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Castellano v. Mahin

United States District Court, E.D. Wisconsin

January 31, 2018



          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On June 13, 2017, the Court screened Plaintiff's Amended Complaint (his operative pleading). (Docket #13).[1] It allowed him to proceed on the theory that Defendant imposed “conditions of probation beyond those permitted by the applicable criminal judgment(s) or other valid orders imposing the same, or the imposition of existing conditions in an unconstitutional manner, in violation of Plaintiff's rights under the First, Fourth, Eighth, and Fourteenth Amendments.” Id. at 4. On December 1, 2017, Defendant moved for summary judgment. (Docket #25). Plaintiff responded to the motion on January 11, 2018, and Defendant replied on January 26, 2018. (Response, Docket #35; Reply, Docket #40). For the reasons explained below, Defendant's 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).

         3. BACKGROUND

         3.1 Plaintiff's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Plaintiff failed to dispute them. In the Court's scheduling order, entered June 23, 2017, Plaintiff was warned about the requirements for opposing a motion for summary judgment. (Docket #17 at 2-3). 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 Defendant's motion for summary judgment, she too warned Plaintiff about the requirements for his response as set forth in Federal and Local Rules 56. (Docket #25). He was provided with additional copies of those Rules along with Defendant's motion. Id. at 3-9. In connection with her motion, Defendant filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #27). It contained short, numbered paragraphs concisely stating those facts which Defendant proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         As provided in Civil Local Rule 56, Plaintiff's responsive materials needed to contain “a concise response to the moving party's statement of facts, ” including “a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” See Civil L. R. 56(b)(2). Plaintiff's January 11 response does not comply with this rule. Plaintiff's brief includes a two-page section entitled “Statement of Facts, ” which states a few facts without citation to any evidence. (Docket #35 at 2-3). Plaintiff also provided a separate statement of additional facts. (Docket #36). Many of those facts are not accompanied by a citation to evidence. See, e.g., Id. ¶¶ 5, 8, 9, 14. A few of Defendant's proposed facts are occasionally cited or referenced, but the entire body of facts is not addressed in the manner required by Civil Local Rule 56(b)(2). See, e.g., Id. ¶¶ 10, 21. In sum, Plaintiff has not filed anything approaching a response to Defendant's statement of facts as contemplated by the Local Rules.

         Despite being twice warned of the strictures of summary judgment procedure, Plaintiff ignored those rules by failing to properly dispute Defendant's proffered facts in the correct form, and with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“A district court is not required to wade through improper denials and legal argument in search of a genuinely disputed fact. And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. In short, judges are not like pigs, hunting for truffles buried in briefs.”) (citations and quotations omitted). 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 Defendant's facts undisputed for purposes of deciding her 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).[2]

         As noted above, Plaintiff did offer a statement of additional facts. The Court cannot accept those proposed facts, however, to the extent they are contradicted by Defendant's now-undisputed facts. Further, any facts which are not contradicted are still subject to dispute by Defendant via citation to relevant evidence. See Id. 56(b)(3)(B); (Docket #41). Finally, many of the additional facts do not comport with Local Rule 56; most are lengthy amalgamations of different facts, and others cite no evidence or irrelevant evidence. See Civ. L. R. 56(b)(2)(B)(ii). Thus, the set of Plaintiff's additional facts which may be properly considered by the Court is extremely limited. This is reflected in the Court's recitation of the facts below.

         3.2 Relevant Facts

         The following facts are material to the resolution of Defendant's motion.[3] In 1993, Plaintiff sexually assaulted his then-wife's 14-year-old sister. His offense included having sexual intercourse with his victim and he was arrested after trying to trade sexually explicit photographs and videos of his crime for other child pornography. In 2000, he was convicted of one count of second degree sexual assault of a child and three counts of sexual exploitation of a child, and sentenced to four consecutive 10-year prison terms. In 2011, Plaintiff was granted discretionary parole. That parole was revoked and Plaintiff was returned to prison after he violated his parole rules by traveling across the country, changing his residence, and accessing the internet, all without his agent's permission and all within about a month of his release from prison.

