridge Secure Treatment
Center under Wis. Stat. Chapter 980, brings this lawsuit alleging that various state officials
violated his rights with regard to his probation revocation and several other issues during his
placement at state facilities. The case was removed to this court by defendants. Plaintiff brings a
wide variety of claims, including claims under the United States Constitution, the Americans
with Disabilities Act, the Health Insurance Portability and Accountability Act, and several
different state statutes and administrative regulations.
Currently before the court is a motion for preliminary injunctive relief by plaintiff
seeking access to his legal materials, which I will deny because plaintiff fails to show that
defendants are blocking him from litigating this case. Also before the court is defendants’
“motion for summary judgment restricted to threshold issues.” 2 Because discovery was stayed

1

2

This case was reassigned to me pursuant to a May 19, 2014 administrative order. Dkt. 24.

Early in the proceeding, defendants filed a motion for judgment on the pleadings but
subsequently withdrew that motion in favor of the current motion for summary judgment,

for litigation of this motion, I will only consider arguments raised by defendants that do not
require resolution of disputed issues of fact that might require discovery by plaintiff. After
considering the submissions by the parties, I conclude that almost all of plaintiff’s complaint
must be dismissed, either for plaintiff’s failure to state claims upon which relief may be granted,
or because he is barred from bringing certain claims. However, at this point, I will not dismiss
plaintiff’s federal and state claims against defendant Agent Lutz in her individual capacity for
making false statements at plaintiff’s revocation hearing.

LEGAL MATERIALS
As the parties were briefing defendants’ original motion for judgment on the pleadings,
plaintiff argued that his “legal material and other important documents necessary to prove his
assertions are part of the 12 boxes of property that are in the possession of defendants.”
Dkt. 32. Magistrate Judge Crocker gave defendants a chance to respond to plaintiff’s allegations.
Dkt. 65. Defendants responded that the 12 boxes of property were forwarded to a contact,
Ronald Tyler, chosen by plaintiff, and that plaintiff had at some later point received some of
those materials back from his contact. Plaintiff’s reply is somewhat difficult to understand; it
seems that plaintiff has not had access to all 12 boxes of material, but he does not appear to
dispute that he is in personal possession of at least some of the material. Plaintiff’s submission
of over 100 pages of exhibits also suggests that he has access to materials to litigate this case.
Dkt. 74.

stating that given plaintiff’s responses to the motion for judgment on the pleadings,
“documentation beyond the pleadings may well be needed by the court to resolve all of
[plaintiff’s] claims.” Dkt. 29 at 5.

2

In any event, to the extent that I understand plaintiff to be asking for preliminary
injunctive relief regarding the provision of these materials, I would only consider such drastic
action if I thought that defendants were actively blocking plaintiff from litigating this action.
This is clearly not the case given the large amount of materials that plaintiff has been able to
submit. Further, from plaintiff’s briefing, he is not able to raise any compelling reason to think
that he has been hampered from presenting evidence or argument. As stated in more detail
below, the real problem with plaintiff’s case is that he raises a series of claims that are either
frivolous or barred. Because plaintiff fails to show that the court should intervene in his
possession of legal materials, I will deny his motion for preliminary injunctive relief.

SUMMARY JUDGMENT
A.

Undisputed Facts
The following facts are undisputed unless noted otherwise.
Plaintiff Matthew Tyler is civilly committed under Wis. Stat. Chapter 980, the

Wisconsin sexually violent persons law. He is currently housed at the Sand Ridge Secure
Treatment Center, a facility in Mauston, Wisconsin, that provides specialized treatment services
for persons committed under Chapter 980.
Until December 10, 2012, defendant Margaret Beckwith was an administrative law judge
with the Division of Hearings and Appeals (DHA) and, until June 11, 2013, defendant David
Schwartz was the administrator of DHA. Until July 13, 2012, Defendant Stephanie Wick was a
probation and parole agent with the Division of Community Corrections (DCC), part of the
Wisconsin Department of Corrections (DOC). Wick’s surname was Lutz during the events
relevant to this case, so in keeping with the parties’ submissions, I will refer to her as Agent
Lutz. Defendant Sandra Hansen is a corrections field supervisor who supervises probation and

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parole agents. Hansen’s surname during the events relevant to the events of this case was
Bucholtz, so I will refer to her by that name. Defendant Peter Marik is also a corrections field
supervisor. Defendant Kimberly Marks was an offender classification specialist at the Milwaukee
Secure Detention Facility.
Several of the defendants either work at the Sand Ridge Secure Treatment Center or
used to work there. Defendant Deborah McCulloch is the director, defendant Robert Kneepkens
was deputy director from April 18, 2010 to May 31, 2014, defendants Jeffrey Hrudka and Mark
Spees are institution unit managers, defendant Albert Lavender, Eric Swiatly, and Val Litty are
psychiatric case supervisors, defendant Mike Lutz is an administrative psychiatric case
supervisor, defendant Donna Hedrich is a social worker, defendant Jamie Olson is a registrar,
defendant Steve Schneider is a security director, and defendant William Parker was a
supervising officer until July 14, 2012.
On October 17, 2001, plaintiff was sentenced on a conviction for second-degree sexual
assault of a child to seven years of confinement and 13 years of extended supervision. A
condition of that sentence was that plaintiff “[c]ontinue counseling and other assessments to be
determined.” On October 24, 2008, with his mandatory release date approaching, Plaintiff
signed “Rules of Community Supervision” that imposed additional conditions governing his
term of extended supervision. Those rules anticipated his being released from a DOC institution
into extended supervision and then transferred to the Wisconsin Resource Center (WRC),
operated by the Department of Health Services, pending a Chapter 980 hearing. In late October
2008, plaintiff was transferred to WRC. On July 7, 2010, plaintiff was found to be a sexually
violent person and was civilly committed under Chapter 980. On March 31, 2011, plaintiff was
transferred from WRC to Sand Ridge.

