United States District Court, E.D. Wisconsin
DECISION AND ORDER
JOSEPH, UNITED STATES MAGISTRATE JUDGE
Clay, a Wisconsin state prisoner, filed an amended complaint
alleging that the defendants violated his civil rights. Not
all parties have had the opportunity to consent to magistrate
judge jurisdiction under 28 U.S.C. § 636(c).
Nonetheless, the court has jurisdiction to screen Clay's
amended complaint under the Wisconsin Department of
Justice's limited consent to the exercise of magistrate
judge jurisdiction as set forth in the Memorandum of
Understanding between the Wisconsin Department of Justice and
Prison Litigation Reform Act (PLRA) applies to this case
because Clay was incarcerated when he filed his complaint.
The PLRA requires courts to screen complaints brought by
prisoners seeking relief against a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must allege that: 1) he was deprived
of a right secured by the Constitution or laws of the United
States; and 2) the deprivation was visited upon him by a
person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
alleges that defendants Angela Henslin, Wendy Borner, Megan
Bunke, and Heath Tomlin erroneously calculated his prison
sentence when they failed to note that two of his sentences
should run concurrently rather than consecutively. As a
result, Clay alleges that he served 376 days beyond his
correct release date.
four months after his release, Clay's supervising agent
initiated proceedings to revoke his supervision. Shortly
thereafter, defendant Anne Parenteau calculated the time Clay
had available for reincarceration. Clay alleges that, despite
having access to his complete legal file, Parenteau failed to
alert his supervising agent to the 376 days he had served
beyond his release date.
October 16, 2018, Clay's extended supervision was revoked
and he was ordered to serve one year of reincarceration. Clay
alleges that a Department of Correction policy requires that
the 376 days that he served beyond his release date be
credited to his supervision rather than to the incarceration
portion of his sentence. Clay alleges that this policy, which
was implemented and is enforced by defendants Kitty Anderson,
Deborah Rychlowski, Steffanie Nally, Karen Kussman, and
Melissa Schuler, violates the U.S. Constitution, the
Wisconsin Constitution, and Wisconsin Supreme Court
short, Clay alleges that he is now serving one year in prison
that he should not be required to serve. Clay seeks monetary
beyond the date when a person is entitled to be released
violates the Eighth Amendment if it is the product of
deliberate indifference.” Figgs v. Dawson, 829
F.3d 895, 902 (7th Cir. 2016). To state a
deliberate-indifference claim, a plaintiff must allege more
than negligence; he must allege that the defendant ignored a
known risk. Id. (citations omitted). “A state
officer is deliberately indifferent when he does nothing, or
when he takes action that is so ineffectual under the
circumstances that deliberate indifference can be
inferred.” Id. (internal citations omitted).
Clay may proceed against Anderson, Rychlowski, Nally,
Kussman, and Schuler based on his allegations that they
created and/or implemented a policy that requires Clay to
serve time beyond his release date and therefore violates the
U.S. Constitution, the Wisconsin Constitution, and Wisconsin
Supreme Court precedent. See Id.; Hammer v.
Ashcroft, 512 F.3d 961, 970 (7th Cir. 2008).
may also proceed against Henslin, Borner, Bunke, and Tomlin
on state law negligence claims in connection with the
erroneous calculations of his prison sentence.
court will not, however, allow Clay to proceed on claims
against his social worker, defendant Karen Strobel. Clay
alleges that, despite knowing that he believed his sentence
had been miscalculated, she failed to instruct him to contact
the Records Office and request a review of his sentence
calculation. “There is no general duty of rescue”
in the Constitution. Burks v. Raemisch, 555 F.3d
592, 596 (7th Cir. 2009). Not every person “who knows
(or should know) about a wrong must do something to fix
it.” Id. This is because refusing to go beyond
the requirements of one's job to try and help someone
does not cause or contribute to the alleged underlying
court also will not allow Clay to proceed on a
deliberate-indifference claim against Parenteau based on his
allegations that, despite having knowledge of previous errors
in calculating his sentence, she did not inform his
supervising agent of that information when she calculated the
time Clay had available for reincarceration. According to
Clay, the extra time he served was added to his supervision
sentence per DOC policy, not per any error in calculation by
Parenteau. In other words, even if Parenteau had
communicated that information to Clay's supervising
agent, it would not have affected the calculation of the time
available for reincarceration.
IS THEREFORE ORDERED that Karen Strobel and Anne