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Wilke v. Stublaski

United States District Court, W.D. Wisconsin

November 30, 2016

KEVIN L. WILKE, Plaintiff,
v.
ADAM STUBLASKI, et al ., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         Pro se plaintiff Kevin L. Wilke filed this proposed action under 42 U.S.C. § 1983, purporting to challenge two probation revocation proceedings in Wood County and has been found eligible to proceed in forma pauperis for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b). Because he was incarcerated at the time he filed suit, however, the court is also required by the PLRA to screen Wilke's proposed complaint and dismiss any portion that is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks money damages from a defendant who is immune from such relief. In addressing any pro se litigant's complaint, the court must read the allegations generously, reviewing them under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 521 (1972). Even under this lenient standard, Wilke has not pleaded allegations sufficient to allow him to proceed with any of his claims at this time. The court will, therefore, dismiss several of his claims, but give Wilke the opportunity to clarify the basis of his due process claims against defendant Adam Stublaski.

         ALLEGATIONS OF FACT[1]

         At the time he filed suit, Wilke was confined in the Waushara County Jail. He has since been released and is living in Green Bay, Wisconsin. The defendants in this case are Wood County Probation Officer Adam Stublaski, Wood County Probation Supervisor Matthew Stake, Wisconsin Division of Hearings and Appeals (“DHA”) Administrator Brian Hayes, former DHA Administrator David Schwartz, Marquette County Circuit Judge Wright, Wood County Circuit Judge Potter and Waushara County Circuit Judge Dutcher.

         On February 6, 2002, Wilke was convicted of burglary of a building or dwelling as a habitual offender in Wood County, Case No. 01CF359. The circuit court sentenced him to serve a 12-year term of probation in that case.

         On December 3, 2012, Wilke was charged with refusing to take a test for intoxication after arrest on suspicion of driving while intoxicated in Marquette County, Case No. 12TR3161. Shortly thereafter, on January 14, 2013, Wilke was charged with operating while intoxicated (third offense) in Marquette County, Case No. 13CT2. He was placed in the Marquette County Jail. After posting a bond, in late February 2013, Wilke filed a petition for a writ of habeas corpus with Marquette County Circuit Judge Wright. See Marquette County Case No. 13CV34.

         Without ruling on that petition, Judge Wright transferred Wilke from the Marquette County Jail to Wood County for a revocation hearing. In particular, after Wilke's December 2012 arrest, his probation officer, defendant Adam Stublaski, had moved to revoke his probation in his burglary case, Wood County Case No. 01CF359. The final revocation hearing was postponed until March 2013, “because of a witness for the state.” Wilke wrote to Officer Stublaski to see if he could get out of the Marquette County Jail, so that he could continue working at his house cleaning and repair business. When Stublaski did not respond to Wilke's letter, Wilke wrote to Stublaski's supervisor, defendant Matthew Stake, but received no response. Wilke also wrote to Division of Hearings and Appeals Administrator David Schwartz, complaining about the time limit for revocation, but again received no response. When revocation was denied at the hearing, Wilke remained in jail while Stublaski pursued an appeal. The appeal was ultimately denied and Wilke was released on April 17, 2013, having spent 137 days in jail.

         In May 2013, Wilke was arrested again, and charged with disorderly conduct and criminal damage to property in Brown County Case Number 2013CM630. In January 2014, Wilke was arrested in Marquette County and charged with disorderly conduct in Marquette County Case Number 2014CM20. He was released on cash bond in both cases. A few months later, on April 8, 2014, Wilke was again arrested and placed in custody of the Waushara County Jail. The following day, he was charged in Waushara County Case No. 14CF44 with felony driving or operating a vehicle without consent, possession of burglarious tools, misdemeanor bail jumping and operating while revoked.

         After Wilke was placed in jail in April 2014, in addition to the new charges in Waushara County Case No. 14CF44, he learned that there was a “probation hold” on him, stemming from his February 6, 2002, burglary conviction in Wood County Case No. 01CR359. On April 10 or 11, Probation Officer Stublaski visited Wilke in jail, regarding the probation hold. At that time, Wilke told Stublaski that his term of probation for Case No. 01CR359 was “over.” Stublaski disagreed. A week later, Wilke received “revocation papers” from a different, unidentified probation officer. A revocation hearing was originally set for June 23, 2014, but was delayed by the Division of Hearings and Appeals until August 4, 2014.

         Wilke argues that his 12-year term of probation discharged no later than February 6, 2014. Wilke contends that he wrote to Stublaski on three separate occasions in an effort to determine whether his term of probation had ended. Wilke also wrote to Wisconsin Division of Hearings and Appeals Administrator Brian Hayes, but received no response. Wilke then filed petitions for a writ of habeas corpus with Wood County Judge Potter and Waushara County Circuit Judge Dutcher, but those petitions were denied.

         On July 29, 2014, Wilke learned from a jail officer that the probation hold had been “dropped.” The jail officer contacted Stublaski, who reportedly told her that Wilke's probation hold was dropped because he did not think that Wilke could be revoked. It is not clear when Wilke was released from jail in connection with his April 2014 arrest.

         Since filing suit in September 2014, Wilke was convicted of various offenses in: Wood County Case Number 2013CT268; Marquette County Case Number 2014CM20; Brown County Case Number 2013CM1575; and Waushara County Case Number 2014CF44. Charges were dismissed by the prosecutor's motion in: Marquette County Case Number 2012TR3161 (after being reopened in March 2015); Marquette County Case Number 2013CT2; Brown County Case Number 2013CM630; and Wood County Case Number 2013CT348.

         OPINION

         Wilke raises the following ...


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