4

Before this case commenced, plaintiff challenged by certiorari proceeding conclusions by
Beckwith as an ALJ and then by Schwarz that, after being transferred to Sand Ridge, he had
dual status as a person both committed under Chapter 980 and on extended supervision and
was subject to the conditions of extended supervision while at Sand Ridge.
On April 30, 2011, a Sand Ridge patient confidentially reported to staff that, on April
24, 2011, he witnessed plaintiff and another patient engaging in anal intercourse. Plaintiff was
placed on a temporary 72-hour reassignment pending an investigation. Sexual conduct by
patients, whether consensual or non-consensual, was prohibited in 2011 at Sand Ridge by
written Policy and Procedure # SR 477.
On May 2, 2011, Lavender, at Spees’s direction, began investigating allegations that
plaintiff had engaged in anal sex with “BJ,” another Sand Ridge patient. BJ admitted that
plaintiff and he engaged in unauthorized sexual contact. Lavender, through his investigation,
determined that plaintiff engaged in unauthorized sexual conduct and lied or provided
inaccurate information when questioned.
On May 5, 2011, plaintiff withdrew from required treatment assessments at Sand Ridge,
stating, “Based on my experiences thus far at SRSTC, it is not in my best interest to continue.”
On May 6, 2011, Spees issued a behavior disposition record (BDR) for plaintiff for
sexual conduct and lying or providing inaccurate information. On May 9, 2011, plaintiff was
reassigned to a secure treatment wing and placed on a “step” program. Plaintiff moved through
the stages of this program under the review of Hrudka and Schneider.
Plaintiff appealed the BDR to a hearing committee consisting of Swiatly, Mike Lutz, and
Litty. The committee upheld the BDR because, after reviewing the investigative documents and
hearing documents, it concluded it was more likely than not that the alleged offense occurred
and concluded plaintiff’s reassignment to a secure treatment wing and to the step program was

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an appropriate disposition given the offense. Plaintiff appealed that decision, which McCulloch
upheld on May 17, 2011.
The only involvement Olson had with plaintiff was giving him the “Admissions Notices
and Consent” form that he filed, and later responding to staff requests for documents regarding
the BDR.
Agent Lutz was plaintiff’s probation agent. Based on a discussion at a May 10, 2011
“Clinical Management Team” Meeting, and at Schneider’s recommendation, Hrudka e-mailed
Agent Lutz on May 16, 2011, stating that plaintiff received a BDR report for sexual conduct
and lying or providing inaccurate information. Agent Lutz was the only person outside of Sand
Ridge to whom Hrudka provided that information.
On May 17, 2011, Agent Lutz consulted with Bucholtz, who was her supervisor, and
other agents. Lutz and the others decided to place a probation hold on plaintiff pending an
investigation. On May 24, 2011, plaintiff declined to give Agent Lutz a statement. On June 2,
2011, plaintiff was transported from Sand Ridge to the Milwaukee Secure Detention Facility
based on his probation hold.
On June 7, 2011, Bucholtz and Agent Lutz conducted a “Conference Case review.” On
June 9, 2011, Agent Lutz completed a report that listed two alleged rule violations: that plaintiff
had (1) engaged in unapproved sexual activity in violation of the 2001 judgment of conviction
and Sand Ridge admissions notices and consents; and (2) refused to cooperate with treatment
opportunities offered to him in violation of the 2001 judgment of conviction.
According to plaintiff, in the course of a May 31, 2011 videoconference with another
patient facing revocation, “Lee R.,” the patient told Agent Lutz that he had two witnesses, one
being plaintiff, who could testify about a separate incident. Agent Lutz responded by cautioning
Lee R. against relying on plaintiff as a witness because plaintiff was “in his own trouble” and

