Jones v. Puckett

• Decision Date: 28 August 2001
• Docket Number: No. 00-C-204-C.,00-C-204-C.
• Citation: 160 F.Supp.2d 1016
• Parties: Ronald L. JONES, Plaintiff, v. Stephen J. PUCKETT and Diane Fergot, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

160 F.Supp.2d 1016

Ronald L. JONES, Plaintiff, v. Stephen J. PUCKETT and Diane Fergot, Defendants.

No. 00-C-204-C.

United States District Court, W.D. Wisconsin.

August 28, 2001.

OPINION AND ORDER

CRABB, District Judge.

In this civil action for injunctive and monetary relief, plaintiff Ronald L. Jones contends that defendants Stephen J. Puckett and Diane Fergot violated his rights under the Fourteenth Amendment when they deprived him of liberty by labeling him a sex offender without providing him due process. Plaintiff is seeking as relief an order that defendants remove the sex offender label and other erroneous information from his records, stop subjecting him to sex offender rules and treatment programs, consider him for parole even if he does not participate in treatment programs or admit that he is a sex offender and pay him compensatory damages.

The case is before the court on defendants' motion for summary judgment. Defendants contend that 1) plaintiff may not bring a claim under 42 U.S.C. § 1983 because he asked in his complaint for the restoration of his good time and his challenge to his identification as a sex offender necessarily calls into question the validity of his parole revocation and he has not been vindicated by a state remedy or by a grant of habeas corpus; 2) defendants provided plaintiff with adequate process to protect the liberty interest at stake; 3) defendants are entitled to qualified immunity; 4) plaintiff does not have a protected liberty interest in his security classification; and 5) plaintiff has not been denied parole consideration since being labeled a "sex offender" for programming purposes. Defendants argue also that defendant Brian Cagle should be dismissed from the action because he has never been served with plaintiff's complaint. This argument is moot because I dismissed Brian Cagle from this case in an order entered November 29, 2000. Defendants' motion for summary judgment will be granted because I find that plaintiff has failed to show that he was deprived of a liberty interest or that if he was, he was denied process adequate to protect the interest, and additionally, that defendants are qualifiedly immune from any claim for damages.

I will not strike plaintiff's response to defendants' motion as defendants urge because plaintiff's affidavit was not sworn to under oath or properly notarized. An affidavit need not be notarized; it is sufficient that the affiant declare under penalty of perjury that the statements are true. 28 U.S.C. § 1746. Because plaintiff has made such a declaration, his response will be considered. However, because neither the court nor defendants have received copies of plaintiff's exhibits J, L-O and Q-S, I will not consider any facts proposed by plaintiff that rely on those exhibits.

From the findings of fact proposed by the parties and from the record, I find that the following facts are not disputed.

UNDISPUTED FACTS

Plaintiff Ronald Jones is an inmate housed at Jackson Correctional Institution. At all relevant times, defendant Diane Fergot was employed at Oshkosh Correctional Institution as the Program Review Classification Coordinator and defendant Stephen Puckett was Director of the Bureau of Offender Classification and Movement for the Wisconsin Department of Corrections.

In 1978, plaintiff pleaded guilty to attempted murder and kidnaping in exchange for the dismissal of a sex offense charge and a jail escape charge. Under the plea agreement plaintiff reached with the state, his dismissed felony jail escape and sexual assault charges would not be read into the record, the state would retain the discretion to argue the dismissed charges and ask the court to consider those charges in plaintiff's sentencing, the parole board would not be able to consider the charges when plaintiff came up for parole and plaintiff would not be charged a second time with either dismissed offense. Plaintiff was sentenced to 40 years in prison.

On August 23, 1993 and November 27, 1993, the clinical services unit at the Oshkosh Correctional Institution performed clinical assessments of plaintiff to determine whether he had any treatment needs. On June 23, 1994, a staff psychologist at the Wisconsin Resource Center performed a clinical assessment of plaintiff. None of these assessments resulted in a determination that plaintiff needed sex offender or "denier's" treatment, that is, treatment for sex offenders who deny that they have committed a sex offense.

