United States District Court, W.D. Wisconsin
OLTON L. DUMAS, Plaintiff,
VICTORIA L. TUCKER and CHLOE MOORE, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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 ...