6

facing revocation for “sexual misconduct misbehavior” at Sand Ridge and because plaintiff “was
not credible.”
On July 6, 2011, Agent Lutz prepared and signed a “Revocation Summary” document
stating that placing plaintiff in a halfway house was “unavailable for civilly committed
offenders” and that “Institutional Programming for community-based SOT, CGIP” was
“currently unavailable” for civilly committed offenders who were required, under Chapter 980,
to be housed “at a treatment facility.” Agent Lutz evaluated alternatives to revocation as part of
standard revocation procedures and then testified about alternatives to revocation as part of
standard procedures during the resulting hearing. Agent Lutz had also stated in the Revocation
Summary that an “RCI SOT [Alternative to Revocation] Program” was inappropriate because
plaintiff had “completed the Beacon Program SO-4: Intensive Residential” that was already
“more intensive” than the “RCI SOT ATR Program.”
Accordingly to plaintiff, during the September 21, 2011 hearing session, Agent Lutz
testified that plaintiff had completed the Beacon program, that this was false, that she knew it
was false when she testified, and that she refused to correct that statement either when crossexamined or when challenged in an appeal to the administrator. Defendants deny that Agent
Lutz intentionally made misstatements. Plaintiff also alleges that, through June 23, 2012,
Bucholtz and Agent Lutz intentionally withheld information that plaintiff had not completed
the Beacon Program. Defendants dispute this.
In a September 28, 2011 decision, Beckwith determined that the DOC had not
sustained its burden of proving the first alleged rule violation regarding unauthorized sexual
conduct, but determined that the DOC had sustained its burden of proving the second alleged
rule violation, that he had refused to cooperate with treatment opportunities offered to him.
While acknowledging plaintiff’s arguments that he could refuse treatment as a person

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committed under Chapter 980, Beckwith concluded that plaintiff was concurrently on extended
supervision and had violated the 2001 judgment of conviction by having “specifically refused to
participate in an assessment” of treatment options. Beckwith determined that alternatives to
revocation were considered and that no viable alternatives existed and then revoked plaintiff’s
extended supervision. Plaintiff appealed to Schwarz as DHA administrator and, on October 26,
2011, Schwarz sustained Beckwith’s decision, noting that plaintiff had refused “counseling and
assessment determined to be necessary as part of his treatment as a sexually violent person.”
Plaintiff’s extended supervision was revoked and he was ordered to be returned to the
Dodge Correctional Institution and re-incarcerated there for a period of nine months. However,
plaintiff was transferred back to Sand Ridge about four months later, on February 28, 2012.
Plaintiff challenged the administrator’s decision in the Wisconsin courts through
certiorari proceedings. The decision was affirmed by a circuit court decision on September 12,
2012, and by a Wisconsin Court of Appeals decision issued on August 22, 2013. Plaintiff
sought review by the Wisconsin Supreme Court, but was denied.
Plaintiff alleges that he informed the ALJ at the July 28, 2011 and the September 21,
2011 revocation hearings that “legal material” was being “withheld through the actions” of
Agent Lutz, McCulloch, Kneepkens, and Parker.” Plaintiff was represented by an attorney
throughout that hearing.
On August 1, 2011, Kneepkens responded to a letter from plaintiff in which plaintiff
“expressed concern about not receiving [his] money or property.” Kneepkens suggested to
plaintiff that he provide the address of a family member so that, in the event he was revoked,
Sand Ridge could send his property to that family member.
On November 29, 2011, Parker sent plaintiff a certified letter at MSDF, where he
remained housed, giving him until December 12, 2011 to provide an address. Plaintiff provided

8

Sand Ridge an address to send his property, to “Mr. Ronald Tyler in Texas” and, on December
21, 2011, the 12 boxes of property involved were mailed by Sand Ridge to Ronald Tyler.
Plaintiff was transferred back to Sand Ridge on February 28, 2012. In March, plaintiff
and Parker corresponded about shipping at least some of plaintiff’s property back to Sand
Ridge. The parties disagree about whether plaintiff received all of his legal materials.
Marks,

working as an offender classification

specialist,

prepared an “Inmate

Classification Report” dated December 30, 2011, regarding the proper level of security for
plaintiff’s placement. Plaintiff believes that Marks falsified some of the information on the
report. Marks disputes this.
B.

Analysis
To succeed on a motion for summary judgment, the moving party must show that there

is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of
material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., 414 F.3d 686, 692 (7th
Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be
drawn in the nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th
Cir. 1999).
1.

Individual capacity claims

I understand plaintiff to be bringing the following claims:
•

Defendants Spees, Lavender, Swiatly, Mike Lutz, Litty, Hedrich, Olson,
Schneider, and McCulloch conspired to violate his due process rights in
his BDR hearings and appeals.

•

Defendants Hrudka and Agent Lutz released confidential information
without plaintiff’s consent.

9

•

Defendants Agent Lutz, Bucholtz, Beckwith, Schwartz, and Marik all took
actions resulting in plaintiff’s probation being revoked even though he was
a 980 patient.

•

Agent Lutz discriminated against plaintiff in the revocation proceedings by
not considering plaintiff for certain “alternatives to revocation.”

•

Defendant Agent Lutz and Bucholtz allowed false testimony about
plaintiff’s completion of programming, making it more likely that he
would be revoked.

•

Defendant Marks intentionally prepared classification forms with false
information.

•

Defendants Agent Lutz, Kneepkens, McCulloch, and Parker prevented
him from obtaining his money and legal property, depriving him of access
to the courts.

a.