         In 2013, in preparation for Plaintiff's next parole grant, Plaintiff's agent at the time requested and received approval to place Plaintiff on a “discretionary” GPS tracking program. Discretionary GPS refers to the use of GPS monitoring (i.e., requiring an offender to wear a GPS tracking device) as a tool of supervision of offenders who are on active supervision.[4]Plaintiff's placement on a discretionary GPS tracking program was based on a determination that Plaintiff presented a high risk of sexual re-offense, which in turn was based on Plaintiff's prior failed parole. This determination was also based on evidence that Plaintiff has deviant sexual interests and a high level of sexual preoccupation. Specifically, DOC records indicate that Plaintiff wrote letters containing extremely explicit stories involving violent rapes of young children while incarcerated in 1996; he contemplated soliciting a pen pal to discuss erotic fantasies, incest, and other explicit subjects in 1996; he received a conduct report in 2002 after a sergeant observed him repeatedly inserting a conditioner bottle into his rectum in front of another inmate; he received a major conduct report for possession of pornographic material in 2005; and in 2011, after completing sex offender treatment but before he was released on parole the first time, he wrote a letter to another sex offender in which he described himself as a “way over the top” sex freak, and in which he provided explicit details about his deviant sexual preferences.

         Plaintiff's initial placement on discretionary GPS tracking was effective for ninety days. The placement was then renewed over his objection in September 2013. The reason for the renewal was that Plaintiff had not yet decreased his risk by showing significant progress in his sex offender treatment programing.

         On June 18, 2013, Plaintiff was again released on parole. His agent at the time was Defendant. Defendant explained Plaintiff's parole rules to him and he refused to sign them. Defendant explained that he was required to follow his rules whether he signed them or not. Although one of his rules explicitly required that he initial each written rule, Defendant did not seek to revoke Plaintiff when he refused to sign or initial the rules. Nor did Defendant threaten or “intimidate” Plaintiff when he refused to sign his rules. The purpose of the rule requiring Plaintiff to initial each of his rules in writing was to show that he had read them and avoid a later claim that he was unaware of a given rule.

         Plaintiff's rules also required that he seek, obtain, and maintain employment as directed by his agent; that he neither possess nor view any sexually explicit material without his agent's permission; that he neither purchase, possess, nor use a computer or other device capable of accessing the internet without his agent's permission; that he not enter any area frequented by persons under age 18 without his agent's permission; and that he fully cooperate regarding the GPS tracking program.

         Plaintiff resided in Veteran's Administration (“VA”) housing for the duration of this period of parole. He was enrolled in the VA's Domiciliary Care for Homeless Veterans (“DCHV”) program. The VA facility where Plaintiff resided included a library, and Defendant permitted Plaintiff to use computers in that library for the limited purpose of searching for employment. Limiting a sex offender's use of computers is a standard sex offender rule of supervision that is often used, as in Plaintiff's case, to prohibit viewing of sexually explicit material that is ubiquitous and easy to find on the internet.

         Plaintiff initially told Defendant and VA staff that he would refuse to accept jobs offering less than $15.00-$20.00 per hour, but he eventually obtained temporary factory employment and was working somewhat regularly before he was taken into custody in October 2013, discussed further below. Defendant encouraged Plaintiff to apply for several jobs through the DCHV program. If Defendant prohibited or discouraged Plaintiff from searching for any particular job, it was likely because the job would require him to enter places frequented by children while he was unsupervised. Requiring child sex offenders like Plaintiff to be chaperoned as a condition of any employment that may involve incidental contact with children is a common rule that is designed to protect the public. Plaintiff also expressed an interest in attending school before he was revoked, but he was advised that he could not attend school and be in the DCHV program because the program was intended to help veterans find employment.

         Plaintiff was referred for sex offender treatment programming upon the commencement of this period of parole. He was late for his first session and was not allowed to participate, and he was asked to leave his second session after he fell asleep during group. He was reportedly not an active participant in later groups, and according to program facilitators, he often appeared to have difficulty staying awake.

         In mid-July 2013, Plaintiff reported to Defendant that he had been to a public library in West Allis. Defendant warned him that doing so without her permission would violate the rule regarding potential contact with minors. Plaintiff did not have prior permission to use the public library in West Allis, and as noted above, Plaintiff had access to a library at the VA center where he resided.

         Plaintiff was taken into custody twice during this period of parole, not counting the custody leading to his revocation. Both arrests were based on apparent violations of his GPS program. First, on June 22, 2013, within a week of his release from prison, Plaintiff was arrested after leaving his designated “home zone” within the VA grounds. Plaintiff denied doing so intentionally. Although Defendant and VA staff suspected at the time that Plaintiff was intentionally testing the boundaries of the GPS program, Plaintiff was released back to GPS supervision on June 27, 2013 after VA staff agreed to accept him back into the DCHV program.

         Second, Plaintiff was arrested on September 14, 2013. He had been at an approved work site and had lost his GPS signal. He did not regain his signal for over two hours until he returned home. Defendant investigated and concluded that Plaintiff appeared to be attempting to follow his GPS rules. He was released on September 17, 2013 ...

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