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Wenzel v. Christopherson

United States District Court, E.D. Wisconsin

May 8, 2017

GARY L. WENZEL, Plaintiff,


          William C. Griesbach, Chief Judge.

         Plaintiff Gary Wenzel filed this pro se civil rights suit under 42 U.S.C. § 1983 against his former parole agent and the agent's supervisor. Wenzel claims that the defendants' decision to pursue revocation of his supervision was in retaliation for a lawsuit he filed against the Oconto County Jail and staff in 2014. Currently before the court is the defendants' motion for summary judgment. For the following reasons, the defendants' motion will be granted and the case will be dismissed.


         Wenzel is currently an inmate at Oshkosh Correctional Institution after having his probation and extended supervision from several previous convictions revoked. Wenzel has been on supervision or in prison since 1995. At the time the revocation proceedings that are the subject of the instant action commenced, Wenzel was on supervision for two separate cases. In Shawano County Case No. 94-CF-7, Wenzel was convicted of theft by fraud and sentenced to ten years in prison pursuant to a judgment of conviction entered on October 10, 1995. (ECF No. 25-1 at 30-31.) The prison sentence was stayed, however, and Wenzel was placed on probation for a term of ten years that was ordered to run consecutively to sentences imposed in two other cases, the last of which discharged on May 6, 2011. (ECF No. 25-1 at 23.) In Oconto Case No. 02-CF-29, Wenzel was convicted of three counts of theft in a business setting and two counts of theft by contractor and sentenced to a total term of eleven years with three years of confinement and eight years of extended supervision, the Wisconsin equivalent of supervised release. (ECF No. 25-1 at 22.) Judgment in that case was entered on June 11, 2004. (ECF No. 25-1 at 36-37.) The Oconto County convictions did not result in the revocation of Wenzel's probation in the Shawano County case apparently because his term of probation had not yet commenced at the time they occurred. The same was true when Wenzel's supervision in the Oconto County case was revoked in 2008 for consuming alcohol, physically assaulting his girlfriend, and engaging in contract work in violation of the court-imposed conditions. (Defs.' Proposed Findings of Fact (DPFOF) ¶ 8, ECF No. 23.) Although Wenzel's supervision in the Oconto County case was again revoked in 2014 after his term of probation had commenced, Peterson and Christopherson elected not to seek revocation of his probation in Shawano Case No. 94-CF-7 at that time because they concluded the violations were not so serious as to warrant imposition of the ten-year sentence that would have resulted. (Id. ¶ 45.)

         Upon his release from prison after the 2014 revocation, Wenzel lived with his sister and brother-in-law in Oconto County. (Id. ¶ 11.) Defendant Matthew Peterson[1] was Wenzel's parole agent from March 26, 2014 until January 25, 2017, and Defendant Bobbi Christopherson was Peterson's supervisor. (Id. ¶¶ 5-6.) Before becoming a Corrections Field Supervisor in 2007, Christopherson worked as a Corrections Officer for the Oconto County Jail from 1997 to 2002. (Id. ¶ 65.) Wenzel later learned that she had worked with several of the Oconto County employees he sued in a 2014 lawsuit against the jail.

         On March 7, 2016, the Green Bay Police Department notified Peterson that it was investigating Wenzel after receiving a complaint from Shawn Trepanier and Summer DeKeyser that Wenzel took $200 from them. (Id. ¶¶ 12-13.) Trepanier and DeKeyser claimed Wenzel told them he was a broker for several landlords, and talked them into giving him $200 in exchange for an apartment key. (Id. ¶ 13.) After they paid him, however, Wenzel claimed he needed to retrieve the key. Trepanier and DeKeyser stated that Wenzel never returned with the key or their money. (Id.) Wenzel asserts he never stole their money. Instead, he claims he combined the $200 with his own money to rent them a home. (Pl.'s Resp. to DPFOF ¶ 13, ECF No. 27.) In any event, after receiving the voicemail from the police department, Peterson attempted to contact Wenzel about the incident numerous times throughout the week, but Wenzel's listed telephone number was not accepting calls. (DPFOF ¶¶ 14-15.) On March 15, 2016, Peterson contacted Wenzel's brother-in-law who stated Wenzel had not lived with them for several weeks and did not know where he was currently residing. (Id. ¶ 17.) On April 11, 2016, Ron Hayes notified the Oconto Corrections office that Wenzel had stolen his trailer. (Id. ¶ 18.) Between April 11 and April 14, 2016, Wenzel sold another trailer belonging to Corevac Inc., without its consent, to Ralph's Auto Salvage in Oconto, Wisconsin. During the transaction, Wenzel removed a water pump from the trailer. (Id. ¶¶ 38-39.) Peterson placed Wenzel in Absconder Status on April 26, 2016. (Id. ¶ 19.)