Due process in BDR proceedings

Plaintiff alleges that defendants Spees, Lavender, Swiatly, Mike Lutz, Litty, Hedrich,
Olson, Schneider, and McCulloch conspired to violate his due process rights in his BDR
hearings and appeals. Plaintiff states that he “was not allowed to present evidence, cross
examine witnesses, or face his accusers. He was not given copies of the reports or other evidence
that was being used against him to impose disciplinary restrictions.” Dkt. 2-2, at 7. However,
Chapter 980 patients, like prisoners, are not entitled to due process protections unless their
duration of confinement is increased or they are subjected to an “atypical and significant”
hardship. Thielman v. Leean, 282 F.3d 478, 483-84 (7th Cir. 2002); see also Sandin v. Conner, 515
U.S. 472, 484 (1995) (describing “atypical and significant” hardship standard for prisoners).
This court has previously concluded that the usual consequences of a BDR hearing for Chapter
980 patients does not constitute “atypical and significant” hardship, so he cannot bring due
process claims regarding how the hearing was conducted. See, e.g., Martin v. Bartow, 2009 WL
4042896, at *1 (W.D. Wis. Nov. 19, 2009) (Chapter 980 patient’s loss of various activities and
privileges did not create liberty interest under Sandin); Hogan v. State of Wisconsin, 2006 WL

10

2849870, *2 (W.D. Wis. 2006) (Chapter 980 patient did not retain liberty interest in level of
classification, including placement in short-term segregated confinement); see also Thielman, 282
F.3d at 483-84 (“Sandin teaches that any person already confined may not nickel and dime his
way into a federal claim by citing small, incremental deprivations of physical freedom.”).
Plaintiff argues that his duration of confinement was increased, because, as a person with
“dual status” as a Chapter 980 patient and as a probationer, he was sent to prison because of
the BDR. Dkt. 71, at 20. However, the undisputed facts show that the BDR had nothing to do
with the revocation proceedings. The ALJ revoking plaintiff’s probation concluded that the state
did not establish a probation violation on the allegations regarding sexual conduct that were also
part of the BDR. Dkt. 59-4, at 204. Instead, plaintiff’s probation was revoked because of his
refusal to continue assessments, which was not part of the BDR. Id. at 204-05. Accordingly,
plaintiff fails to state a claim that any of his due process rights were violated by the BDR
process.
I also understand plaintiff to be arguing that his rights under Wis. Stat. § 51.61 (titled
“Patients rights”) were violated by the BDR process. However, under Wisconsin’s notice of
claim law, Wis. Stat. § 893.82, he cannot maintain a state law cause of action without first
submitting written notice of his claims to the Wisconsin attorney general, stating the time, date,
location, and circumstances of the events giving rise to the claims, and the names of people
involved. Plaintiff’s notice of claim in this action does not reference any of the events
concerning the BDR, and as is discussed further below, would not have been timely filed
following these events, even if plaintiff had included them in his notice.

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b.

Confidential information

I understand plaintiff to be bringing claims against defendant Hrudka for sending
confidential “protected health information” to defendant Agent Lutz without plaintiff’s
permission.
Hrudka sent Agent Lutz an email stating:
Here is the scanned copy of the BDR on SRSTC patient Matthew Tyler. He is
currently appealing the BDR to the Director. Pt Tyler also withdrew from
treatment upon receipt of this BDR. Please call me with any questions or
concerns. Thank you.
Dkt. 64-2 at 91. This message appears to have spurred Agent Lutz to place a probation hold on
plaintiff.
The question is what potential claims could arise from this allegation. In his complaint,
plaintiff cites the Health Insurance Portability and Accountability Act (HIPPA), but he cannot
bring such a claim because HIPAA does not create a private cause of action or an enforceable
right for purposes of a federal lawsuit. See, e.g., Kobishop v. Marinette Cnty. Sheriff’s Dep’t, 2013
WL 3833990, at *2 (W.D. Wis. July 24, 2013); Dodd v. Jones, 623 F.3d 563, 569 (8th Cir.
2010); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010). Plaintiff also suggests that
defendant Hrudka violated Wis. Stat. § 51.30(4)(b)(10)d., which is part of the statue explaining
under what circumstances confidential treatment records may be released without a person’s
consent. That provision states that records may be provided to a probation agent as follows:
Any information necessary to establish, or to implement changes in, the
individual’s treatment plan or the level and kind of supervision on probation,
extended supervision or parole, as determined by the director of the facility or the
treatment director. In cases involving a person transferred back to a correctional
facility, disclosure shall be made to clinical staff only. In cases involving a person
on probation, extended supervision or parole, disclosure shall be made to a
probation, extended supervision and parole agent only. The department shall
promulgate rules governing the release of records under this subdivision.

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Thus, even under the terms of this statute, it was appropriate for Hrudka to notify Agent Lutz
about plaintiff’s withdrawal from treatment, as one aspect of plaintiff’s withdrawal (further
assessment) directly violated one of plaintiff’s conditions of extended supervision. Plaintiff
states that his “commitment under chapter 980 is not a condition of his extended supervision
plan,” Dkt. 71, at 32, but this is not the point. His agreement to undergo continuing
assessments was undisputedly a condition of his confinement, and Agent Lutz had a right to
know about whether he was meeting that condition. Therefore plaintiff cannot succeed on a
claim under § 51.30.
Plaintiff also brings a claim that defendant Agent Lutz shared information with a
Chapter 980 patent named Lee R. In a conversation with Agent Lutz about a separate incident,
Lee R. told her that he had two witnesses, including plaintiff. Agent Lutz told Lee R. that he
would not want to call plaintiff as a witness because he was being revoked for “sexual
misconduct” and that he was not credible. Dkt. 46-1, at 14. It is unclear how plaintiff believes
this information could constitute confidential information. It is implausible to suggest that
probation revocation records could be “treatment records” under Wis. Stat. § 51.30, and
plaintiff does not argue any other source of a potential claim, nor has my research revealed any
possible causes of action that could be supported by this allegation. Accordingly, I will dismiss
plaintiff’s complaint regarding this allegation against Agent Lutz.
c.

