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Weiss v. Spielvogel-Donalds

United States District Court, E.D. Wisconsin

August 28, 2017

MARK A. WEISS, Plaintiff,



         1. INTRODUCTION

         Plaintiff 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.[1] 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.[2] (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.


         Federal 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).

         3. BACKGROUND

         3.1 Plaintiff's Failure to Dispute the Material Facts

         The 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 submission.

         In the 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.

         Weiss 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.

         Weiss 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 proposed facts.

         Despite 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).

         3.2 Relevant Material Facts[3]

         In 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.

         As part 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.

         Also in 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.

         On 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.

         The 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, 2011.

         In 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.

         On 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).[4] 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 supervision. Id.

         The 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.

         4. ANALYSIS

         4.1 ...

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