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Weiss v. Watters

United States District Court, E.D. Wisconsin

February 22, 2016

MARK A. WEISS, Plaintiff,
v.
STEVE WATTERS, Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 44), GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 46), DENYING AS MOOT PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC. 58), AND DISMISSING CASE

C.N. CLEVERT, JR. U.S. District Judge.

The pro se plaintiff, Mark A. Weiss, is a Wisconsin state prisoner. He filed this lawsuit under 42 U.S.C. § 1983 alleging that defendant Steve Watters detained him past the date for his scheduled release from the Mendota Mental Health Institute. On July 28, 2015, the court granted defendant’s request for a stay of deadlines, to afford him an opportunity to file a summary judgment motion on statute of limitation grounds. (Doc. 43.) That motion was filed and for the reasons explained in this order, defendant’s motion for summary judgment will be granted and this action will be dismissed.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.

A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

FACTS[1]

In 1995, plaintiff was found not guilty by reason of mental disease or defect of three offenses, including second degree sexual assault. (Doc. 48 ¶ 1.) The Kenosha County Circuit Court in State v. Mark A. Weiss, 95CF178, entered an order on October 13, 1995, committing plaintiff to the Wisconsin Department of Health and Social Services for institutional care for no more than two-thirds of the maximum term of imprisonment for the three offenses as authorized by the Wisconsin statutes. (Id. ¶ 2.)

From September 26, 1995, until he was conditionally released on January 31, 2001, plaintiff was a patient at Mendota Mental Health Institute (“Mendota”). (Id. ¶ 3.) Plaintiff was readmitted to Mendota on April 3, 2001, and discharged again on November 7, 2001. (Id. ¶ 4.) He maintains that he should have been released from Mendota on August 22, 1999. (Id.¶ 5.)

Plaintiff was re-admitted to Mendota pursuant to Chapter 51 of the Wisconsin Statutes during periods covering the following dates: May 4, 2002-May 9, 2002; May 20, 2002-June 13, 2002; January 23, 2003-February 26, 2003; March 22, 2003-May 28, 2003; March 5, 2004-April 2, 2004; August 10, 2005-August 12, 2005; and September 20, 2006-November 6, 2006. (Id. ¶ 6.)

Plaintiff was admitted to Mendota for a “Treatment to Competency” stay from May 15, 2008 until August 12, 2008. (Id. ΒΆ 7.) Plaintiff has not been admitted to ...


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