Probation revocation

I understand plaintiff to be alleging that his rights were violated when he “was illegally
transferred from the custody of the DHS to the custody of the Department of Corrections . . .
without a court order from the court which placed [plaintiff] in the custody of the DHS.” Dkt.
2-2, at 2. Plaintiff was revoked for failing to meet the condition that he “[c]ontinue counseling
and other assessments to be determined.” Dkt. 59-4, at 204. Defendants Agent Lutz and

13

Bucholtz commenced the revocation proceedings, defendant ALJ Beckwith revoked plaintiff’s
probation for his decision to stop treatment and defendant Schwartz upheld that decision.
Plaintiff also alleges that defendant Marik, a DCC Corrections Field Supervisor, “sanctioned the
illegal actions of [Sand Ridge] staff and the Division of Community Corrections” in ways that
contributed to plaintiff being imprisoned after revocation. Id. at 11. Finally, from plaintiff’s
summary judgment materials, I understand him to be arguing that defendant Hedrich
mischaracterized plaintiff’s withdrawal from “treatment” as a withdrawal from “assessment.”
The thrust of plaintiff’s claim seems to be that plaintiff believes that he should not have
been revoked on his criminal conviction while he was a Chapter 980 patient, and he suggests
that he was not subject to conditions of extended supervision while he was civilly committed.
He also argues that he was revoked for refusing treatment, which he would usually have the
right to do under Wis. Stat. § 51.61 as a civilly committed person.
However, as defendants argue, these issues have already been resolved by the Wisconsin
courts on plaintiff’s appeal of the revocation, and thus plaintiff is precluded from relitigating
them in this court. See State ex rel. Tyler v. Wiedenhoeft, 2013 WI App 115, 350 Wis. 2d 507, 838
N.W.2d 137. A state court judgment is entitled to the same preclusive effect in federal court as
that judgment would have in state court. Allen v. McCurry, 449 U.S. 90, 96 (1980). The test for
issue preclusion in Wisconsin has two parts. The first is whether “the question of fact or law
that is sought to be precluded actually must have been litigated in a previous action and [have
been] necessary to the judgment.” Mrozek v. Intra Financial Corp., 2005 WI 73, ¶ 17, 281
Wis. 2d 448, 699 N.W.2d 54. If the issue has actually been litigated, the second part of the test
requires that it be “fundamentally fair to employ issue preclusion given the circumstances of the
particular case at hand.” Id. The factors that courts may consider when undertaking the second
step are:

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(1) could the party against whom [collateral estoppel] is sought, as a matter of
law, have obtained review of the judgment; (2) is the question one of law that
involves two distinct claims or intervening contextual shifts in the law; (3) do
significant differences in the quality or extensiveness of proceedings between the
two courts warrant relitigation of the issue; (4) have the burdens of persuasion
shifted such that the party seeking [collateral estoppel] had a lower burden of
persuasion in the first trial than in the second; or (5) are matters of public policy
and individual circumstances involved that would render the application of
collateral estoppel to be fundamentally unfair, including inadequate opportunity
or incentive to obtain a full and fair adjudication in the initial action?
Michelle T. v. Crozier, 173 Wis.2d 681, 689, 495 N.W.2d 327, 330–31 (1993) (footnote
omitted).
Both parts of these tests are met in this case. The ALJ, Dkt. 59-4, circuit court, Dkt. 4-5,
and court of appeals, Dkt. 4-6, all concluded that plaintiff was indeed on extended supervision
while he was a Chapter 980 patient, and that his refusal to participate in an assessment violated
the conditions of his probation. As for the factors mentioned in the second part of the test, there
have been no intervening shifts on the law, and plaintiff was clearly given a fair, extensive
opportunity to litigate these issues in the state proceedings, through both two rounds of
administrative review and two rounds of court review.
The only argument plaintiff raises that addresses the issue preclusion argument is that
the ALJ and courts failed to address the issue whether plaintiff had the right to refuse treatment
under Wis. Stat. § 51.61, as opposed to whether he refused an assessment. However, the issue of
refusing treatment is irrelevant because the record shows that plaintiff was revoked for refusing
assessment, not treatment, as noted by the court of appeals. State ex rel. Tyler, 2013 WI App
115, ¶ 7. The court stated, “Tyler’s argument that his right to refuse treatment under WIS.
STAT. § 51.61 trumps the conditions of his extended supervision fails because that statute does
not allow a WIS. STAT. ch. 980 patient to refuse assessment.” The court explicitly noted that it
“express[ed] no opinion on the question of whether WIS. STAT. § 51.61 would affect a

