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Werner v. Larrabee

United States District Court, E.D. Wisconsin

February 13, 2017

PATRICK JAMES WERNER, Plaintiff,
v.
DEBBIE LARRABEE, Defendant.

          DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 23) AND DENYING AS MOOT PLAINTIFF'S MOTION SEEKING TO FILE ADDITIONAL INTERROGATORIES (DKT. NO. 31)

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff Patrick James Werner, representing himself, is proceeding on due process and ex post facto claims challenging Wis.Stat. §301.48, which requires GPS tracking of certain convicted and civilly committed sex offenders. Dkt. No. 13 at 7-8. The defendants have filed a motion for judgment on the pleadings (which was docketed as a motion to stay discovery and motion to dismiss, dkt. no. 23), and the plaintiff's motion seeking to file additional interrogatories (dkt. no. 31). The court grants the defendant's motion for judgment on the pleadings, and denies as moot the plaintiff's motion for additional interrogatories.

         I. BACKGROUND

         The plaintiff has separate criminal convictions for second-degree sexual assault of a child and child enticement. Dkt. No. 1 at 4. On August 23, 1999, the state court sentenced him in both cases; he received a total sentence of ten years in prison and ten years parole. Id. In 2011, the plaintiff was released on probation and was subject to GPS monitoring under Wis.Stat. §301.48, but his probation ultimately was revoked for violating his rules of community supervision. Id. at 4-6. The plaintiff currently is incarcerated at Oshkosh Correctional Institution, and has a maximum discharge date of February 15, 2023. Id. at 9.

         On April 1, 2016, the defendant filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Dkt. No. 23. The defendant also asked the court to stay discovery pending briefing and resolution of the motion to dismiss. Id. The court granted the motion to stay discovery on April 12, 2016. Dkt. No. 26. The same day, the court received the plaintiff's motion seeking to file additional interrogatories, as well as three depositions upon written questions and three requests for production of documents addressed to non-parties. Dkt. Nos. 31-37.

         In her brief in support of her motion for judgment on the pleadings, the defendant submits that the plaintiff lacks standing to challenge the GPS statute because currently, he is not subject to GPS monitoring. Dkt. No. 24 at 2-4. The defendant also argues that the plaintiff cannot prove any facts that would support his due process and ex post facto claims. Id. at 4-8.

         II. DISCUSSION

         A. Standard-Motion for Judgment on the Pleadings Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Such a motion is evaluated under the same standards that govern a Rule 12(b)(6) motion to dismiss; the court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the non-moving party. See Lodholtz v. York Risk Servs. Grp., 778 F.3d 635, 639 (7th Cir. 2015) (citations omitted). In considering a motion for judgment on the pleadings, the court may rely on the pleadings, documents attached to or referred to in the pleadings, or information subject to judicial notice. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir. 2012) (addressing Fed.R.Civ.P. 12(b)(6)). A court should grant a motion for judgment on the pleadings “only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” Buchanan-Moore v. City of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (quoting Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998)).

         B. Standing

         In order to have standing, the plaintiff must show that he has suffered an “'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, ' not ‘conjectural' or ‘hypothetical.'” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending, ' or there is a ‘substantial risk that the harm will occur.'” Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. at ___, n. 5, 133 S.Ct. 1138, 1147, 1150, n. 5 (2013)).

         The defendant argues that currently, the plaintiff is not being monitored under the statute. She argues that there is no imminent plan to monitor him, and that the possibility of a law applying in the future is not harm sufficiently imminent to create standing. Dkt. No. 24 at 3-4. The plaintiff responds that he is up for parole in 2017, and that his GPS monitoring therefore is imminent. Dkt. No. 27 at 2. The defendant acknowledges that the plaintiff is up for parole in 2017, but she argues that there is no guarantee that the parole board will grant him parole at that time. Dkt. No. 24 at 3. Additionally, the defendant contends that even if the plaintiff is paroled in 2017, he will remain under the supervision and custody of the Wisconsin Department of Corrections (DOC) until his mandatory discharge date in 2023. Id. The State has broad authority to monitor offenders while they are within the custody and supervision of the DOC. See Samson v. California, 547 U.S. 843, 848 (2006). His constitutional challenge, the defendant argues, would be very different if he were challenging the law as a parolee. Dkt. No. 24 at 3.

         At this stage in the proceedings, the court construes all reasonable inferences in favor of the plaintiff. See Lodholtz, 778 at 639. The parties agree that, absent a change in the statute, the plaintiff will be subject to GPS monitoring under §301.48 at some point in the future, whether upon parole in 2017, upon maximum discharge in 2023, or some time in between. That is a “substantial risk that the harm will occur” and a sufficient “allegation of future injury.” Susan B. Anthony List, 134 S.Ct. at 2341. The court finds standing and will consider the defendants' arguments about the plaintiff's substantive claims.

         C. Ex Post Facto Clause Claim

         “A statute is an ex post facto law only if it imposes punishment.” Belleau v. Wall, 811 F.3d 929, 937 (7th Cir. 2016). In Belleau, the Seventh Circuit determined that §301.48 is prevention, not punishment, which means that the statute does not violate the ex post facto clause. Id. The court analogized GPS monitoring under ยง301.48 to being stopped by a police officer on the highway and asked to show one's ...


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