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Wilke v. Stublaski

United States District Court, W.D. Wisconsin

February 21, 2019

KEVIN L. WILKE, Plaintiff,



         Pro se plaintiff Kevin L. Wilke was granted leave to proceed in this lawsuit on his claim that Wisconsin Probation Agent Adam Stublaski violated his due process rights in unreasonably delaying a revocation hearing following his arrest in 2013. Now before the court is defendant Stublaski's motion for summary judgment. (Dkt. #29.) Since the undisputed evidence of record establishes both that Stublaski is immune from suit and acted reasonably under the circumstances, the court will grant his motion.


         I. Officer Stublaski's Duties

         During the relevant time period, defendant Adam Stublaski was a Probation and Parole Agent for the State of Wisconsin, assigned to Region 8, Unit 804 in Wood County, Wisconsin. Among his various responsibilities were enforcing Wisconsin Department of Corrections (“DOC”) rules, Wisconsin statutes and conditions of probation and patrol; conducting investigations; and locating, detaining and transporting offenders who have violated conditions of supervision. Furthermore, Stublaski was bound to follow the DOC's Electronic Case Reference Manual (“ECRM”), which requires that agents: (1) inform supervisors if a Final Revocation Hearing is not occurring in a prompt and timely manner; (2) be prepared to prove that the offender committed the alleged violation and that the violation is sufficiently serious to require revocation according to applicable standards; (3) be responsible for the presence of any witnesses who will give information related to the revocation; and (4) have copies of all relevant documents and be prepared to testify at the hearing. Stublaski was Wilke's agent from March 2008 until July 2014.

         II. 2013 Revocation Proceedings

         As of December 2012, plaintiff Kevin Wilke was serving probation after pleading guilty/no contest to a charge of burglary. See State v. Wilke, No. 2002CF085 (Wood Cty.), available at (last visited Feb. 22, 2019). In that case, Wilke actually received a sentence of two years of incarceration in state prison and one year of extended supervision, but those penalties were stayed in lieu of his successfully completing eleven years of probation.

         Among other conditions, the terms of Wilke's probation generally required absolute sobriety and specifically prohibited his driving a car while under the influence. On December 1, 2012, Marquette County Sergeant Tom Goodwin pulled Wilke over on suspicion of driving under the influence of intoxicants. At the time of the stop, Wilke failed a sobriety test, but refused to take a breathalyzer. Therefore, Sergeant Goodwin transported Wilke to Divine Savior Hospital for a blood test, which confirmed his blood alcohol level was 0.107, well over the legal limit to drive a car.

         Sergeant Goodwin drove Wilke to the Marquette County Jail, where he issued Wilke a citation for operating a motor vehicle while intoxicated and misdemeanor bail jumping. Goodwin next called the Division of Community Corrections to notify them of Wilke's arrest. While Agent Stublaski was not working on December 1, Probation and Parole Agent Julie Braunreither completed an order to detain him, based on the new criminal charges and violation of the conditions of his community supervision.

         On December 6, 2012, Parole Agent Trista Whitehorse took Wilke's statement. Initially denying drinking any alcohol, Wilke then admitted that he had drank “a partial beer” some five hours before being pulled over by Sergeant Goodwin. On December 10, defendant Stublaski reviewed the Probation Office's custody hold and determined that a preliminary hearing was not required under Wis. Admin. Code § DOC 331.04(2), because Wilke had given a signed statement that he had drank alcohol in violation of his probation, and two days later, he submitted a revocation hearing request. Two days after that, on December 14, Stublaski's Probation Supervisor, Matthew Stake, determined that Wilke should remain in custody pending that hearing. More specifically, Stake agreed with Stublaski's recommendation to keep Wilke in custody because: he was believed to be dangerous; he was likely to engage in criminal behavior before the revocation took place; he was likely to engage in an activity that did not comply with the rules and conditions of his supervision; and the length of the sentence he would serve if revoked was great.

         On January 4, 2013, the State of Wisconsin Division of Hearings and Appeals scheduled the revocation hearing for February 5, 2013. Defendant Stublaski had no control over the scheduled date; at most, Stublaski could provide a list of the dates he was not available, which in his case was December 24, 2012, through January 2, 2013, due to the holidays. Later, on January 14, 2013, Marquette County filed a criminal complaint against Wilke on charges of operating under the influence and bail jumping. (Def. Ex. 1015 (dkt. #32-1).)

         III. Stublaski's Revocation Summary

         In advance of the scheduled hearing, defendant Stublaski completed a “Revocation Summary” on January 23, 2013, which ultimately recommended revocation. (Def. Ex. 1005 (dkt. #31-6).) In particular, Stublaski wrote that revocation was appropriate for the following reasons:

• Wilke admitted to drinking one partial beer, but otherwise denied that he had been drinking on December 1, 2012. The fact that he had admitted to drinking a partial beer still meant that he violated his probationary terms because he was under an absolute sobriety order.
• The blood test results showed that Wilke was intoxicated.
• Wilke refused to accept responsibility for his actions, even after the blood test results proved that he had ...

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