15

condition of extended supervision that required participation in treatment.” Id. at ¶ 7 n.2.
Because Wisconsin courts have already ruled on the questions of plaintiff’s status on extended
supervision and whether his refusal to be assessed violated a condition of his extended
supervision, plaintiff cannot bring claims against the defendants for revoking his probation.
Alternatively, I conclude that defendants are correct when they argue that at least some
of plaintiff’s claims regarding his revocation are barred by immunity. Defendants Beckwith and
Schwartz have absolute immunity in their quasi-judicial roles in the revocation process. Smith v.
Gomez, 550 F.3d 613, 618-19 (7th Cir. 2008) (“when officials engage in activities that are
inexorably connected with the execution of parole revocation procedures and are analogous to
judicial action they are also entitled to absolute immunity”) (quotation omitted).
In his complaint, plaintiff does not explain how defendant Marik was involved in the
revocation process, but on summary judgment states that he “presided over [his] preliminary
hearing.” Given the notice of preliminary hearing submitted by plaintiff, I understand Marik’s
role in that hearing was to determine whether there was probable cause to believe that plaintiff
violated the conditions of his extended supervision. See Dkt. 74-2, at 116. This is a role
sufficiently analogous to judicial action that Marik has absolute immunity as well.
d.

Discrimination based on disability

Plaintiff also alleges that Agent Lutz discriminated against him in the revocation
proceedings by not considering plaintiff for certain “alternatives to revocation” because he was
committed under Chapter 980. Agent Lutz’s “revocation summary” stated that placing plaintiff
in a halfway house was “unavailable” for “civilly committed offenders” and that “Institutional
Programming for community based SOT, CGIP” was “currently unavailable” for civilly
committed offenders who were required, under Chapter 980, to be housed at a treatment
facility. Dkt. 79, at 34.

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It is difficult to understand the precise theory behind plaintiff’s claims. Plaintiff states
that he is “protected from discrimination by the Americans with Disabilities Act, the
Rehabilitation Act and the laws of the State of Wisconsin” and suggests that he has an equal
protection claim as well. Dkt. 2-2 at 2, 9. Plaintiff appears to believe that his “mental disorder”
causing his sex offender status is his disability, although he appears to be basing an equal
protection claim on the disparate treatment he received as a sex offender who is currently civilly
committed, as opposed to other sex offenders who are not committed.
In any event, plaintiff’s claims are fundamentally flawed and must be dismissed. As a
starting point, plaintiff cannot bring claims under the ADA or Rehabilitation Act against
government officials such as Agent Lutz in their individual capacities, as these types of claims
can only be brought against “public entities.” See Jaros v. Illinois Dept. of Corrections, 684 F.3d
667, 670 (7th Cir. 2012). Even to the extent that plaintiff might be able to bring these types of
claims as official capacity claims against the Department of Corrections, or would be able to
bring individual capacity claims under the Equal Protection Clause or any Wisconsin law, the
alleged discriminatory acts cannot support a claim under any of these theories.
Defendants state that they “have located no federal or State court decision that could
conceivably support the concept that an agent violates disability discrimination laws by
determining a potential alternative to revocation out in the community to be unavailable
because the probationer is civilly committed.” Dkt. 41, at 38. This is unsurprising, as the
premise behind these claims is that plaintiff, even though he was civilly committed under
Chapter 980, should have been considered for a revocation placement outside of a treatment
facility or prison. Placement in the community is logically incompatible with the commitment
order already in place, so I cannot conceive of a possible claim for discrimination against

17

government officials who do not consider an outside placement for a civilly committed patient
upon revoking the terms of his probation.
e.

False statements during revocation

I understand plaintiff to be bringing constitutional due process claims and state law
malicious prosecution claims regarding allegedly knowingly false statements made by Agent Lutz
and concealed by both Agent Lutz and defendant Bucholtz during and after the revocation
proceedings.
July 7, 2011 Lutz completed a “revocation summary” form in which she wrote the
following under “Alternative [to revocation] Considered”: “To offer Mr. Tyler an Alternative to
Revocation to include RCI SOT ATR Program is an inappropriate sanction due to the fact that
he has completed the Beacon program SO-4: Intensive Residential, which is a more intensive
Sex Offender Treatment Program than what is provided in this program.” Dkt. 74-2, at 36.
Plaintiff alleges that this is false, because he did not enroll in or complete the Beacon program.
Plaintiff also alleges that both Agent Lutz and defendant Bucholtz knew this was false, yet
“withheld the truth” until June 23, 2012. Agent Lutz went so far as to testify about plaintiff’s
completion of the Beacon program at the revocation hearing. I understand plaintiff to be saying
that this false information foreclosed a possible alternative to revocation.
Defendants initially point out that there are disputes of fact regarding whether Agent
Lutz and defendant Bucholtz knowingly lied about this information, which is an issue beyond
the scope of this motion on “threshold issues.” But they go on to argue that even if these
defendants did lie or withhold information, plaintiff’s claims would be barred by absolute
immunity. I conclude that defendants are correct about two aspects of the timeline concerning
these claims, but defendants do not fully develop an argument about the third aspect.

