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Dickerson v. Gersy

United States District Court, E.D. Wisconsin

January 9, 2020

TRAVIS DICKERSON, Plaintiff,
v.
ALLISON GERSY, Defendant.

          REPORT AND RECOMMENDATION ON MOTIONS FOR SUMMARY JUDGMENT

          Nancy Joseph United States Magistrate Judge.

         Travis Dickerson is a Wisconsin state prisoner representing himself in this lawsuit. On December 21, 2018, I screened the complaint and allowed Dickerson to proceed on a claim that defendant Allison Gersy, his parole agent, had him falsely arrested and imprisoned in violation of the Fourth Amendment. (Docket # 4 at 4.) On January 14, 2019, the case was reassigned to U.S. District Judge Lynn Adelman because not all parties consented to magistrate judge jurisdiction. Although this case is assigned to Judge Adelman, on February 1, 2019, Judge Adelman referred the case to this court to handle pretrial proceedings. (Docket # 9.) Both Dickerson and Gersy have filed motions for summary judgment. For the reasons explained below, I recommend that Dickerson's motion be denied and that Gersy's motion be granted.

         BACKGROUND

         Dickerson filed two motions for summary judgment (Docket ## 10, 19) and Gersy filed a motion for summary judgment (Docket # 28). On August 28, 2019, Judge Adelman denied as moot Dickerson's first motion for summary judgment. (Docket # 33.) In that order, Judge Adelman stated that he would consider the brief and declaration Dickerson filed in support of his first motion for summary judgment, along with the brief and proposed findings of fact he submitted in support of his second motion for summary judgment, when the court addressed Dickerson's second summary judgment motion and Gersy's summary judgment motion. (Id.) I will therefore consider these materials.

         On September 18, 2019, I ordered Dickerson to file a response to Gersy's motion for summary judgment and warned that this case might be dismissed for lack of diligence if he failed to do so. (Docket # 34.) Dickerson did not file a response to Gersy's motion. But on the same day I issued the order directing him to respond, Dickerson filed a letter along with several exhibits related to his claim. (Docket # 35.) Based on this filing, I cannot conclude that Dickerson has shown a lack of diligence in litigating this case. I will therefore resolve the summary judgment motions on the merits.

         FACTS[1]

         Defendant Allison Gersy has been employed as a probation and parole agent with the State of Wisconsin since December 5, 2015. (Def.'s Proposed Findings of Fact (“DPFOF”) ¶ 1, Docket # 30.) Dickerson is an inmate at the Milwaukee Secure Detention Facility (MSDF). (DPFOF ¶ 3.) Gersy has served as Dickerson's parole agent from September 20, 2016 until the present. (DPFOF ¶ 4.) Prior to Gersy, Heather Damask (formerly Heather Sikorski) served as Dickerson's parole agent. (DPFOF ¶ 5.)

         1. Dickerson's 1996 Conviction

         On April 17, 1996 Dickerson was convicted of three felonies related to the violent assault of a female victim: (1) Count 1: False Imprisonment; (2) Count 2: Substantial Battery; and (3) Count 3: Second Degree Recklessly Endangering Safety in Milwaukee County No. 1996CF960123. (DPFOF ¶ 6.) As a result of his convictions, Dickerson received the following sentences: (1) Count 1: five years of probation; (2) Count 2: eight-year parole release sentence; and (3) Count 3: five years of probation.[2] (DPFOF ¶ 7.) He also received the following stayed sentences in Counts 1 and 3: (1) Count 1: five years initial confinement, consecutive to Count 2; and (2) Count 3: five years initial confinement, consecutive to Count 1. (ECF No. 31-1 at 1.)

         Dickerson started his prison term for Count 2 around January 1, 1996 because he was given about five months of custody credit. (DPFOF ¶ 9.) On May 1, 2001, Dickerson was released on parole for Count 2 after having spent roughly five years, four months in prison. (DPFOF ¶ 10.) After several community correction holds, Dickerson was discharged on Count 2 on September 6, 2005. (DPFOF ¶ 11.)

         Upon the discharge of Count 2 on September 6, 2005, Dickerson's probation for Counts 1 and 3 began to run.[3] (DPFOF ¶ 12.) On June 6, 2008 Dickerson was arrested for violating his rules of supervision; specifically, Dickerson fraudulently altered documents at the bank in order to cash checks. (DPFOF ¶ 13.) On August 22, 2008, Dickerson's probation was revoked on Counts 1 and 3 for violating the conditions and rules of his supervision, and Dickerson was reincarcerated. (DPFOF ¶ 14.) Dickerson did not successfully complete his probation for Count 1 or 3 prior to his probation being revoked on August 22, 2008 and he received no credit towards his probation sentence for the “street time” between September 6, 2005 (when his 10-year sentence began) and June 6, 2008 (when he was arrested for violating the terms of his probation). (DPFOF ¶ 15.)

         Between September 6, 2005 August 22, 2008, Dickerson spent roughly forty days in custody under various community corrections holds, and he was awarded credit for those forty days in custody. (DPFOF ¶ 16.) On June 6, 2008, the clock reset, and Dickerson had ten years, minus forty days, of imprisonment and supervision to serve on Counts 1 and 3, placing his anticipated discharge date for Counts 1 and 3 at April 26, 2018. (DPFOF ¶ 16.)

         2. Release on Probation in 2014

         On December 23, 2014, Dickerson was granted parole for his reincarceration on Counts 1 and 3. (DPFOF ¶ 18.) At that time, he had three years, four months, and three days (for a total of forty months and three days) of probation left to serve on Counts 1 and 3. (DPFOF ¶ 19.) Because the parole on the Counts 1 and 3 were to run consecutively, Dickerson had roughly twenty months of parole on Count 1 followed by the remainder on Count 3. (DPFOF ¶ 20.)

         On January 20, 2015, Dickerson met with his agent and reviewed and signed a Rules of Supervision form. (DPFOF ¶ 21.) The Rules of Supervision laid out several rules that Dickerson had to follow as part of his parole, including:

• Rule 1: Avoid conduct that violates the law;
• Rule 9: Obtain approval and a travel permit from parole officer before ...

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