United States District Court, E.D. Wisconsin
MARK A. WEISS, Plaintiff,
RUTH SPIELVOGEL-DONALDS, LAURIE KUHN, JOHN LANGDON, MARK KAUTZMANN, and MATTHEW KANGAS, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE
Mark A. Weiss (“Weiss”), a prisoner, brings this
action pursuant to 42 U.S.C. § 1983 challenging the
conditions imposed on him in December 2009 as part of the
community supervision portion of a state criminal sentence.
At the core of Weiss' complaint is his disagreement with
the manner in which defendant parole agents Ruth
Spielvogel-Donalds (“Spielvogel-Donalds”), Laurie
Kuhn (“Kuhn”), John Langdon
(“Langdon”), and Mark Kautzmann
(“Kautzmann”) (collectively, the “state
defendants”), and defendant social worker Matthew
Kangas (“Kangas”), applied the conditions of
community supervision to him; he claims they did so
unconstitutionally. Weiss also alleges that certain of the
state defendants acted unconstitutionally when they caused
his community supervision to be revoked. The state defendants
filed a motion for summary judgment on December 30, 2016.
(Docket #40). One the same day, Kangas, represented by
separate counsel, filed a motion for judgment on the
pleadings and, in the alternative, a motion for summary
judgment. (Docket #47). Weiss filed a timely response on
January 20, 2017, though it is not clear to which motion
Weiss intended to respond. (Docket #53). The state defendants
and Kangas filed their replies on February 6 and 7,
respectively. (Docket #54, #55). Weiss then filed a second,
untimely, response brief and affidavit on March 13,
2017. (Docket #57). The motions are fully
briefed and, for the reasons stated below, the Court will
grant both Kangas' and the state defendants' motions
for summary judgment.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh
the evidence presented or determine credibility of witnesses;
the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit
Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party
opposing summary judgment “need not match the movant
witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of
material fact.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
Plaintiff's Failure to Dispute the Material
relevant facts are undisputed because Weiss failed to dispute
them. In the Court's scheduling order, entered August 26,
2016, Weiss was warned about the requirements for opposing a
motion for summary judgment. (Docket #29 at 1-2).
Accompanying that order were copies of Federal Rule of Civil
Procedure 56 and Civil Local Rule 56, both of which describe
in detail the form and contents of a proper summary judgment
state defendants' motion for summary judgment, they too
warned Weiss about the requirements for his response as set
forth in Federal and Local Rules 56. (Docket #40). He was
provided with additional copies of those Rules along with the
state defendants' motion. (Docket #40-1). In connection
with their motion, the state defendants filed a supporting
statement of material facts that complied with the applicable
procedural rules. (Docket #42). It contained short, numbered
paragraphs concisely stating those facts which the defendants
proposed to be beyond dispute, with supporting citations to
the attached evidentiary materials. See Id.
Defendant Kangas also filed, in connection with his motion
for summary judgment, a supporting statement of material
facts that complied with the applicable procedural rules.
(Docket #50). It, too, contained short, numbered paragraphs
concisely stating those facts which Kangas proposed to be
beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
submitted a six-page “memorandum of law” in
response, though it is unclear whose motion his submission is
in response to. (Docket #53). In his submission, Weiss makes
largely incoherent arguments about immunity, discrimination,
ex-post facto laws, double jeopardy, and due process that
were not part of his complaint. Id. Very little of
Weiss' submission appears to be relevant to the case at
hand. Further, it is not sworn and is not accompanied by any
documents or other evidence. Weiss' response does not
attempt to address the defendants' statements of fact.
then filed an untimely second “memorandum of law,
” twenty pages in length, which sets out in barely
comprehensible prose various facts and legal theories that do
not relate in a meaningful way to the claims in his
complaint. (Docket #57). This second memorandum includes a
“verification” that Weiss “declare[s] that
this motion of consolidations, and rebuttals to refute the
esstopple [sic] of these defendants unclean hands who ripped
me off and cheated me, is true and completely correct under
penality [sic] of perjury 28 U.S.C. pursuant 1746.”
Id. at 20. Even if the Court were to overlook the
untimeliness of Weiss' second response, and Weiss'
disobedience of the rule allowing only one brief in response
to a motion for summary judgment, the Court nonetheless finds
this second memorandum insufficient to contest the
defendants' proposed facts. Weiss has not directed the
Court to the facts he disputes, and he has not provided the
Court with evidence supporting those disputes or his own
being twice warned of the strictures of summary judgment
procedure, Weiss ignored those rules by failing to properly
dispute the defendants' proffered facts with citations to
relevant, admissible evidence. Smith v. Lamz, 321
F.3d 680, 683 (7th Cir. 2003). Though the Court is required
to liberally construe a pro se plaintiff's
filings, it cannot act as his lawyer, and it cannot delve
through the record to find favorable evidence for him. Thus,
the Court will, unless otherwise stated, deem the
defendants' facts undisputed for purposes of deciding
their motions for summary judgment. See Fed. R. Civ.
