Dumas, Olton v. Department of Corrections et al

Filing 17

ORDER denying 11 Motion to Dismiss. Signed by District Judge James D. Peterson on 6/7/2016. (jef),(ps)

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

OLTON L. DUMAS,

v.

Plaintiff,

VICTORIA L. TUCKER and CHLOE MOORE,

OPINION & ORDER
15-cv-454-jdp

Defendants.
Pro se prisoner Olton Dumas is proceeding with Fifth and Fourteenth Amendment
claims against defendants Victoria Tucker and Chloe Moore. Plaintiff alleges that Tucker and
Moore, who are both agents in the Wisconsin Department of Corrections (DOC)—Division
of Community Corrections, violated his due process rights by depriving him of a preliminary
hearing before revoking his extended supervision. Specifically, plaintiff alleges that Tucker
and Moore improperly drafted a statement for plaintiff to sign that admitted to violating a
condition of his supervised release, and that they forged his signature on the statement.
Tucker and Moore now move to dismiss plaintiff’s complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Dkt. 11. They contend that the unlawful conduct that plaintiff
alleges was “random and unauthorized,” meaning that it would have been impossible for the
state to provide plaintiff with pre-deprivation remedies. And because plaintiff had adequate
post-deprivation remedies, Tucker and Moore argue that plaintiff cannot pursue his due
process claims in federal court. I conclude that Tucker and Moore’s conduct was not “random
and unauthorized,” and so I will deny their motion to dismiss.

ALLEGATIONS OF FACT
I draw the following facts from plaintiff’s complaint, accepting them as true at this
point and drawing all reasonable inferences in plaintiff’s favor. Bonte v. U.S. Bank, N.A., 624
F.3d 461, 463 (7th Cir. 2010). I recounted plaintiff’s allegations in the screening order.
Dkt. 8. But in opposing Tucker and Moore’s motion to dismiss, plaintiff indicates that I
misunderstood some of his allegations and he provides clarification.
In March 2015, plaintiff was serving the extended supervision portion of a criminal
sentence in Wisconsin. Moore was the agent assigned to supervise plaintiff. Around March 6,
2015, plaintiff violated the terms of his extended supervision by failing to report to Moore,
and so she sought an administrative warrant for plaintiff’s arrest. The Beloit Police
Department arrested plaintiff two months later.
After his arrest, plaintiff was detained at a county jail, where officials interviewed him
on two occasions. The first interview was with a Beloit detective, who questioned plaintiff
about a stabbing that the detective was investigating. Plaintiff stated that he wanted counsel,
at which point the interview ended. The second interview was with defendant Tucker. Tucker
began by questioning plaintiff about the stabbing, but the conversation then shifted to other
topics. Tucker wrote down plaintiff’s responses on a DOC-1305 form, which the DOC uses
to record statements. But the form, as Tucker completed it, did not accurately reflect
plaintiff’s statements. Specifically, Tucker did not mention that plaintiff reported that he was
having psychological problems and that discussing certain events from his past caused him
emotional distress. Tucker also did not record the questions that she asked plaintiff.
According to plaintiff, he did not admit to violating any of the conditions of his supervision.

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Tucker asked plaintiff to review the statement. He informed her that he could barely
read it because he did not have his reading glasses. Plaintiff asked Tucker if he could write his
own statement rather than sign the draft that she had prepared, or at least take Tucker’s draft
and review it with counsel before signing it. Tucker refused these requests. Instead, she
pointed to the sections of the form that plaintiff needed to sign, and then she left.
In my screening order, I indicated that plaintiff signed the statement. He has now
clarified that he never did so. Dkt. 14, at 8. But plaintiff also alleges that the DOC waived his
preliminary hearing based on the statement. Dkt. 1, ¶ 41. Thus, I now understand plaintiff to
be alleging that Tucker (or Moore) forged his signature on the written statement. As a result,
plaintiff did not have a preliminary revocation hearing to determine whether there was
probable cause to believe that he had violated the conditions of his supervision.
Plaintiff eventually reviewed the statement that Tucker had prepared. He noticed
several misstatements and omitted facts. In particular, Tucker did not accurately record
plaintiff’s explanations for the actions that led to his arrest, and she mischaracterized
plaintiff’s drug and alcohol use to make it seem as though he had violated the terms of his
supervision. The DOC eventually revoked plaintiff’s extended supervision after holding a
final hearing, and plaintiff returned to prison in September 2015.
Plaintiff filed a complaint in this court on July 23, 2015, before the DOC had
conducted a final revocation hearing. Tucker and Moore have now moved to dismiss
plaintiff’s complaint. I have subject matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331, because plaintiff’s claims arise under federal law.

