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Singh v. Marks

United States District Court, W.D. Wisconsin

September 28, 2016

AMAN SINGH, Plaintiff,
v.
K. MARKS, CATHY JESS, PAUL KEMPER, MS. BELLIS, MS. SEITZ, EMILY NELSON, KATHY NAGLE, PAULA DECKER, THOMAS WEIGAND, TERESA WEIGAND, JEREMY GLOUDEMANS, TAD LEBRECK, JOHN BETT, TONY STREVELER, CAROL BRIONES, KITTY ANDERSON, SALLY TESS, SHIRLEY STORANDT, MARK HEISE, DANIELLE LACOST and DENNIS BASKIN, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Aman Singh, a resident of Greenfield, Wisconsin, brings claims that various state officials unconstitutionally deprived him of opportunities to participate in the Earned Release Program while he was incarcerated, that they rescinded “positive adjustment time” that he had earned, and that they denied him access to records that would have proven his ex post facto claims about positive adjustment time. Defendants filed a joint motion to dismiss and motion for judgment on the pleadings.[1] For reasons stated below, I will deny this motion. The parties have also filed motions to amend the remaining schedule, which I will grant.

         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss all or part of an action for “failure to state a claim upon which relief can be granted.” Motions for judgment on the pleadings under Rule 12(c) are reviewed under the same standard as motions to dismiss under Rule 12(b). N. Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).

         As I discussed in this court's screening orders, Dkt. 6 and 46, Singh is proceeding on the following claims:

• First Amendment retaliation claims and Fourteenth Amendment equal protection claims against defendants Cathy Jess, Sara Bellis, Kimberly Marks, Paul Kemper, Paula Decker, Thomas Weigand, Teresa Weigand, Jeremy Gloudemans, Tad LeBreck, and John Bett for refusing to place him in the Earned Release Program because he was appealing his conviction.
• Ex post facto claims against defendants Jess, Tony Streveler, Carol Briones, Kitty Anderson, Sally Tess, Shirley Storandt, Mark Heise, Danielle Lacost, Dennis Baskin, Emily Nelson, Debra Seitz, Kemper, and Kathy Nagle for eliminating his “positive adjustment time.”
• An access to the courts claim against defendant Seitz for denying him access to records showing that the changes to state law prolonged his confinement.

         Defendants seek dismissal of all of these claims for various reasons discussed below.

         A. Younger abstention and related issues

         Defendants contend that the case should be dismissed under the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). “The Younger doctrine requires federal courts to abstain from taking jurisdiction over federal constitutional claims that seek to interfere with or interrupt [certain] ongoing state proceedings.” SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010) (citing FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007)). Defendants note that Singh filed his complaint in this action while his state court habeas case about the constitutionality of the state's “positive adjustment time” (PAT) procedures was still pending. In January 2014, the Wisconsin Court of Appeals ruled partially in Singh's favor, concluding that the retroactive application of a statute repealing PAT eligibility violated the ex post facto clause. State ex rel. Singh v. Kemper, 2014 WI.App. 43, ¶ 19, 353 Wis.2d 520, 846 N.W.2d 820. But it rejected Singh's challenge to a Wisconsin statute, § 973.198, altering the process by which PAT-eligible inmates seek early release.

         At the time Singh filed his complaint and defendants filed their motion to dismiss, the case was pending before the Wisconsin Supreme Court. But the state-court proceedings have now concluded: in July 2016, the Wisconsin Supreme Court issued its decision affirming the court of appeals' decision in part and reversing it in part. State ex rel. Singh v. Kemper, 2016 WI 67, 883 N.W.2d 86. The court affirmed the court of appeals' ruling that the retroactive repeal of PAT violated the ex post facto clause with regard to one of Singh's convictions, and reversed the court of appeals by concluding that § 973.198 also violated the ex post facto clause because it delayed inmates' release dates by forcing them to wait until the first day they were eligible for early release to petition the court for release. Id., ¶¶ 1 n.1, 48, 68. The case was not remanded for further proceedings, see id., ¶ 1 n.1 (“there are two justices who would vote to remand this case to the circuit court for a determination of whether Singh is entitled to relief . . . . However, a majority of the court would not remand”). So at present there is no reason to think that Younger abstention would apply here because the state courts have completed their review of Singh's habeas petition. Therefore, I will deny defendants' motion to dismiss based on their abstention argument.

         Defendants raise two related arguments, both of which I will reject. They first contend that Singh's claims are not proper § 1983 claims because he truly challenges the length of his custody. I disagree with this characterization because Singh is seeking damages for his claims regarding the Earned Release Program and PAT. What defendants term as “double-dipping, ” Dkt. 37, at 8, is necessary for a party bringing § 1983 claims: those cannot be brought in his underlying habeas suit. State v. Minniecheske, 223 Wis.2d 493, 498, 590 N.W.2d 17, 19 (Ct. App. 1998) (“A petition for a writ of habeas corpus is designed to challenge the taking of a person's liberty, not to obtain a money judgment.”); see also Singh v. Kemper, 2016 WI 67, ¶ 183 (Ziegler, J., concurring in part and dissenting in part) (“To the extent that further relief is warranted, Singh indeed has other adequate remedies at his disposal. For example, Singh can . . . bring a civil suit for monetary damages, if due.”).

         Defendants also contend that Singh's claims against defendant Warden Kemper must be dismissed under the doctrine of claim preclusion because he is the respondent in the habeas action. But this argument makes little sense regarding Singh's PAT ex post facto claim because he prevailed in the Wisconsin Supreme Court on at least part of that claim. Defendants also argue that claim preclusion bars Singh's First Amendment and equal protection claims regarding his participation in the Earned Release Program because he could have brought those claims against Kemper in his habeas action. Wisconsin has adopted the “transactional approach” to determine whether there is an identity of claims for purposes of claim preclusion analysis, meaning that “all claims arising out of one transaction or factual situation are treated as being part of a single cause of action.” A.B.C.G. Enters., Inc. v. First Bank Se., N.A., 184 Wis.2d 465, 480-81, 515 N.W.2d 904, 910 (1994) (internal quotation omitted).

         But even assuming that claim preclusion could apply to § 1983 claims in this fashion following habeas litigation, defendants do not explain why the Earned Release Program claims rely on the same “transaction or factual situation” as Singh's PAT claims. From the complaint, those appear to be two separate programs with two separate sets of facts supporting alleged constitutional violations. The Earned Release Program is a program for certain offenders who successfully complete a substance abuse treatment program, see Wis. Stat. § 302.05(3), whereas the PAT program provided inmates the opportunity to earn a day of PAT for every two or three years of confinement, see Wis. Stat. ยงยง 302.113(2)(b), 304.06(1)(bg)1. (2009-10). Nor do defendants explain why it would have been appropriate for Singh to bring habeas claims regarding the Earned Release Program; that is, they do not explain how their alleged discrimination ...


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