Thomas, Sylvester v. Circuit Court Of Dane County et al

Filing 7

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 5 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps) Modified on 4/13/2017 (jef).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - SYLVESTER THOMAS,
ORDER
Petitioner,
17-cv-55-bbc
v.
CIRCUIT COURT OF DANE COUNTY and
THE HONORABLE RHONDA L. LANFORD,
Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Petitioner Sylvester Thomas has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254 in which he challenges his civil commitment at Sand Ridge Secure Treatment
Center, which is in Mauston, Wisconsin. Petitioner says that he is entitled to “immediate
release” from custody because he is not receiving “prompt and adequate treatment,” as
required by Wis. Stat. § 51.61. Petitioner has paid the $5 filing fee, so his petition is ready
for screening under Rule 4 of the Rules Governing 2254 Petitions, which requires the court
to dismiss the petition if it plainly appears that petitioner is not entitled to relief.
I am denying the petition. Even if petitioner’s allegations are true, they would not
entitle him to release from custody. If officials are subjecting a person in custody to unlawful
conditions of confinement, the proper remedy is to correct the unlawful conditions, not to
release the person in custody. Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005).
When a person in custody brings a habeas petition that should have been brought as
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a civil action, this court’s general practice is to give the person an opportunity to decide
whether he wishes to convert the action. E.g., Martin v. Holinka, No. 10-CV-391-SLC,
2011 WL 382913, at *2 (W.D. Wis. Feb. 3, 2011). In this case, it would be pointless to
give petitioner that option, for two reasons.
First, petitioner was sanctioned by the Court of Appeals of the Seventh Circuit for
repeatedly filing frivolous lawsuits and appeals. Thomas v. Van Hollen, No. 10-3144 (7th
Cir. Nov. 9, 2010). Under the terms of the order, petitioner is barred from filing civil
actions until he pays the $1000 fine imposed or he otherwise convinces the court of appeals
to lift the sanction. Id. (The type of sanction at issue does not apply to habeas petitions.
Support Systems International, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).) Because
petitioner has not paid the fine and the court of appeals has not lifted the sanction, I cannot
consider any civil action that petitioner files in this court.
Second, petitioner’s claim is that he is not receiving treatment to which he is entitled
under Wis. Stat. § 51.61. However, a federal court cannot consider a lawsuit raising only
state law claims unless the plaintiff and defendants are citizens of different states, 28 U.S.C.
§ 1332, something that petitioner does not allege.

Although petitioner cites various

constitutional provisions in his petition, he does not identify any particular way in which
those rights have been violated.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to a petitioner. To
obtain a certificate of appealability, the applicant must make a “substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). This means that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”

Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Although
the rule allows a court to ask the parties to submit arguments on whether a certificate should
issue, it is not necessary to do so in this case because the question is not a close one. For the
reasons stated, reasonable jurists would not debate the decision that the petition should be
denied. Therefore, no certificate of appealability will issue.

ORDER
IT IS ORDERED that
1. The petition for a writ of habeas corpus filed by Sylvester Thomas is DENIED.
2. Petitioner is DENIED a certificate of appealability. Petitioner may seek a certificate
from the court of appeals under Fed. R. App. P. 22.
Entered this 22d day of March, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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