         On May 2, 2016, the Green Bay Police Department notified Peterson that Wenzel had been arrested and was detained at the Brown County Jail. (Id. ¶ 20.) Police had arrested Wenzel after he fled a residence to which police had been dispatched. (Id. ¶¶ 21-25.) Wenzel attempted to evade arrest by swimming down the East River in Green Bay, Wisconsin. After retrieving him from the river, police took him to the hospital for treatment for hypothermia, where Wenzel continued to obstruct officers by giving them false names. He eventually provided his real name and was transported to the Brown County Jail upon discharge from the hospital. (Id. ¶¶ 26-28.)

         At the jail, Wenzel gave a signed statement regarding the events occurring from March 7 to May 2, 2016. He admitted he had taken $200 from DeKeyser to find her an apartment but denied acting as a broker. He stated he did not report to his parole agent as ordered because he was using cocaine on a daily basis and had stayed in different residences around the area, usually with other drug users. Wenzel admitted borrowing Hayes' trailer but claimed someone else had stolen it. He did not know who took it or where it was. Wenzel admitted he had smoked crack-cocaine the night of his arrest and did not remember resisting or obstructing officers. His urinalysis at the jail tested positive for cocaine and negative for every other drug. (Id. ¶¶ 30-32.)

         On May 6, 2016, the defendants decided to pursue revocation of Wenzel's supervised release in Case No. 02-CF-29 and probation in Case No. 94-CF-7. In Case No. 02-CF-29, Wenzel had just over five years available for reconfinement. As such, the defendants recommended one year, six months, and eight days of reconfinement for that case. Because a ten year sentence had already been imposed and stayed at the time of sentencing in Case No. 94-CF-7, no recommendation was necessary. (Id. ¶¶ 51-52.) Upon revocation in that case, the ten-year sentence automatically went into effect.

         An administrative law judge (ALJ) heard the matter on August 25, 2016 and concluded Wenzel violated the conditions of his supervised release by (1) misrepresenting himself as a rental broker; (2) taking $200 from Trepanier and DeKeyser; (3) absconding from supervision; (4) changing his residence without prior approval; (5) failing to return Hayes' trailer; (6) taking Corevac Inc.'s trailer without its consent; (7) selling Corevac Inc.'s trailer without its consent; (8) taking Corevac Inc.'s water pump without its consent; (9) fleeing and resisting arrest from the Green Bay Police Department; (10) obstructing an officer by providing two false names after arrest; and (11) possessing and consuming cocaine. (Id. ¶ 56.) The ALJ revoked Wenzel's probation in Case No. 94-CF-7, thereby activating the ten-year imposed and stayed sentence, and revoked his extended supervision in Case No. 02-CF-29. The ALJ adopted the agents' sentencing recommendation in that case and ordered Wenzel reincarcerated. (Id. ¶ 57.) The revocation was upheld on appeal. (Id. ¶ 58.)

         Wenzel commenced this action on September 14, 2016. He claims that because Christopherson and one of the Oconto Jail employees he sued in 2014 were close friends, Christopherson and Peterson increased their recommendation from one year, six months, and eight days to eleven years and six months at his revocation hearing. Liberally construing his complaint, Wenzel was allowed to proceed on a claim that the defendants retaliated against him for exercising his constitutional rights.


         Summary judgment is appropriate when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly entered against a party “who fails to make a showing sufficient to establish the ...

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