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First, with regard to the “revocation summary” document containing Agent Lutz’s
recommendation that plaintiff’s probation be revoked, Agent Lutz is entitled to absolute
prosecutorial immunity for her actions acting as an advocate for the state. Smith, 550 F.3d at
617–18 (7th Cir. 2008) (prosecutorial immunity may extend to probation agents). Second, to
the extent that plaintiff argues that Agent Lutz and Bucholtz “withheld the truth” about
plaintiff’s non-completion of the Beacon program even after the revocation hearing had
concluded, both defendants may rely on prosecutorial immunity as well. See Fields v. Wharrie,
672 F.3d 505, 514-15 (7th Cir. 2012) (“As the original prosecutor, however, he was not fully
divorced from Fields’ judicial proceedings until all direct judicial remedies were exhausted and
Fields’ conviction became final. It follows that the immunity attendant to his prosecutorial
disclosure obligation survives his departure from the courtroom as well.”).
That leaves the claim about Agent Lutz’s allegedly false testimony at the hearing itself.
Under Briscoe v. LaHue, 460 U.S. 325, 335–36 (1983), witnesses enjoy absolute immunity from
civil damages for claims related to their testimony. See also Curtis v. Bembenek, 48 F.3d 281, 285
(7th Cir. 1995). The absolute immunity announced in Briscoe applies to a prosecutor testifying
in a judicial proceeding. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992).
Defendants argue that, “[w]ithout exception, witnesses enjoy absolute immunity from
civil liability on account of their testimony.” Dkt. 60, at 30. But this is not entirely accurate: an
exception to the rule of absolute testimonial immunity exists for “complaining witnesses.”
Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir. 1999). A complaining witness is one “who
actively instigated or encouraged the prosecution of the plaintiff.” Curtis, 48 F.3d at 286. It
would seem that Agent Lutz is a complaining witness, as she was intimately involved in bringing
the revocation proceedings, but defendants do not cite to any authority discussing this murky
area of the law. Defendants argue that all of their arguments in favor of dismissal should be

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conceded because plaintiff does not develop an argument opposing defendants, but I will not
hold a pro se plaintiff to such a stringent standard where defendants have not fully developed an
argument supporting their own motion. This is a topic defendants may revisit if they choose to
file a dispositive motion following the opening of discovery, but for now, these claims will
proceed.
f.

Classification forms

Plaintiff alleges that defendant Marks, an offender classification specialist, intentionally
prepared classification forms with false information. Defendants argue that plaintiff’s claim is
too vague to make out and that he has not pleaded what they believe to be a fraud claim with
particularity. Based on plaintiff’s summary judgment materials, I understand him to be arguing
that he was unfairly placed in a maximum-security prison for four months instead of a lower
security setting. Plaintiff also suggests that he was briefly placed in segregation based on Marks’s
report. Dkt. 80, at 56-57. This claim is more properly characterized as a due process claim
regarding his prison assignment, but generally, prisoners have “no due process right to be housed
in any particular facility.” Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir. 1995) (prisoner’s
transfer to maximum security prison did not implicate his federal due process rights). A prison
assignment might implicate a liberty interest if the prisoner is sent to extremely harsh conditions
of confinement such as segregation, for extended periods of time, see Wilkinson v. Austin, 545
U.S. 209, 222-24 (2005), but none of the allegations in the complaint or proposed findings of
fact support such a claim. Accordingly, plaintiff’s claims against Marks must be dismissed.
g.

Property and access to the courts

Plaintiff alleges that defendants Agent Lutz, Kneepkens, McCulloch, and Parker
prevented him from obtaining his money and property upon his transfer to the Milwaukee
Secure Detention Facility, which plaintiff says resulted in a violation of his right to access the

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courts. Defendants argue in part that none of the defendants intentionally withheld any
property of his. This is a factual dispute that cannot be fully fleshed out in the current briefing
on “threshold issues” without allowing discovery.
Confined or detained persons have a constitutional right to “meaningful access to the
courts” to pursue post conviction remedies and to challenge the conditions of their confinement.
Bounds v. Smith, 430 U.S. 817, 821–22 (1977); Lehn v. Holmes, 364 F.3d 862, 865–66 (7th Cir.
2004). To succeed on such a claim, plaintiff must show that defendants’ interference caused an
“actual injury,” which means that it must have caused plaintiff to lose a meritorious claim or the
chance to seek particular relief. Lewis v. Casey, 518 U.S. 343, 346–348 (1996); Christopher v.
Harbury, 536 U.S. 403, 414 (2002); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). The
named defendants must have been personally responsible for the constitutional violation; a
plaintiff cannot rely on supervisory or respondeat superior liability to make out a constitutional
claim. Morfin v. City of East Chicago, 349 F.3d 989, 1001 (7th Cir. 2003).
It is undisputed that plaintiff ultimately shipped his property to Ronald Tyler. In the
interim, while plaintiff’s property was being held by prison officials, even assuming the named
defendants were responsible for the withholding of that property, plaintiff fails to state a claim
upon which relief can be granted because he does not identify any meritorious legal action that
he lost because he failed to have his property or money at his disposal. The only litigation
plaintiff mentions is his revocation and appeals of that decision, but it is clear from the
Wisconsin courts’ rulings and my own review of the record that plaintiff did not have a
meritorious case; he failed to comply with the terms of his extended supervision. The main
thrust of plaintiff’s opposition to the revocation was that he was not actually on extended
supervision as a Chapter 980 patient, but that position has no merit. Plaintiff does not provide

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any other suggestion of how the outcome of his proceedings would have been different.
Therefore, I will grant defendants’ motion for summary judgment on this claim.
h.

