United States District Court, E.D. Wisconsin
ROBERT W. HUBER, JR., Plaintiff,
GLORIA ANDERSON, ELIZABETH HARTMANN, MIKE WALCZAK, NIOMI BOCK, KATHY WALTER, and ALLAN KASPRZAK, Defendants.
Stadtmueller U.S. District Judge.
1988, Plaintiff was sentenced in the Milwaukee County Circuit
Court to a 4-year term of probation for forgery. He alleges
that Defendants, current or former employees of the Wisconsin
Department of Corrections (“DOC”), continued to
exercise supervision over him long after his probation term
had expired. Plaintiff was correct, and though he complained
about this for years, the DOC only acknowledged its mistake
in 2014. In January 2016, he filed this suit against
Defendants for false imprisonment and other claims related to
his continued probation.
better part of this case, Plaintiff proceeded pro
se. The Court granted summary judgment to Defendants in
December 2016 and dismissed the action entirely. (Docket
#97). Plaintiff appealed, and two years later, the Court of
Appeals reversed this Court's dismissal and vacated the
summary judgment decision. (Docket #120). On remand,
Plaintiff obtained counsel. The Court then entered a trial
scheduling order which included additional time for discovery
and dispositive motion practice. (Docket #127). Thereafter
Defendants took the opportunity to file a new summary
judgment motion. (Docket #132). For the reasons explained
below, that motion must be denied.
STANDARD OF REVIEW
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 “genuine” dispute of
material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The Court construes all
facts and reasonable inferences in a light most favorable to
the non-movant. Bridge v. New Holland Logansport,
Inc., 815 F.3d 356, 360 (7th Cir. 2016).
assessing the parties' proposed findings of fact, the
Court must not weigh the evidence or determine witness
credibility; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chi.
Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).
Internal inconsistencies in a witness's testimony
“‘create an issue of credibility as to which part
of the testimony should be given the greatest weight if
credited at all.'” Bank of Ill. v. Allied
Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th
Cir. 1996) (quoting Tippens v. Celotex Corp., 805
F.2d 949, 953 (11th Cir. 1986)). The non-movant “need
not match the movant witness for witness, nor persuade the
court that [its] case is convincing, [it] need only come
forward with appropriate evidence demonstrating that there is
a pending dispute of material fact.” Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
the parties' protracted disagreements associated with
this action, they do not actually dispute the facts material
to Defendants' motion. Plaintiff attempted to dispute
Defendants' statements of fact, but ultimately failed to
do so in accordance with the applicable procedural rules.
Those rules provide that a response to a statement of facts
must include “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[.]” Civ. L. R.
56(b)(2)(B)(i); see also Fed. R. Civ. P. 56(c)(1).
While Plaintiff did respond to each of Defendants'
proposed facts, and stated that he disputed certain facts,
almost none of are accompanied with appropriate citations to
the record. See generally (Docket #138).
Plaintiff's refusal to follow the rules of summary
judgment procedure means that the Court must deem
Defendants' proposed facts largely undisputed.
Fed.R.Civ.P. 56(e). Defendants, for their part, have stated
that they do not deny any of Plaintiff's statements of
fact for purposes of their motion. (Docket #143 at 10 n.4).
for purposes of deciding Defendants' motion, the
undisputed material facts are as follows. In 1988, Plaintiff
was convicted of forgery and sentenced to four years of
probation. In 1992, the probation term was extended for three
additional years to provide Plaintiff additional time to pay
his restitution obligation. Thus, the now extended probation
term was scheduled to conclude on November 3, 1995. Defendant
Gloria Anderson (“Anderson”) became
Plaintiff's probation agent in February 1994. When she
took over, an apprehension request was already pending for
Plaintiff. Plaintiff's prior probation agent issued the
request, alleging that Plaintiff had failed to report to the
agent since May 19, 1993. In June 1994, Anderson filed a
recommendation for administrative action seeking to stop the
expiration of Plaintiff's time on probation. The request
was approved, and Plaintiff's probation time was
administratively stopped effective May 19, 1993.
was apprehended in November 1994. Anderson and her
supervisor, Defendant Elizabeth Hartmann
(“Hartmann”), were staffed on the case. Because
Plaintiff had not committed any new crimes while classified
as an absconder, he was released back on to probation four
days later. According to the DOC operations manual in force
at the time, Anderson was required to make a determination as
to whether Plaintiff should receive credit on his probation
sentence for the time while absconding. Once that
administrative task was completed, Plaintiff's probation
time could only be legally tolled if he admitted to
absconding on a reinstatement form, or he was found guilty of
such in a revocation proceeding. Anderson's
contemporaneous notes indicate that she planned on
not giving Plaintiff credit for his time spent
absconding. She did not, however, follow through with the
necessary paperwork. As a result, although Plaintiff's
probation time had been administratively stopped, it was
never legally tolled during his absconding interlude.
