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Dumas v. Tucker

United States District Court, W.D. Wisconsin

January 27, 2017

OLTON L. DUMAS, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se plaintiff Olton Dumas, a prisoner incarcerated at the Kenosha Correctional Center, brings this action against defendants Victoria Tucker and Chloe Moore, agents for the Wisconsin Department of Corrections (DOC)-Division of Community Corrections. Dumas contends that defendants violated his due process rights by depriving him of a preliminary hearing before revoking his extended supervision. Dumas does not challenge his conviction or his sentence but seeks only monetary damages.

         Both sides move for summary judgment. The decisive issue here is whether Dumas admitted to violations of the conditions of his extended supervision. If he admitted the violations, then he was not entitled to a preliminary hearing. Defendants have adduced a form, apparently signed and initialed on each page by Dumas, which admits the violations. Dumas contends that the form is not a valid admission for several reasons. None of these reasons are persuasive, and Dumas has failed to raise a genuine dispute of fact that he admitted at least one violation of his supervision.


         The following facts are undisputed unless otherwise noted.

         On April 30, 2013, Dumas began a term of extended supervision. During the time relevant to this case, his probation and parole agent was defendant Chloe Moore. The many terms of his extended supervision included that he attend scheduled and unscheduled meetings with his agent and that he not possess or consume alcohol or illicit drugs. Dkt. 27-1, 79-80.

         In early March 2015, Dumas was detained briefly on a probation hold. Shortly after he was released, about March 6, Moore instructed Dumas to report to her office. Dumas contends that he was to report on March 9, 2015, and when he showed up at Moore's office, she was not there. Moore contends that the meeting was actually scheduled for March 10. Because he had failed to make contact with her, Moore issued a warrant for Dumas' arrest on March 13, 2015. There is no dispute that Dumas failed to actually contact Moore between March 6 and May 3, 2015. Dkt. 36, ¶ 21.

         On May 3, 2015, a stabbing took place at Dumas' residence; the victim identified Dumas as the person who stabbed him. Dumas was arrested and detained in the Rock County jail in Janesville on charges of possession of cocaine and attempted homicide. Defendant Victoria Tucker was a probation and parole officer whose duties included serving as Rock County jail liaison. Moore, whose office was in Beloit, asked Tucker to interview Dumas in connection with the potential revocation of his extended supervision.

         Tucker interviewed Dumas and documented his responses on a form DOC-1305. The form indicates that Dumas was informed of his rights concerning his statement and that he consented to Tucker's writing out Dumas's statement for him. Dumas' DOC-1305 form includes the following:

I have not reported since 03/06/15. I was using cocaine, alcohol, and anything else I could find to ease the pain. I was having a lot of psychological stuff going on in my head. On 05/03/15, I had about four or five bags of cocaine on me when I got arrested. It was for personal use. I had a cocaine pipe on me as well.

Dkt. 36, ¶ 47. The parties agree that this is not a verbatim transcription of Dumas's words, but Tucker intended to accurately paraphrase his statement. Tucker offered to read Dumas's responses aloud but Dumas declined this offer. Dkt. 36, ¶¶ 51-53. Tucker asked Dumas to read the statement, confirm that it was accurate, and sign the form. The form is signed, apparently indicating that Dumas reviewed the statement and accepted it as accurate. Dumas now contends that he did not sign the form, although he does not dispute that he initialed each page.

         On May 12, 2015, Tucker served Dumas with papers related to his revocation proceeding. The papers indicated that there would be no preliminary hearing because Dumas had admitted the violations in his statement. Dumas raised no objection to his statement until July 22, 2015, when he filed a petition to exclude the statement. Dumas contended in his petition that Tucker had paraphrased and restructured his statement to make it seem that he had admitted to a recent drug use, whereas he was really talking about problems he had in 2013 or 2014. Dkt. 27-5, at 5. Dumas did not, however, deny his drug use or his failure to report.

         Dumas had a final revocation hearing on August 10, 2015. Dumas was represented by counsel. Tucker was present and available to answer questions about Dumas's statement, but Dumas's counsel did not call her to testify. The administrative law judge found that Dumas violated the terms of extended supervision, Dumas's extended supervision was revoked, and he was sentenced to two years, ten months, and nine days of incarceration. Dkt. 27-6, at 3.

         He filed this suit under 42 U.S.C. § 1983. After screening his pleading, I allowed Dumas to proceed on his claim of a due ...

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