P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker,
210 F. App'x 513, 515 (7th Cir. 2006) (noting that
district courts have discretion to enforce procedural rules
against pro se litigants).
Relevant Material Facts
1995, Weiss was found not guilty by reason of insanity of the
second-degree sexual assault of his mother. This conviction
required Weiss to register as a sex offender. After his
release, Weiss was convicted of stalking in 2008, for which
he served a term of imprisonment. He was released to
community supervision on December 15, 2009. Upon his release,
Weiss' assigned parole agent Laurie Kuhn
(“Kuhn”) temporarily placed Weiss at Columbus
House, a halfway house for offenders released from prison. He
spent approximately fifty days at Columbus House before
obtaining his own residence in February 2010.
of the conditions of his release on community supervision,
Weiss signed and agreed to be bound by two sets of rules: the
standard community rules of supervision and the sex offender
rules. The rules required Weiss to participate in sex
offender treatment, including group therapy. During a
treatment session in February 2010, Weiss refused to admit
his offense in violation of his rules and the expectations of
the treatment provider and was removed from the treatment
session. The social worker acting as the facilitator for
Weiss' treatment group, Kangas, recorded the incident in
his attendance log for that day. Weiss was placed into
custody in county jail, at the direction of Weiss' new
parole agent, Langdon, and possibly Spielvogel-Donalds as
Langdon's supervisor (the state defendants' proposed
facts are not clear on this point), for violating the
conditions of his community supervision. Two days later,
Weiss was released when he signed a written statement
admitting his offense and agreeing to cooperate with
treatment going forward.
February 2010, Langdon, and Spielvogel-Donalds as his
supervisor, put a no contact order in place between Weiss and
an older woman he identified as his girlfriend, Maria
Scozzoro (“Scozzoro”). Langdon and Kuhn had
spoken with Scozzoro and both were concerned that Weiss was
forming an unhealthy attachment to a vulnerable older woman
that might impede his continued treatment and rehabilitation.
Scozzoro had inquired about pursuing a sexual relationship
with Weiss, despite being twenty years his senior, and
Langdon was concerned that Scozzoro resembled Weiss'
prior victim in age.
March 24, 2011, Langdon received a report from Weiss'
neighbor, a young woman, that Weiss had exposed himself to
her and encouraged her to perform oral sex on him when she
asked to borrow a cigarette. The neighbor also reported that
Weiss had attempted to force his way into her apartment.
Langdon referred the matter to the police and then, after
consulting with Spielvogel-Donalds, pursued revocation of
Weiss' community supervision. Langdon completed the
appropriate paperwork and participated in the preliminary and
final revocation hearings, where Weiss had representation.
administrative law judge presiding over the revocation
proceeding declined to revoke Weiss' parole. Weiss was
then released back into the community, having received
custody credit for his time in jail, and placed on electronic
monitoring. Spielvogel-Donalds assigned parole agent
Kautzmann to replace Langdon as Weiss' agent. Weiss
signed another copy of the rules of community supervision and
the standard sex offender rules with Kautzmann on August 1,
October 2011, Kautzmann had Weiss taken into custody after he
learned that Weiss had violated the conditions of the
electronic monitoring program, had left Kenosha County
without permission, and had engaged in stalking behavior.
Kautzmann, in consultation with Spielvogel-Donalds, elected
to pursue revocation. Weiss admitted to numerous violations
in his own written statement. Following a hearing, an
administrative law judge revoked Weiss' supervision and
he was sent to prison.
February 24, 2016, Weiss filed his complaint in this case,
challenging several conditions of his 2009-'11 community
supervision, as well as the decisions by the defendants to
pursue revocation on the two occasions described above.
(Docket #1). Specifically, Weiss takes issue with the
following: (i) being required to register as a sex offender;
(ii) being required to attend a sex offender treatment group;
(iii) being required to wear an ankle monitor; (iv) being
placed in a halfway house for the first month of his
community supervision, where he claims to have been under
house arrest; (v) the “arbitrary” decision of
Spielvogel-Donalds and Langdon to seek a no-contact order
between Weiss and Scozzoro; (vi) the decision by
Spielvogel-Donalds and Langdon to have him “locked
up” because he “really didn't want to talk
about” his sex offenses with Kangas during a treatment
session; (vii) having his job at Wendy's “taken . .
. away” from him by Langdon, Spielvogel-Donalds, and
Kautzmann; (viii) spending time in jail during the pendency
of revocation proceedings that Langdon initiated based on
allegations of harassment from Weiss' neighbor; and (ix)
returning to custody upon revocation of his community
defendants provided evidence in the form of declarations and
exhibits contesting many of the allegations in Weiss'
complaint. (Docket #42-46, 49-50). As noted earlier, Weiss
did not respond in a meaningful way to the defendants'
proposed facts, and therefore the defendants' facts will
be considered undisputed. Further discussion of specific
facts relating to each of Weiss' allegations will be set
forth below where appropriate.