Larsen, Mark v. State of Wisconsin

Filing 15

ORDER granting 13 Motion to Dismiss defendant Richard G. Chandler. Jon E. Litscher is substituted for Edward F. Wall as the sole remaining defendant in this case. Signed by District Judge James D. Peterson on 4/28/2016. (jef),(ps)

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

MARK D. LARSEN,
Plaintiff,
v.
RICHARD G. CHANDLER and EDWARD F. WALL,

OPINION & ORDER
14-cv-284-jdp

Defendants.
Pro se plaintiff Mark D. Larsen alleges that defendants deprived him of property
without due process when they intercepted his tax refund to offset costs associated with his
parole supervision. On September 15, 2015, I granted plaintiff leave to proceed with his due
process claim for injunctive relief against defendants Richard G. Chandler, secretary of the
Wisconsin Department of Revenue, and Edward F. Wall, former secretary of the Wisconsin
Department of Corrections. Dkt. 7.
Now defendant Chandler has moved to dismiss plaintiff’s claim as alleged against him.
Dkt. 13. Defendant Chandler contends that plaintiff should proceed against only defendant
Wall because the Department of Corrections certified plaintiff’s debt for setoff. Plaintiff did
not file a response. I will grant defendant Chandler’s motion.

ALLEGATIONS OF FACT
I discussed plaintiff’s allegations in my September 15, 2015, order, Dkt. 7, and I will
not repeat them in full here. To summarize, plaintiff has alleged that defendants violated his
due process rights by intercepting his tax refund ($2,369) to set-off a debt plaintiff owes the
Department of Corrections for costs associated with plaintiff’s parole supervision ($2,877).

Plaintiff did not receive a hearing or have the opportunity to appeal the decision. Plaintiff
alleges that defendants Chandler and Wall approved and enforced the state law that violated
plaintiff’s rights, Wis. Stat. § 304.074.

ANALYSIS
Wis. Stat. § 71.93 governs Department of Revenue setoffs for debts individuals owe
other state agencies. The statute specifically governs amounts owed to the Department of
Corrections pursuant to Wis. Stat. § 304.074(2), i.e., the reimbursement fee for individuals
on parole. Wis. Stat. § 71.93(1)(a)5. A Wisconsin state agency may certify to the
Department of Revenue any qualifying debt “so that the department may set off the amount
of the debt against a refund to the debtor or so that the department of administration may
reduce a disbursement to the debtor by the amount of the debt.” Id. § 71.93(2). Prior to
certification, the state agency is responsible for notifying the debtor of: (1) its intent to
certify the debt for setoff; and (2) the debtor’s right to appeal. Id. The Department of
Revenue is only responsible for executing the setoff, and the statute specifically states that
“[a]ny legal action contesting a setoff under this paragraph shall be brought against the entity
that certified the debt.” Id. § 71.93(3)(am).
Presumably, plaintiff has sued defendant Wall for the Department of Corrections’ role
in certifying the parole debt, and he has sued defendant Chandler for the Department of
Revenue’s role in executing the setoff. Because Wis. Stat. § 71.93 indicates that the
Department of Corrections (not the Department of Revenue): (1) made the decision to certify
plaintiff’s debt; and (2) was responsible for notifying plaintiff of the certification, I see no
reason to keep defendant Chandler in this case. This decision will not limit or narrow

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plaintiff’s due process claim. And, significantly, plaintiff has not opposed defendant
Chandler’s motion. For these reasons, I will grant the motion to dismiss.
One final point: Edward F. Wall is no longer the secretary of the Department of
Corrections. As I noted in my previous order, Dkt. 7, at 4, plaintiff is suing defendant Wall
in his official capacity. Accordingly, pursuant to Federal Rule of Civil Procedure 25(d), I will
substitute current DOC Secretary Jon E. Litscher for Edward F. Wall, and I will direct the
clerk’s office to amend the caption accordingly.

ORDER
IT IS ORDERED that:
1. Defendant Richard G. Chandler’s motion to dismiss, Dkt. 13, is granted.
2. Jon E. Litscher is substituted for Edward F. Wall as the sole remaining defendant
in this case.
Entered April 28, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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