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Fissette v. Dzuranda

United States District Court, W.D. Wisconsin

July 23, 2019




         Pro se plaintiff Gregory Fissette, an inmate at Kettle Moraine Correctional Institution, is suing James Dzuranda in his official capacity as commissioner of the Connecticut Department of Corrections. Fissette seeks an injunction ordering the Connecticut DOC to remove a decades-old arrest warrant from the National Crime Information Center (NCIC). After screening his complaint, I allowed Fissette to proceed on a claim that the Connecticut DOC was violating his Fourth Amendment rights because it did not intend to extradite him, but nonetheless left his warrant on NCIC, resulting in repeated arrests in Wisconsin without prosecution. Dkt. 11.

         Six motions are before the court. First, Fissette moves for an extension of time to begin discovery. Dkt. 23. I will deny the motion. Discovery has not yet begun in this case. After the court holds a preliminary pretrial conference and sets a trial schedule, Fissette may move to adjust the schedule as necessary.

         Second, Fissette moves to amend his complaint to add individual-capacity claims against eight additional defendants. Dkt. 18. I will deny the motion because Fissette does not allege facts showing that any of these defendants violated his constitutional rights.

         Third, Dzuranda moves to dismiss the case because Connecticut removed the warrant from NCIC in response to Fissette's lawsuit. Dkt. 26. I will deny the motion because Dzuranda has not presented any evidence (or even asserted) that the removal of the warrant from NCIC is permanent or that Fissette's claim is moot. (Fissette also filed a “motion to strike” Dzuranda's motion to dismiss. Dkt. 33. Because I am already denying the motion to dismiss, I will also deny Fissette's motion to strike as moot.)

         Fourth, Fissette renews his motion for appointment of counsel. Dkt. 34. I will deny the motion because I am not convinced that the case will be too complicated for Fissette to litigate himself.

         The fifth and sixth motions are Fissette's requests for subpoenas to obtain state court documents. Dkt. 38 and Dkt. 40. I will deny the motions as premature because discovery has not yet started in this case.


         A. Motion to amend

         Fissette is proceeding on an official-capacity claim against Dzuranda, challenging Connecticut's policy of leaving warrants on NCIC without an intention to extradite the person after arrest. Dkt. 11. Fissette previously sought to amend his complaint to add claims for money damages against Dzuranda, but I denied the motion because official-capacity claims are limited to injunctive or declaratory relief. Dkt. 21. I explained to Fissette that to obtain compensatory or punitive damages, Fissette must sue a defendant in his or her individual capacity, and that to bring an individual-capacity claim, Fissette must name a defendant (1) who was personally involved in the decision to leave his warrant on NCIC and not extradite him; or (2) who was aware of the policy to leave warrants on NCIC without an intention to extradite, had the power to change that policy, and was aware that the policy led to constitutional violations, but chose to leave it in place anyway. I gave Fissette a short amount of time to supplement his complaint with additional allegations.

         Fissette now names eight defendants who, along with Dzuranda, he says were personally involved in the violation of his constitutional rights: Joseph Haggan, Eric Ellison, Frank Vieira, J. Colavolpe, George Byrd, Dan Bennett, Mark Sarsfield, and Robin Flanagan.

         Fissette's supplement is difficult to understand, but I take him to be arguing that these defendants were personally involved because, at various times, they signed documents asking Wisconsin officials to hold Fissette for extradition to Connecticut. See Dkt. 10-1, at 70-79. But requests for extradition do not violate the Fourth Amendment. Rather, Fissette's rights were violated by Connecticut's policy not to extradite him, which resulted in an unreasonable number of arrests and releases without prosecution. If Connecticut had actually extradited Fissette, as he says these individual defendants requested, then there would be no constitutional violation. Fissette does not say who made the decision not to extradite him, or whether it was the same person who decided to keep his name listed on NCIC.

         Fissette also reasserts his claim for denial of due process in violation of the Fourteenth Amendment. But I already dismissed this claim in my original screening order. Dkt. 11, at 5. As I previously explained, Fissette can litigate his due process claim by returning to Connecticut and challenging his probation revocation in Connecticut state court, but he cannot bring this claim in federal court while his state probation revocation is still pending.

         B. ...

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