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ANALYSIS
In screening plaintiff’s complaint, I concluded that he had stated claims against
Tucker and Moore upon which relief could be granted. See Dkt. 8, at 1 (citing 28 U.S.C.
§§ 1915, 1915A). Tucker and Moore now move to dismiss plaintiff’s claims against them
pursuant to Rule 12(b)(6), essentially seeking reconsideration of my screening order. “[T]o
survive a 12(b)(6) motion to dismiss, a complaint must allege facts that ‘state a claim to relief
that is plausible on its face.’” Fuqua v. SVOX AG, 754 F.3d 397, 400 (7th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). I must accept all well-pleaded
facts as true and “assess whether those factual assertions ‘plausibly give rise to an entitlement
to relief.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). With these standards in
mind, I am not persuaded that I erroneously granted plaintiff leave to proceed. I will
therefore deny Tucker and Moore’s motion to dismiss.
For purposes of providing due process of law, the “two important stages in the typical
process of parole revocation” are a preliminary hearing and a final revocation hearing.
Morrissey v. Brewer, 408 U.S. 471, 485-87 (1972). The preliminary hearing is to determine
whether probable cause exists to believe that an offender violated a condition of his extended
supervision, and it occurs before “someone not directly involved in the case.” Id. at 485.
Tucker and Moore indicate that they did not afford plaintiff a preliminary hearing in this
case because he had signed a statement admitting to violating a condition of his supervision.
Dkt. 12, at 8 (citing Wis. Admin. Code DOC § 331.05(2)(b)).
Plaintiff alleges that Tucker intentionally misrepresented plaintiff’s comments in
crafting the statement and that Tucker or Moore forged his signature on the statement.
Tucker and Moore contend that even if the allegations about their misconduct are true,

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plaintiff has alleged only “random and unauthorized” conduct that could not have been
anticipated or addressed through pre-deprivation procedures. This would mean that plaintiff
could not pursue a due process claim in federal court because he had adequate postdeprivation remedies available (e.g., a final revocation hearing). The Seventh Circuit recently
discussed this concept in Armstrong v. Daily, rejecting a similar argument from the defendants
in that case. 786 F.3d 529, 538-46 (7th Cir. 2015). The court of appeals adduced three
guiding points from its survey of Supreme Court precedent on this area of law: “first,
‘random and unauthorized’ conduct means unforeseeable misconduct that cannot practicably
be preceded by a hearing; second, misconduct that is legally enabled by a state’s broad
delegation of power is not ‘random and unauthorized’; and third, an official’s subversion of
established state procedures is not ‘random and unauthorized’ misconduct.” Id. at 543.
Under these standards, I conclude that the conduct that plaintiff has alleged in this case does
not qualify as “random and unauthorized.”
“Evaluating conduct to determine whether it is random and unauthorized involves
determining whether the conduct was predictable. . . . If state procedures allow unfettered
discretion by state actors, then an abuse of that discretion may be predictable, authorized,
and preventable with pre-deprivation process.” Hamlin v. Vaudenberg, 95 F.3d 580, 584 (7th
Cir. 1996) (citations omitted). Here, Tucker and Moore’s conduct may have been contrary to
the DOC’s procedures for interviewing offenders accused of violating the conditions of their
extended supervision. But that does not mean that their conduct was unforeseeable or
unpreventable. If parole agents have discretion to investigate violations and initiate
revocation proceedings, then there is certainly a chance that they could abuse that discretion.
See Armstrong, 786 F.3d at 545 (“It is foreseeable that law enforcement officers will, on

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occasion, act overzealously to pursue conviction of the wrong person. . . . Prosecutor
Norsetter was acting within the broad delegation of power he had been given . . . and
Armstrong was deprived of his liberty through established state procedures.”).
The problem here is that Tucker and Moore’s alleged misconduct essentially denied
plaintiff the very pre-deprivation process that Wisconsin created to protect against abuses of
discretion: a preliminary revocation hearing. Although plaintiff’s claims arise in the context of
revoking an offender’s extended supervision rather than bringing criminal charges, Armstrong
still prevents Tucker and Moore from relying on post-deprivation remedies to preempt
plaintiff’s due process claim. Id. (“Armstrong’s claim is that the procedure he was due—a fair
criminal trial—was rendered unfair by [the prosecutor]’s deliberate wrongdoing.”); see also
Tyler v. Wick, No. 14-cv-68, 2015 WL 8074348, at *6 (W.D. Wis. Dec. 4, 2015) (applying
Armstrong to misconduct that occurred during probation revocation proceedings). Tucker and
Moore’s misconduct was foreseeable and it occurred because of the broad authority that
Wisconsin delegated to them. Under these circumstances, Tucker and Moore’s actions were
not “random and unauthorized.” Thus, they cannot rely on available post-deprivation
remedies to avoid liability for plaintiff’s alleged due process violations.

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ORDER
IT IS ORDERED that defendants Victoria Tucker and Chloe Moore’s motion to
dismiss, Dkt. 11, is DENIED.
Entered June 7, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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