Rudebush, Damien v. Walker, Scott et al

Filing 9

ORDER denying 8 Motion for Reconsideration. Signed by District Judge James D. Peterson on 1/17/2018. (jef),(ps)

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

DAMIEN MARCUS RUDEBUSH
and all others similarly situated,
Plaintiff,
v.
ORDER
SCOTT WALKER, BRAD SCHIMEL,
JOHN CHISHOLM, KITTY RHODES,
STEPHEN KOPETSKIE, JASON CRAM,
BARB SCHACHERN, JON E. LITCHER,
DOUG BELLILE, AND JASON SMITH,

16-cv-527-jdp

Defendants.
Pro se plaintiff Damien Marcus Rudebush, a patient civilly committed at the Sand
Ridge Secure Treatment Center under Wisconsin’s sexually violent persons law, Wis. Stat. ch.
980, brought this case, alleging that chapter 980 is unconstitutional as applied to him and
others like him who were committed because of offenses adjudicated under Wisconsin’s
juvenile justice system. (Rudebush was an adult by the time he was committed.) In a September
20, 2016 order, I dismissed the case as barred under Heck v. Humphrey, 512 U.S. 477, 486–87
(1994), and told Rudebush that he could refile it as a petition for writ of habeas corpus.
In May 2017, Rudebush filed a motion for reconsideration of the dismissal that I will
construe as a motion for relief from judgment under Federal Rule of Civil Procedure 60. Rule
60(b) provides for relief from “a final judgment, order, or proceeding” on many grounds,
including mistake and “any other reason that justifies relief.” “[R]elief under Rule 60(b) is
proper only under extraordinary circumstances.” Hill v. Rios, 722 F.3d 937, 938 (7th Cir.
2013).

In his motion, Rudebush states that Heck should not apply to his case. In support he
presents a lengthy quoted passage from Willis v. Palmer, 175 F. Supp. 3d 1081 (N.D. Iowa
2016), a case in which the United States District Court for the Northern District of Iowa
concluded that Heck did not bar a multi-plaintiff case challenging the constitutionality of Iowa’s
programming for the treatment of sex offenders who are civilly committed. Rudebush states
that in his case he seeks “to challenge deep systemic problems in the way the [defendants] treat
juvenile only sex offenders.” Dkt. 8, at 6. But his complaint and motion for reconsideration
make clear that he contends that it is unconstitutional for “juvenile only sex offenders” to be
subject to the same commitment and supervised-release laws as persons who commit sex
offences as adults. This is not, as in Willis, a challenge to the manner in which the sex-offender
programming is executed; it is a challenge to the very fact of his continued confinement or the
nature of the restrictions he faces upon release. Those are habeas-type questions that cannot
be brought in this lawsuit. I will deny his motion for reconsideration.

ORDER
IT IS ORDERED that plaintiff Damien Marcus Rudebush’s motion for reconsideration,
Dkt. 8, is DENIED.
Entered January 17, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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