523 F.3d 776 (7th Cir. 2008), 07-2984, Domka v. Portage County, Wisconsin

Docket Nº:07-2984
Citation:523 F.3d 776
Party Name:James DOMKA, Plaintiff-Appellant, v. PORTAGE COUNTY, WISCONSIN, Defendant-Appellee.
Case Date:April 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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523 F.3d 776 (7th Cir. 2008)

James DOMKA, Plaintiff-Appellant,



No. 07-2984

United States Court of Appeals, Seventh Circuit.

April 24, 2008

Argued Feb. 14, 2008.

Appeal from the United States District Court for the Western District of Wisconsin. No. 07-c-0063-s-John C. Shabaz, Judge.

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Jeff Scott Olson (argued), Madison, WI, for Plaintiff-Appellant.

Michael J. Modl (argued), Madison, WI, for Defendant-Appellee.

Before MANION, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

As a result of James Domka's plea bargain following his third-offense arrest for driving under the influence, his sentence included work-release privileges (known in Wisconsin as "Huber privileges") and the opportunity to serve the majority of his jail time at home under Portage County's Home Detention Program ("HDP"). While under the HDP, Domka registered a positive alcohol reading on a Sobrietor, an alcohol breath-test machine connected to the Sheriff's Department through Domka's phone line. Domka's Huber privileges and participation in the HDP were then revoked and he was required to serve his remaining time in jail. Domka filed suit against Portage County under 42 U.S.C. § 1983, alleging that he had constitutionally

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protected liberty interests in his Huber privileges and the HDP and that, in violation of the Fourteenth Amendment, he was deprived of these without the requisite procedural due process. The district court found that Domka had waived any constitutionally required due process rights he may have had, and granted Portage County's motion for summary judgment. We agree with the district court and affirm its decision.


On December 10, 2004, James Domka drove his car into a ditch. Found to have an alcohol content of .179, Domka was charged with his third offense Operating Under the Influence of Intoxicants and on April 22, 2005 was sentenced to 105 days in jail with Huber work-release privileges, the first 30 to be served in jail and the balance on electronic monitoring. Pursuant to his plea agreement and the sentence, Domka was to have Huber privileges1 both while serving in the jail and while finishing his sentence outside the jail on an electronic monitor under Wisconsin's Home Detention Program ("HDP"). Wisconsin Statute § 302.425, which creates the HDP, provides in relevant part:

Subject to the limitation under sub. (3), a county sheriff or a superintendent of a house of correction may place in the home detention program any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime. The sheriff or superintendent may transfer any prisoner in the home detention program to the jail.

Wis. Stat. § 302.425(2).

The statute further provides:

If a prisoner described under sub. (2) and the department agree, the sheriff or superintendent may place the prisoner in the home detention program and provide that the prisoner be detained at the prisoner's place of residence or other place designated by the sheriff or superintendent and be monitored by an active electronic monitoring system. The sheriff or superintendent shall establish reasonable terms of detention and ensure that the prisoner is provided a written statement of those terms, including a description of the detention monitoring procedures and requirements and of any applicable liability issues....

Wis. Stat. § 302.425(3).

The Portage County Sheriff's Department, pursuant to the Wisconsin statute, codified the terms of its HDP in a three page, 24 paragraph document entitled "Portage County Sheriff's Department Home Detention Program" (the "PCSDHDP") and established the use of a Sobrietor as part of the program.

Domka served his time in the Portage County jail from June 7 through June 27, 2005. On June 27, Domka and Penny Borski, the Portage County officer who was in charge of administering the HDP, met and together reviewed each of the 24 items contained in the PCSDHDP. After indicating to Officer Borski that he understood a provision and agreed to comply with it, Domka initialed each paragraph individually. The following paragraphs of the PCSDHDP are of particular relevance:

I understand the consumption of alcoholic beverages or unlawful drugs or narcotics is prohibited and will result in immediate removal from the Home Detention Program, loss of Huber Privileges and returned (sic) to the Portage County Jail. (Paragraph 8.)

I understand a violation of any of these conditions of agreement will cause my

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removal from the program without notice or avenue of appeal .... (Paragraph 12.)

