Jones, Robert v. Knox, Cheryl et al

Filing 4

ORDER that plaintiff Robert Jones is DENIED leave to proceed on constitutional claims against defendants Probation and Parole Department and Paul Barnett, and those defendants are DISMISSED from the case. The remainder of plaintiff's complaint, dkt. # 1 , is DISMISSED for failure to comply with Fed. R. Civ. P. 8. Plaintiff may have until May 27, 2014 to submit an amended complaint. Signed by District Judge Barbara B. Crabb on 5/5/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ROBERT JONES,
ORDER
Plaintiff,
14-cv-77-bbc1
v.
CHERYL KNOX, JOHN OLSZEWSKI,
PROBATION & PAROLE DEPARTMENT
and PAUL L. BARNETT,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Robert Jones, a Madison, Wisconsin resident, has filed a proposed lawsuit
alleging that his constitutional rights were violated when he was arrested, placed in custody
and had his probation revoked and extended even though his probation had expired before
these events occurred. Plaintiff seeks leave to proceed in forma pauperis and the court has
already allowed him to proceed without prepayment of any portion of the $350 filing fee for
this case. The next step is to screen plaintiff’s complaint and dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks
for money damages from a defendant who by law cannot be sued for money damages. 28
U.S.C. § 1915. In addressing any pro se litigant's complaint, the court must read the
allegations of the complaint generously. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.

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I am assuming jurisdiction over this case for the purpose of issuing this order.

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2010).
After considering plaintiff’s allegations, I will dismiss defendants Probation and Parole
Department and Paul Barnett because plaintiff cannot bring suit against them in this court.
Further, I will dismiss the remainder of plaintiff’s complaint because it does not satisfy the
pleading requirements of Federal Rule of Civil Procedure 8, but I will give plaintiff a chance
to file an amended complaint.
I draw the following facts from plaintiff’s complaint, attached transcript of his
February 25, 2011 hearing and electronic record of plaintiff’s criminal proceedings in Dane
County case no. 2004CF2075 available at www.wcca.wicourts.gov.

ALLEGATIONS OF FACT
On January 19, 2005, plaintiff Robert Jones pleaded no contest to two counts of
forgery in a criminal case in the Circuit Court for Dane County, Wisconsin. Plaintiff was
continued on probation for several years. At a February 12, 2010 probation review hearing,
Judge David Flanagan decided to extend plaintiff’s probation for six months; an order
memorializing this extension was docketed on February 23, 2010.

However, shortly

thereafter another entry was made in the court docket stating that plaintiff “was discharged
by [the Wisconsin] Department of Corrections on 2-24-2010.”
On August 13, 2010, the court held a probation review hearing, at which plaintiff did
not appear. (Plaintiff states that in June 2010 he moved from Madison, Wisconsin to
Atlanta, Georgia “to start a new life.”) The court issued a bench warrant. Plaintiff was

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arrested in Georgia on February 11, 2011, transported back to Madison and detained until
a February 25, 2011 bond hearing.
Defendant Paul Barnett, an assistant district attorney, appeared at the hearing on
behalf of the state. Also present at the hearing was defendant probation and parole officer
Cheryl Knox, who appeared “on behalf” of defendant John Olszewski (who I understand to
be plaintiff’s probation agent). At the hearing, Judge Flanagan noted that there were what
“looks like two discharge certificates from the Department of Corrections” indicating that
plaintiff had been discharged from his probation. Defendant Knox stated, “Our records from
what I have from [Olszewski] do not indicate that the case discharged.” Defendant Barnett
suggested that the discharge paperwork had likely been started before plaintiff’s probation
was extended and then “was not caught” after the court issued the extension of his probation
on February 12, 2010.
Judge Flanagan stated, “I don’t doubt that there has been some sort of mistake, and
I don’t know if he’s still on probation or not” and “. . . right now I’ve got this discharge in
my hand and I haven’t got a retraction of it, I’m not ruling that [plaintiff] can’t be declared
to be on probation, but I don’t think I’ve got a reason to hold him in the Dane County jail
. . . .” Defendant Barnett responded that defendant Knox told him that “a probation hold
[had] been placed on [plaintiff],” and suggested that while plaintiff was being detained on
the probation hold, defendants Knox and Olszewski would “do their best to get this snafu
cleared up.” Judge Flanagan withdrew the bench warrant but stated, “If the sheriff thinks
he’s got authority to hold [plaintiff] based on your probation hold . . . I don’t think I have

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that issue in front of me and I don’t see any reason to take it up.” (I can infer from
plaintiff’s allegations that he remained in custody following the hearing.)
In May 2011, plaintiff’s probation was revoked and he was sentenced to a term of
prison. (It appears that plaintiff had been released from prison by the time he filed his
complaint). Plaintiff states that “they” extended his probation until April 13, 2013.