Notice of claim

Aside from their claim-specific arguments, defendants also argue that plaintiff’s state law
claims for damages must be dismissed because he did not give proper notice with respect to each
incident of harm in compliance with the requirements of Wisconsin’s notice-of-claim statute,
Wis. Stat. § 893.82. Under this statute, none of plaintiff’s state-law claims may be brought
“unless within 120 days of the event causing the injury, damage or death giving rise to the civil
action or civil proceeding, the claimant in the action or proceeding serves upon the attorney
general written notice of a claim stating the time, date, location and the circumstances of the
event giving rise to the claim for the injury, damage or death and the names of persons involved,
including the name of the state officer, employee or agent involved.” Section 893.82(3).
Plaintiff’s complaint states, “The events causing injury were revealed on September 21,
2011. Pursuant to Wis. Stat § 893.82, Tyler filed a notice of claim on January 18, 2012.”
Defendants note that plaintiff appears to be arguing that the 120-day time limit should be
allowed to start on this date, which would place his notice arguably within 120 days of
September 21, 2011 (although plaintiff states that he submitted the notice into the prison mail
stream on January 18, 2011, defendants state that the Notice of Claim was postmarked January
21, 2012 and received by the Attorney General on January 24, 2012, both dates being more
than 120 days from September 21, 2011).
Defendants persuasively argue that plaintiff cannot use the “discovery rule” to push the
date of various events forward to September 21, 2011; the general rule in Wisconsin is that the
time to file a notice of claim runs from the date of the injury, not the date on which the
claimant discovers the injury. Weis v. Bd. of Regents of the Univ. of Wisconsin Sys., 837 F. Supp. 2d

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971, 979 (E.D. Wis. 2011) (citing Oney v. Schrauth, 197 Wis.2d 891, 899–900, 541 N.W.2d
229, 231–32 (Ct. App. 1995) (noting that notice of claim statute specifically allows for
application of discovery rule for medical malpractice claims, or actions based on contribution or
indemnification, but is silent as to any other claim). Therefore, the relevant date is when each
event giving rise to the claim occurred.
Many of plaintiff’s state claims predate the 120-day limit, including his claims about the
BDR, release of confidential information, and parts of his claims about his alternatives to
revocation, defendants’ alleged false information about the alternatives, and claims about his
property. Other claims, such as the BDR claims, are not mentioned at all in the notice of claim
and thus fail on that ground.
The one state claim not already dismissed on other grounds is plaintiff’s malicious
prosecution claim against Agent Lutz for lying in the September 21, 2011 hearing about
plaintiff’s completion of the Beacon program. This claim could survive defendants’ notice-ofclaim-argument depending on the dispute over when plaintiff sent the notice, so I will not
dismiss it before further discovery has been conducted.
2.

Official capacity claims

Plaintiff also states that he is bringing official capacity claims against each defendant for
the various alleged violations of his rights. Even if plaintiff could bring many of the federal
claims he attempts to state in his complaint, virtually all of his claims would be barred by the
doctrine of sovereign immunity. That doctrine is derived from the Eleventh Amendment and
generally bars actions in federal court against a state, state agencies, or state officials acting in
their official capacities,” Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin.,
603 F.3d 365, 370 (7th Cir. 2010), unless the state waives immunity, Congress abrogates it or
the claim falls under the exception articulated by the Supreme Court in Ex Parte Young, 209 U.S.

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123 (1908). Under Ex parte Young, a plaintiff may file “suit[ ] against state officials seeking
prospective equitable relief for ongoing violations of federal law . . . .” Marie O. v. Edgar, 131
F.3d 610, 615 (7th Cir. 1997).
The only arguable claim for prospective relief relates to plaintiff’s requests for his 12
boxes of property to be returned to him, by which I understand him to be saying that he wants
the property with him at Sand Ridge instead of with his relative on the outside. But in any
event, I have already concluded that plaintiff fails to state an access to the courts claim
regarding this property so there is no need to consider an official capacity claim on this theory.
Accordingly, all of plaintiff’s official capacity claims will be dismissed.

ORDER
IT IS ORDERED that:
1.

Plaintiff’s motion for preliminary injunctive relief regarding his legal materials,
Dkt. 32, is DENIED.

2.

Defendants’ motion for summary judgment, Dkt. 41, is GRANTED in all respects
except regarding plaintiff’s federal and state claims against defendant Agent Lutz
in her individual capacity for providing false information at plaintiff’s revocation
hearing.

3.

All defendants other than Agent Lutz are DISMISSED from the case.

4.

The current schedule is STRICKEN and a new schedule will be set shortly.

Entered March 31, 2015.

BY THE COURT:
/s/
________________
JAMES D. PETERSON
District Judge

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