We will not tolerate any excuses, such as, but not limited to: failing the voice test, missing a call, failing to get off the phone when the machine is trying to call you etc. All the above are grounds for removal off the Program . In addition, it is your responsibility to inform your household of the conditions that need to be followed. (Paragraph 16.)

As a required part of the HDP, at random times throughout each day Domka would have to speak and blow into the Sobrietor. At the meeting on June 27, Officer Borski also reviewed with Domka the "BI Sobrietor Client Information" form which provided, inter alia:

Any alcohol reading on the sobrietor will result in immediate removal from HDP and you will lose your HDP & Huber Privileges. Be aware that ingesting any food or drink with alcohol can result in a positive breath alcohol test. Example, mouthwash and toothpaste; chewing tobacco; cough medicine; vanilla extract; & some sauces and candies.

In Officer Borski's presence, Domka signed this form as well, below the statement which read "I understand any violation(s) of these rules can result in termination from the HDP Program."

Between June 27 and July 10, 2005, the Sobrietor recorded several failed tests as the result of user error, none of which registered a positive alcohol reading. On Sunday, July 10, 2005 at 9:55 am, Domka's Sobrietor test resulted in a positive alcohol reading of .021. As with all individuals on a Sobrietor program who test positive for alcohol, Domka was automatically retested by the Sobrietor five minutes later. Domka's 10:00 am Sobrietor test again registered a positive alcohol reading of .021.

When Office Borski returned to work early Monday morning, July 11, and saw Domka's Sobrietor had recorded two positive alcohol tests the previous day, she called Domka and requested that he report to jail within the hour. As a result of his violation of the PCSDHDP, Domka's participation in the HDP was then revoked and his participation in the Huber program was suspended. Domka served the balance of his sentence, 41 days, in the Portage County jail without Huber privileges.

Domka was released on August 21, 2005 and subsequently brought a 42 U.S.C. § 1983 case against Portage County, alleging that the County unconstitutionally deprived him of liberty interests without due process. Judge Shabaz granted the County's motion for summary judgment, holding that even if Domka did have liberty interests in remaining in the HDP and Huber privileges which would trigger constitutionally required due process, he had waived those rights in the HDP agreements.


Reviewing the lower court's decision de novo and viewing the facts and all reasonable inferences in the light most favorable to the party opposing judgment, e.g., CSX Transp., Inc. v. Appalachian Railcar Servs., Inc., 509 F.3d 384, 386 (7th Cir. 2007), we agree that Domka's case presents no genuine issue of material fact and therefore the summary judgment granted to Portage County should be affirmed, see Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).


Domka's first hurdle is identifying a protected interest. "An essential component of a procedural due process claim is a protected property or liberty interest." Minch v. City of Chicago, 486 F.3d 294, 302 (7th Cir. 1997)

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(citing Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), Bd. of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "Liberty interests can arise from two sources: the Federal Constitution or state law." Thielman v. Leean, 282 F.3d 478, 480 (7th Cir. 2002) (citing Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir. 1982). Conceding that no Wisconsin statute serves as the source of his alleged liberty interests, Domka puts forth two other theories to make his case: that the plea agreement between himself and the prosecutor granted him protected liberty interests in home detention and Huber privileges; and that the due process clause itself provides the basis for his liberty interest in those programs.

We easily reject the former argument. Domka had a choice in his plea agreement; he elected to serve a total of 105 days with most of that time in the HDP with Huber privileges rather than a shorter sentence of 75 days all to be served in jail, also with Huber privileges. The plea agreement, Domka claims, therefore gave him a "legitimate entitlement" in those programs which entitlement gives rise to due process requirements which were not met here. We are unable to follow Domka's "logic" that his negotiations with the prosecutoripso facto created a constitutional liberty interest in the programs into which he was subsequently placed and the three Supreme Court cases Domka cites do nothing to bolster his case as none of them supports his theory. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972), actually cuts the other way, as Domka did receive the sentence he had negotiated; Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), dealt with the language requirements that must be contained within a state regulation in order for a state to...

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