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Huber v. Anderson

United States District Court, E.D. Wisconsin

October 1, 2019

ROBERT W. HUBER, JR., Plaintiff,


          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         In 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.

         For the 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.


         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 “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).

         In 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).

         3. RELEVANT FACTS

         Despite 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).

         Thus, 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.

         Plaintiff 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.

         November 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.

         Plaintiff 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.

         Based 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.

         In 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 until 2011.

         By the 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.

         Bock 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 concerns.

         In 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 comically ineffective.

         The day 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 ...

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