Thomas, Julian v. Wisconsin Department of Corrections et al
ORDER dismissing this case without prejudice for lack of subject matter jurisdiction. Signed by District Judge William M. Conley on 9/12/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JULIAN GRADY THOMAS
OPINION & ORDER
MICHAEL ELLESTAD, MATT ALLORD,
DEBBIE LARRABEE, and LANCE WIERSMA
Pro se plaintiff Julian Grady Thomas brings this proposed civil action alleging that
defendants — all employees of the Wisconsin Department of Corrections — violated his
constitutional rights by authorizing and conducting a warrantless search of his home. As
Thomas was incarcerated at the time he filed this suit, the court must screen his complaint
and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from an immune defendant. 28 U.S.C.
§ 1915A. Because Thomas is a pro se litigant, the court holds him to “a less stringent
standard” in crafting pleadings. Haines v. Kerner, 404 U.S. 519, 521 (1972). Even so,
because Thomas’s allegations are fully encapsulated by an ongoing criminal matter, the
court must dismiss his complaint for lack of subject matter jurisdiction.
ALLEGATIONS OF FACT1
Plaintiff Julian Thomas is a resident of the State of Wisconsin. Defendant Michael
Ellestad works for the Wisconsin Department of Corrections, and he was Thomas’s
probation officer at all times relevant to this case.
Defendants Allord, Larrabee and
Wiersma are Ellestad’s supervisors at the Department of Corrections.
On September 3, 2015, Thomas was pulled over by police officers of the City of
Madison for what he alleges were “bogus plates.” The police officers contacted Agent
Ellestad, who instructed them to take Thomas into custody.
Ellestad then allegedly recruited several colleagues to join him in a search of
Thomas’s residence, with the goal of finding evidence relating to an ongoing fraud
investigation by the McFarland police. That same day, the probation officers entered
Thomas’s house through an unlocked window, opened the front door, and proceeded to
search the house. Based on evidence collected from that search, Thomas was charged with
fraud and prosecuted in Dane County Court, Case No. 15CF2111.
defendants – Wiersma, Larrabee and Allord – all either authorized or later praised Ellestad’s
On March 24, 2017, Judge Reynolds granted Thomas’s motion to suppress the
evidence gained through the September 3 warrantless search. The State of Wisconsin is
currently appealing that decision to the Wisconsin Court of Appeals in App. No. 17AP621.
While the underlying prosecution has not been stayed, it appears that the trial court is
waiting to schedule a trial until the state’s appeal is resolved.
The court accepts all allegations in plaintiff’s complaint as true.
Thomas claims that defendant’s Ellestad’s warrantless search of his home violated
his Fourth Amendment right to be free from unreasonable searches and seizures. Even
though Thomas’s claim may have traction, however, this court must decline to exercise
jurisdiction over it while Thomas’s criminal case is still pending in Wisconsin state court.
Under an abstention doctrine articulated in Younger v. Harris, 301 U.S. 37 (1971), federal
district courts must abstain from hearing or exercising jurisdiction over cases that seek to
enjoin or interfere with state criminal proceedings. This doctrine comes from traditional
principles of equity, comity and federalism, and it is usually invoked when (1) related state
judicial proceedings are pending and (2) the federal case has not been active for very long.
Ewell v. Toney, 853 F.3d 911, 916 (7th Cir. 2017).
Here, Thomas’s state criminal case predates this federal action by years. More
importantly, that state proceeding concerns the same subject matter and is still ongoing.
Indeed, the State of Wisconsin is appealing the trial court judge’s decision granting his
motion to suppress evidence arising out of the same search. Given that the claims Thomas
is seeking to proceed upon involve only individuals and facts related to that search, this
court cannot evaluate its validity without interfering in that state criminal proceeding.
Once the criminal proceeding has been completed, this court may be able to exercise
jurisdiction over Thomas’s claims pursuant to 42 U.S.C. § 1983. At this juncture, however,
it must abstain.
IT IS ORDERED that this case is DISMISSED without prejudice for lack of subject
Entered this 12th day of September, 2017.
BY THE COURT:
WILLIAM M. CONLEY
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