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Kirch v. Baxter

United States District Court, E.D. Wisconsin

November 20, 2017



          J. P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         On February 22, 2017, Plaintiff filed his Complaint in this matter. (Docket #1). While on parole supervised by agents of the Wisconsin Department of Corrections (“DOC”), Plaintiff alleges that those agents violated his constitutional rights. (Docket #9 at 3-5). On March 14, 2017, the Court screened Plaintiff's Complaint and allowed him to proceed on two claims. (Docket #9 at 6). On October 2, 2017, Defendants Chad Lemerond (“Lemerond”) and Katie Baxter (“Baxter”), Plaintiff's parole agents, and Defendant Bobbi Christopherson (“Christopherson”), [1] a field supervisor, moved for summary judgment. (Docket #24). Plaintiff filed nothing in response to the motion, and his time in which to do so has long since expired. Civ. L. R. 7(b). For the reasons explained below, Defendants' motion must be granted.


         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 relevant facts are undisputed because Plaintiff failed to dispute them. In the Court's scheduling order, entered April 19, 2017, Plaintiff was warned about the requirements for opposing a motion for summary judgment. (Docket #13 at 3). 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 Defendants' motion for summary judgment, they too warned Plaintiff about the requirements for his response as set forth in Federal and Local Rules 56. (Docket #24). He was provided with additional copies of those Rules along with Defendants' motion. Id. at 2-12. In connection with their motion, Defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #26). It contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         As noted above, Plaintiff filed absolutely nothing in response to Defendants' motion, much less a response to their statement of facts. Despite being twice warned of the strictures of summary judgment procedure, Plaintiff ignored those rules by failing to properly dispute 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 Defendants' facts undisputed for purposes of deciding their motion 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). In the interest of brevity, the Court assumes familiarity with those facts for the purposes of this Order. See generally (Docket #26) (twenty-two pages of material facts).

         4. ANALYSIS

         Without any filings from Plaintiff, Court must rely on the Complaint itself to recount his claims and his allegations underlying them. Plaintiff asserts that Lemerond imposed various conditions of parole which were onerous and went beyond what was provided by court judgments or the standard rules of community supervision. (Docket #9 at 3). This included refusing to let Plaintiff travel to retrieve or visit his property, forcing him to pay for a landline telephone, and setting a curfew which interfered with his medical care. Id. at 3-4. Lemerond also placed Plaintiff on electronic monitoring, which Plaintiff says prevented him from obtaining a good- paying job. Id. Finally, Lemerond allegedly refused to let Plaintiff visit his child though such contact was provided for in his divorce judgment. Id. at 4. Plaintiff ropes Christopherson into these complaints by alleging that he reported his concerns to her, but she did nothing in response. Id. Plaintiff also complains that Baxter obtained an extension of his parole period because he owed court costs and fees, when his criminal judgment allegedly did not permit such an extension. Id.

         At screening, Plaintiff was allowed to proceed on two claims:

1) Lem[e]rond and [Christopherson's] imposition of conditions of probation beyond those permitted by the applicable criminal judgment(s), or the imposition of existing conditions in an unconstitutional manner, constituting deliberate indifference to [Plaintiff's] right to be free of those conditions, in violation of the Eighth Amendment; and
2) Baxter's attempt to extend [Plaintiff's] term of supervision in contravention of the applicable criminal judgment(s) constituting deliberate indifference to his right to be free of further supervision, in violation of the Eighth Amendment.

(Docket #9 at 6). Plaintiff's failure to oppose Defendants' motion in any form, standing alone, warrants granting the motion. Civ. L. R. 7(d). Nevertheless, on the undisputed facts presented, it is clear that that the allegations of Plaintiff's Complaint are divorced from reality. Those facts ...

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