Bowman v. Dubois
| Decision Date | 30 August 2018 |
| Docket Number | Case No. 17-cv-1513-pp |
| Parties | PERRY VILAS BOWMAN, Plaintiff, v. AGNES DUBOIS and NATHAN NELSON, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING THE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 4), DENYING THE PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DKT. NO. 5), DENYING AS MOOT THE PLAINTIFF'S MOTION FOR ORDER TO USE RELEASE ACCOUNT TO COVER PARTIAL COSTS OF FILING FEE (DKT. NO. 9) AND SCREENING THE PLAINTIFF'S COMPLAINT
Until July of 2018, plaintiff Perry Vilas Bowman was a prisoner in the Wisconsin prison system, and he is representing himself in this case. In the fall of 2017, he filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his constitutional rights by: 1) improperly revoking his extended supervision; 2) not crediting his time served; 3) subjecting him to unconstitutional restrictions during his extended supervision; 4) not allowing him to participate or have representation at a meeting where the community notification level regarding his sexual offense was determined for his extended supervision; and 5) not allowing him to be involved in any due process proceeding regarding his "discretionary" GPS monitoring for life. Dkt. No. 1. He also moved for leave to proceed without prepaying the filing fee, dkt. no. 2, for permission to use his release account to pay his partial filing fee, dkt. no. 9, for a temporary restraining order, dkt. no. 5, and for the court to appoint a lawyer to represent him, dkt. no. 4.
The Prison Litigation Reform Act (PLRA) applies to this case, because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, if he meets certain conditions. One of those conditions is that the plaintiff pays an initial partial filing fee. 28 U.S.C. §1915(b).
On November 6, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $4.40. Dkt. No. 10. The court received that fee on November 14, 2017. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee. Dkt. no. 2. Because the court has received the fee, and because the Wisconsin Inmate Locator shows that the plaintiff was released from custody on July 19, 2018, the court will deny as moot his motion to use release account funds to pay his partial filing fee. Dkt. No. 9. The court will require the plaintiff to pay the remainder of the filing fee over time as set forth at the end of this decision.
The law requires the court to screen complaints brought by prisonersseeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint's allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted).
To proceed under 42 U.S.C. §1983, a plaintiff must allege that: 1) someone deprived him of a right secured by the Constitution or laws of the United States; and 2) the person who deprived him of that right was acting under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give pro se plaintiff's allegations, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The complaint alleges that the plaintiff committed some offenses in the early 2000s, and that he was released to extended supervision on March 18, 2014. Dkt. No. 1 at 4, 5. Defendant Agnes Dubois was his supervising agent. Id.
The plaintiff explained that usually, about a month before a sex offender is to be released, the inmate has an opportunity to challenge "the level of community notification;" he stated that the inmate gets to present evidence, and to have the assistance of counsel and a psychological evaluation. Id. at 5. The plaintiff alleged that he was not given the opportunity to challenge the level of community notification assigned to him, to have an attorney represent him to challenge the level or to have a psychological evaluation conducted so that he could present it as evidence for the proceeding. Id. The plaintiff also alleged that he was "never advised that he [would] be subjected to" GPS monitoring for life. Id. The plaintiff alleged that Dubois "never had him involved in any type of due process hearing" for his assigned level of community notification or for his imposed GPS monitoring for life, id. at 4, "which [Dubois] called 'discretionary'" id. at 5.
The plaintiff claimed that Dubois informed him that she was "changing her rules of him to be more restrictive even though they do not fit his criminality in the least;" he does not say when this occurred. Id. at 4. The plaintiff stated that he told Dubois, at some point, that he did not agree with her previous treatment of him and that she had informed him that he would have "the exact same typeof rules that she had on him in the past." Id. He asserted that "Dubois did not want him to have contact with his family" and that "she did not care" that his family was "his support system." Id. at 5.
The plaintiff complained that Nelson, a supervisor at the Division of Community Corrections, was aware of but ignored his dissatisfaction with Dubois and that Nelson refused to provide him with a new agent despite the fact that Dubois was "hindering [the plaintiff's] rehabilitative goals." Id. at 4. The plaintiff asserted that his family contacted Nelson about Dubois's treatment of him, but that Nelson ignored them. Id.
At some point, the plaintiff's extended supervision was revoked; he did not say when. Id. at 4. But the plaintiff indicated that prior to that revocation, Dubois had someone named Dr. Dickey evaluate him for an alternative to revocation. Id. at 5. The plaintiff maintained that Dr. Dickey evaluated him despite the plaintiff telling Dubois that Dr. Dickey would not be "un-biased and impartial towards him" because of his "prior run-ins" with Dr. Dickey. Id. The plaintiff asserted that Dr. Dickey "did not examine him for his Release back into the Community nor did he evaluate him for the GPS for Life criteria that he was never advised that he was to be subjected to." Id. The plaintiff alleged that Dickey saw him only to consider an alternative to revocation, but that if he'd conducted a full evaluation, he would have been able to determine the plaintiff's actual risk to reoffend. Id.
The plaintiff explained "that in the end, [Dubois] revoked him," withoutgiving him an opportunity for an alternative to revocation. Id. at 4. He also alleged that neither Dubois or Nelson provided him with any of the following three post-revocation hearings: good time forfeiture hearing, re-incarceration hearing and re-confinement hearing. Id. The plaintiff also asserted that Dubois never credited him for the time he served while he was and was not being monitored by GPS. Id. at 5.
Anticipating that he soon would be released again for extended supervision, the plaintiff asserted that a few months before that release, a "CORE Meeting will be conducted for him." Id. at 6. He asserted that the CORE meeting would include ". . . Dubois, . . . Nelson, local law enforcement, and a Sex Offender Specialist." Id. The plaintiff predicted that he would not be allowed to participate in this meeting or to have a lawyer represent him. Id.
The Department of Corrections Inmate Locator service indicates that on January 2, 2018, the plaintiff was released on extended supervision. https://appsdoc.wi.gov/lop/detail.do. On June 17, 2018, he entered the Shawano County Jail; on June 20, 2018, he was admitted to the Racine Correctional Institution on an alternative to revocation. Id. He was released from Racine on July 19, 2018; his status shows that he is on active community supervision. Id.
The complaint seeks injunctive relief along with compensatory and punitive damages.
The plaintiff listed on the second page of his complaint his causes of action: First Amendment violations, Fifth Amendment violations, Eighth Amendment violations, Fourteenth Amendment violations, double jeopardy violations, substantive due process violations and procedural due process violations. Id. at 2.
The court believes that the plaintiff is alleging that the defendants violated his civil rights under 42 U.S.C. §1983. So, as explained above, he must allege sufficient facts to show that the defendants deprived him of rights guaranteed by the Constitution, and that the defendants were acting under color of state law when they did so.
Some of the plaintiff's allegations...
To continue reading
Request your trial