OPINION
I understand plaintiff to be bringing claims under 42 U.S.C. § 1983 against
defendants for violating his constitutional rights when he was arrested, placed in custody and
had his probation revoked and extended even though his probation expired before all of
these events. I am extremely dubious of plaintiff’s contention that his probation had expired
before these events occurred, as the criminal record seems to contradict this; it shows that
Judge Flanagan extended plaintiff’s probation in a February 23, 2010 order. However, at
the February 25, 2011 hearing, Judge Flanagan withdrew his own bench warrant and
indicated that he was unsure whether plaintiff was actually still subject to probation.
Although I think it is likely that further facts will show that plaintiff was legally on
probation, at this point, construing the facts plaintiff has provided generously, I will credit
his assertion that he was no longer on probation.
Even so, there are several problems with plaintiff’s complaint, starting with the
question whether plaintiff has named defendants capable of being sued in this court.
Defendant “Probation and Parole Department,” which I understand to be a division within

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the Wisconsin Department of Corrections, cannot be sued in actions like this one brought
under § 1983, because that statute limits liability to “persons” only. Will v. Michigan
Department of State Police, 491 U.S. 58, 66–67 (1989); Witte v. Wisconsin Department
of Corrections, 434 F.3d 1031, 1036 (7th Cir. 2006). Also, to the extent that plaintiff
believes that defendant assistant attorney general Paul Barnett had a hand in his
incarceration and extended term of probation, Barnett is immune from suit for his actions
in court as a prosecutor, Millspaugh v. County Department of Public Welfare of Wabash
County, 937 F .2d 1172, 1175 (7th Cir. 1991). Accordingly, I will dismiss these defendants
from the case.
This leaves probation agents Cheryl Knox and John Olszewski. Plaintiff’s allegations
and the state criminal record are fairly bare, but I understand plaintiff to be alleging that his
constitutional rights were violated in the following ways:
•

he was unlawfully arrested in Georgia;

•

he was unlawfully detained both before and after the February 25, 2011 bond
hearing;

•

his probation was unlawfully revoked in May 2011; and

•

his probation was unlawfully extended.

These events could arguably support constitutional claims against probation officials
involved in them. Burke v. Johnston, 452 F.3d 665, 667 (7th Cir. 2006) (claim against
corrections officials for failing to grant proper jail credit, resulting in incarceration without
legal basis, raises Eighth Amendment claim); Knox v. Smith, 342 F.3d 651, 658 (7th Cir.
2003) (parole officer could violate Fourth Amendment by requesting warrant without

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reasonable suspicion to believe that parolee violated terms of parole); Campbell v. Peters,
256 F.3d 695, 700 (7th Cir. 2001) (plaintiff may bring Eighth Amendment claim for being
incarcerated longer than he should have been); Wilson v. Kelkhoff, 86 F.3d 1438, 1445-46
(7th Cir. 1996) (corrections official’s decision to initiate revocation proceedings by preparing
baseless violation report and notice of charges could violate right to due process).
However, plaintiff’s complaint suffers from a lack of detail explaining how defendants
Knox and Olszewski were involved in these events. Federal Rule of Civil Procedure 8
requires a plaintiff to provide “a short and plain statement of the claim showing that the
pleader is entitled to relief.” This means that the complaint must contain enough allegations
of fact to make a claim for relief plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.

In addition, liability under 42 U.S.C. § 1983 arises only when a

defendant is personally responsible for the deprivation of which the plaintiff complains.
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). This means that I cannot allow
plaintiff to proceed on constitutional claims against Knox and Olszewski unless he explains
what they did personally to violate his rights.
Because plaintiff’s allegations do not pass muster under Rule 8, I will dismiss the
complaint and give plaintiff an opportunity to file an amended complaint that provides fair
notice to defendants of the claims he is asserting against them. Plaintiff should draft the
amended complaint as if he were telling a story to people who know nothing about his

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situation. This means that someone reading the complaint should be able to understand
what part Knox or Olszewski or both played in plaintiff’s illegal arrest, detention, probation
revocation and probation extension.
To the extent that plaintiff believes that other law enforcement officials besides Knox
and Olszewski violated his rights, he may include those officials as defendants, but he will
have to amend the caption of his complaint to include those officials and explain in the body
of the complaint what they did to violate his rights. I note that plaintiff may not have a
remedy for every perceived violation of his rights; to the extent that it was Judge Flanagan’s
factual or legal determinations that harmed plaintiff, plaintiff may not bring suit against
Flanagan because he has absolute immunity for all actions taken as part of his judicial
functions, as opposed to his executive or administrative functions. Mireles v. Waco, 502
U.S. 9 (1991). Similarly, probation officials are entitled to absolute immunity in taking
actions that “involve decision-making that is ‘judicial’ in nature,” such as “acts associated
with the decision to grant, revoke, or deny [probation], or the signing of an arrest warrant.”
Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005).

ORDER
IT IS ORDERED that
1. Plaintiff Robert Jones is DENIED leave to proceed on constitutional claims against
defendants Probation and Parole Department and Paul Barnett, and those defendants are
DISMISSED from the case.

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2. The remainder of plaintiff’s complaint, dkt. #1, is DISMISSED for failure to
comply with Fed. R. Civ. P. 8. Plaintiff may have until May 27, 2014 to submit an amended
complaint. If plaintiff fails to do so by this deadline, I will direct the clerk of court to enter
judgment in favor of defendants.
Entered this 5th day of May, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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