3 came and went without any action by Anderson. Her notes
reflect that Plaintiff reported to her only sporadically
throughout 1995, and on November 17, 1995, she issued an
apprehension request for him. This request was approved by
Hartmann. Hartmann later acknowledged that she did not review
Anderson's notes or Plaintiff's case file prior to
giving her approval. Hartmann admitted that, if she had
reviewed the notes, she would not have considered Plaintiff
to be an absconder.
was picked up on January 5, 1996. A few days later, Anderson
met with Plaintiff. She told him that his probation time had
been tolled for having absconded during the 1993-1994 period,
and so his probation term had not been completed. She
informed Plaintiff that he could either sign a request for
reinstatement on probation, or he would remain in jail and
she would seek revocation. Plaintiff chose to sign the
reinstatement request. Plaintiff claims that at the time he
signed it, the form did not specify the reason for
reinstatement, and that someone later penciled in that the
reason was his absconding.
on that form, an order was issued in March 1996 reinstating
Plaintiff's probation. The form bore the signature of
Defendant Allan Kasprzak (“Kasprzak”), the
regional chief of the DOC for Milwaukee County. Plaintiff
notes that Kasprzak denies physically signing the form; his
signature would have been stamped on the form by someone
else. He never reviewed any documents from Plaintiff's
file prior to allowing his name to be stamped on the form.
Further, Kasprzak's secretary, the most likely person to
stamp his name, had no training as a probation agent and did
not herself review any documents.
2000, while still on probation, Plaintiff was arrested and
charged with new crimes. His then current probation agent,
Defendant Michael Walczak (“Walczak”), initiated
revocation proceedings against Plaintiff. Plaintiff's
probation was revoked and he received a
“withheld” ten-year sentence. Plaintiff was also
convicted of the new crimes, which kept him incarcerated
time he was released, Plaintiff had investigated his
probation history and determined that the DOC had lost
jurisdiction over him back in 1995. He raised this argument
with his new probation agent, Defendant Niomi Bock
(“Bock”), who relayed his concerns to her
supervisor, Defendant Kathy Walter (“Walter”).
Walter says she contacted the Central Records Unit
(“CRU”), which informed her that Plaintiff was
still properly on probation. During her deposition, Walter
admitted that she did not make any notes about contacting the
CRU on this matter, despite the requirement that she note all
of her actions in Plaintiff's file.
continued to supervise Plaintiff, though he was none too
pleased with the situation. Because his 2001 conviction
included sex offenses, Plaintiff was subject to certain rules
of supervision particular to sex offenders, including a
prohibition on using a computer without his agent's prior
approval. Plaintiff nevertheless had a strong desire to
continue researching the law related to his jurisdictional
November 2011, Plaintiff informed Bock that he wanted to
research the preparation of a petition for a writ of
certiorari to the Supreme Court and type out such a document.
The petition was to be filed in a habeas action Plaintiff had
commenced attacking the 2001 probation revocation, which was
pending in this district before Judge William Griesbach.
Plaintiff wanted to do his research at the Marquette
University Law Library, but Bock refused to permit him.
Instead, Bock attempted to accommodate Plaintiff's
research needs by allowing him to use a DOC computer in the
probation office and a flash drive where he could save his
work. Plaintiff says that this accommodation was almost
after Plaintiff conducted his research in the probation
office, Bock asked him to sign a form consenting to sex
offender treatment. He refused to do so without also writing
on the form that he objected to being forced to sign, as he
felt this would preserve his jurisdictional arguments. Bock
contacted Walter, who determined that Plaintiff's
behavior constituted a failure to comply with the treatment
program. Walter ordered that Plaintiff be arrested on the
spot. Bock then found that Plaintiff had been misusing the
DOC-supplied flash drive and initiated ...