On August 3, 1995, Oshkosh Correctional Institution staff psychologist Brian Cagle wrote a sex offender assessment of plaintiff in which he recommended that plaintiff be required to complete sex offender treatment. Cagle recommended that plaintiff attend the denier's program because plaintiff "adamantly denie[d] committing any facet of the assault." On August 5, 1995, Cagle told plaintiff that he had performed a sex offender assessment on plaintiff's records and that he would recommend that plaintiff's records be amended to show that he was in need of sex offender treatment. Plaintiff waived his right to attend the program review committee meeting on August 29, 1995. The committee issued its recommendations and decision with regard to plaintiff that same day. Its review read in part as follows.

Scheduled review. We note and consider social worker comments, description of offense and recommendation. We are also aware of the fact that [plaintiff] waived his committee appearance. In reviewing the dynamics and nature of this offense which involved forced sexual intercourse as described by the social worker we note that no referral had ever been made to clinical services to determine if sex offender treatment was necessary. [Oshkosh Correctional Institution program review committee] referred this case to [Oshkosh Correctional Institution] clinical services for review. The case was reviewed by [Oshkosh Correctional Institution] clinical services (B.Cagle).... Considering the dynamics of the committing offense clinical services finds a [sexual offender treatment] program assignment appropriate for Mr. Jones and also identifies the need for the denier's program based on his lack of motivation to participate in [sexual offender treatment]. As such both programs will be added to his identified needs. As such, we also now note that he rates moderate in the area of program participation on the risk rating due to his identified need for denier's program.

On September 3, 1995, plaintiff asked Oshkosh Correctional Institution clinical services for a copy of Cagle's clinical evaluation. A copy was sent to plaintiff on September 22, 1995. On October 1, 1995, plaintiff wrote Cagle and objected to the recommendations that he attend sex offender treatment and denier's programs.

Following the August 29, 1995 program review committee hearing, plaintiff waived his right to appear at program review committee hearings on February 12, 1996, August 7, 1996, February 10, 1997, February 24, 2000, August 31, 2000 and September 21, 2000. A scheduled review was conducted in plaintiff's absence on January 14, 1999 and August 25, 1999. Since August 29, 1995, when the program review committee determined that it was necessary for plaintiff to attend sex offender treatment program or denier's program, the committee has never changed its assessment. The committee has never recommended that plaintiff's security classification be lowered from medium to minimum and defendant Puckett has never made a decision to lower plaintiff's security classification.

On October 1, 1997, the state of Wisconsin dismissed a Chapter 980 proceeding against plaintiff because it did not believe it could prove that plaintiff was a proper subject of such a proceeding. (Chapter 980 applies to civil commitments of sexually violent persons.) On October 5, 1999, the director of the Bureau of Offender Programs for the Wisconsin Department of Corrections indicated in a letter to the clerk of the Circuit Court for Rock County that the department was evaluating plaintiff again to determine his eligibility for civil commitment under Chapter 980 as a sexually violent person.

On October 28, 1997, plaintiff was paroled. On June 17, 1998, his parole was revoked because 1) plaintiff failed to tell his new landlord that he had been convicted of first degree attempted murder; 2) he failed to inform the landlord that he was on parole; 3) he failed to admit that he had sexually assaulted the woman he had tried to murder; and 4) he lied to his parole agent about the sex of the person living upstairs from his apartment. Plaintiff forfeited fifteen years of good time credit as a consequence of the parole revocation. On December 16, 1998, he waived his right to a parole hearing scheduled for January 1999. On November 20, 1999, he reapplied for parole consideration. On March 9, 2000, he received a parole hearing and was denied parole. The parole commission stated its reasons for denying plaintiff parole:

You refuse or deny the need for sex offender treatment. You are an untreated offender and will be retained until you complete essential programming. Although the charge of 1st degree sexual assault was dismissed, the behavior still occurred and you are held accountable for completing the treatment program.

OPINION

The initial question is whether Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars plaintiff from bringing a suit for damages under 42 U.S.C. § 1983 because his claim implicates the validity of his parole revocation and current imprisonment. In Heck, the Court held that

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make...