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Barber v. Stuessy

United States District Court, W.D. Wisconsin

October 3, 2017

DAVID BARBER, Plaintiff,



         Pro se plaintiff David Barber claims that defendant Wayne Stuessy, the records supervisor at Oakhill Correctional Institution, refused to release Barber from custody after he completed his sentence in violation of the Eighth Amendment. The parties have filed cross motions for summary judgment. (Dkt. ##26, 31.) For the reasons explained below, defendant's motion will be granted and plaintiff's motion will be denied.


         A. The Parties

         At all times relevant to this complaint, Barber was incarcerated at Oakhill Correctional Institution, where Stuessy is the Offender Records Supervisor. Stuessy's job duties include: (1) supervising and performing sentencing calculations; and (2) establishing maximum discharge dates, parole eligibility, mandatory release and extended supervision eligibility dates for offenders.

         B. Barber's Sentences

         On November 27, 2001, Barber was convicted in three different cases in Rock County. In Case No. 2001-CF-2272, Barber was convicted of possession with intent to deliver cocaine. In both Case No. 2001-CF-2363 and 2001-CF-2393, he was convicted of felony bail jumping. Barber was originally placed on six years of probation, with his sentences withheld in all three cases. On April 5, 2002, Barber's probation was revoked in all three cases. In Case No. 2272, he was sentenced to four years in prison, 11 years extended supervision; in Case No. 2363, he was sentenced to one year in prison, nine years extended supervision; and in Case No. 2393, he was sentenced to one year in prison, nine years extended supervision. All of these sentences were to run concurrently.

         As of October 25, 2005, Barber had completed his initial confinement time and he was entered into a treatment program at Rock Valley Community Program. On August 3, 2006, he was terminated from that program for drug use and other violations. On January 24, 2007, Judge Richard Werner revoked Barber's extended supervision altogether in Rock County Case Nos. 2001-CF-2272, -2363 and -2393, for which he received an additional sentence of three years, three months and 19 days of re-incarceration time to be served concurrently. Barber was released from prison on extended supervision on September 3, 2008.

         However, Barber's extended supervision was once again revoked by a Revocation Order and Warrant dated April 21, 2010. That order was signed by Diane Norman, the Division of Hearings and Appeals Assistant Administrator, who imposed a concurrent three-year, eight month and 20 day period of reincarceration in each case. After this second revocation, Barber was set to be released onto extended supervision on April 7, 2013, at which point his sentence of extended supervision would be five years, one month and one day remaining in Case No. 2001-CF-2272; two months and 15 days remaining in Case No. 2363; and no time remaining in Case No. 2393.[2]

         C. November 13, 2012 Order Regarding Sentence Credit

         On November 13, 2012, while Barber was in prison at Oakhill, however, Circuit Judge Richard Werner signed an Amended Order for Reconfinement after Revocation of Extended Supervision in the three cases. That Order stated in full: “11/12/12 Court Orders 133 Days additional credit - Total of 316 Days.”

         Immediately after receiving this order, Barber notified defendant Stuessy that (1) Judge Werner intended to reduce the time Barber was currently serving, and (2) as a result, Barber should be released from Oakhill the following week. Stuessy disagreed with Barber's interpretation of Judge Werner's order, however, maintaining that Barber was not entitled to sentence credit for his current reconfinement period. Stuessy believed this for three reasons. First, under Wisconsin Department of Correction's (“DOC”) interpretation of state statutes, sentencing credit could only be applied to reconfinement time for time spent in custody in connection with that same violation. Stuessy originally believed the sentence credit was granted for time Barber spent at Rock Valley Community Programs in 2006. Because Barber had been previously revoked in 2007, however, Stuessy now believed that any credit for time in 2006 should have been applied to reduce his reconfinement time in 2007. To the extent it was not, Stuessy argues that the credit could only be applied to reduce his remaining term of extended supervision, not his current reconfinement period.

         Second, as Record Supervisor, Stuessy did not believe that the sentencing court had the legal authority to set reincarceration time. Rather, under Wis.Stat. § 302.113(9)(am), Stuessy maintained that either DOC or the Division of Hearings and Appeals (“DHA”) sets the reincarceration time, depending on whether the offender had a revocation hearing. Here, DHA had set Barber's reincarceration time, so Stuessy believed it would violate § 302.113(9)(am) to interpret Judge Werner's order as reducing the current reincarceration time.

         Third, it was defendant Stuessy's understanding that credit could be earned only for time spent at a treatment facility, at least if leaving the facility would subject the individual to escape charges. Stuessy did not believe Barber would have been subject to escape charges if he had left Rock Valley Community Programs, so Stuessy questioned whether Barber was entitled to any credit at all. Stuessy also consulted with Stephanie Nally, the Division of Adult Institutions' Records Consultant, regarding the relevant statutes. She agreed ...

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