Olzinski v. Maciona
| Decision Date | 07 June 1989 |
| Docket Number | No. 88-C-479.,88-C-479. |
| Citation | 714 F. Supp. 401 |
| Parties | Joseph OLZINSKI, Plaintiff, v. Rita MACIONA, David Schneider, Ureal Jordan, and Michael Sullivan, individually and as Agents of the Department of Health & Social Services, Division of Corrections, and Timothy Cullen, Secretary of Department of Health and Social Services, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
William A. Pangman, Waukesha, Wis., for plaintiff.
Daniel S. Farwell, Asst. Atty. Gen., Madison, Wis., for defendants.
DECISION AND ORDER
Joseph Olzinski has commenced the above-captioned action against four agents of the Wisconsin Department of Health & Social Services, Division of Correction, Bureau of Community Corrections1 and Timothy Cullen, former Secretary of the Department of Health and Social Services,2 pursuant to 42 U.S.C. § 1983, claiming that the defendants violated his rights guaranteed by the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution when he was arrested and detained for five days for an alleged probation violation. The plaintiff is suing the defendants in their official and individual capacities and is seeking:
The defendants answered, denying liability and asserting the defenses of immunity and preclusion. After the deadline for the completion of all discovery of fact witnesses had passed, the parties filed cross motions for summary judgment. These motions are now fully briefed and ready for decision.
In connection with their motions the plaintiff and the defendants submitted proposed findings of fact. The undisputed facts, as compiled from both sides, are:
1. Plaintiff, Joseph Olzinski is an adult resident of Milwaukee County. On August 25, 1987, plaintiff was divorced from his ex-wife, Patricia.
2. On December 2, 1987, plaintiff was arrested for breaking into his ex-wife's residence and engaging in assaultive and disorderly conduct. Plaintiff was charged with violating section 943.14 of the Wisconsin Statutes () and section 904.01 of the Wisconsin Statutes (disorderly conduct).
3. On September 9, 1987, Milwaukee County Circuit Judge Arlene Connors enjoined plaintiff from having any contact with his ex-wife.
4. On December 9, 1987, plaintiff was convicted of the charges (criminal trespass to dwelling and disorderly conduct) in Milwaukee County Circuit Court, the Honorable Marvin C. Holz, presiding. Judge Holz placed plaintiff on eighteen months probation, ordered him to pay $50 in restitution and also ordered him to have no contact with the victim (his ex-wife).
5. Pursuant to the probation order, plaintiff was assigned to the supervision of Agent Daniel King of the Milwaukee Division of the Department of Corrections. On January 21, 1988, plaintiff met with Agent King for the first time.
6. Mr. King provided plaintiff with the Department of Corrections rules of supervision and orally explained what would be expected of him during the period of his probation. Agent King never informed plaintiff that a letter to a third party regarding his ex-wife would constitute a violation of either the rules of supervision or the court ordered provisions of his probation.
7. Sometime in January, 1988, plaintiff sent a letter to his ex-wife's employer, the Zablocki Medical Center. The undated letter stated that:
8. On February 15, 1988, plaintiff's letter came to the attention of defendant David Schneider, who is a supervisor in the Department of Health and Social Services Probation and Parole Office located at 1713 South Sixth Street in the city of Milwaukee, Wisconsin. Defendant Schneider was the supervisor of probation agent Daniel King who up to that time had been plaintiff's probation agent. Agent King had recently gone on medical leave.
9. Defendant Schneider spoke with plaintiff's ex-wife, Patricia Olzinski, and concluded that she was frightened of plaintiff and was concerned that plaintiff might do something to her and her son.
10. Defendant Schneider assigned plaintiff's case file to defendant Rita Maciona who at that time was working as a probation and parole officer in the Sixth Street office. Defendant Schneider asked defendant Maciona to investigate the incident.
11. No one from the Department of Corrections contacted the Zablocki Medical Center to see if anyone there had received the letter.
12. On February 15, 1988, Agent Maciona placed a telephone call to plaintiff's house and spoke to Peggy Allen, a friend of Mr. Olzinski's. Agent Maciona directed Peggy Allen to tell Mr. Olzinski to contact her.
13. On February 15, 1988, Agent Maciona sent out a letter to plaintiff's home address advising him that he was currently in violation of his probation status and that it would be necessary for him to report to the probation office. The letter further stated that he should report on February 22, 1988, at 10:30 a.m. and warned that failure to report would result in issuance of a warrant for his arrest.
14. Defendant Maciona had determined that plaintiff's letter constituted a possible parole violation and that she was also concerned about plaintiff's ex-wife's safety.
15. Defendant Maciona, with defendant Schneider's approval, issued an apprehension request directing a law enforcement officer to take plaintiff into custody on what is called a probation hold.
16. On the morning of February 16, 1988, plaintiff contacted Agent Maciona in response to her phone call of February 15, 1988, and set up an appointment to meet with her on February 19, 1988.
17. On February 17, 1988, plaintiff received the February 15, 1988 letter which Agent Maciona had written ordering him to report.
18. On February 17, 1988, plaintiff contacted Agent Maciona by telephone.
19. As a result of this phone conversation, the parties agreed to meet at 5:00 p.m. on Thursday, February 18, 1988, at the Milwaukee office of the Probation and Parole Department, at 1713 South Sixth Street in the City of Milwaukee, Wisconsin.
20. On February 18, 1988, Agent Maciona spoke with Patricia Olzinski for the first time. As a result of this conversation, she learned of the temporary restraining order which Judge Connors had ordered.
21. On February 18, 1988, at approximately 1:45 p.m., plaintiff was arrested at his place of employment by officers of the Town of Butler Police Department. The officers' authority for the arrest was the apprehension request issued by Agent Maciona.
22. The officers transported plaintiff to the Waukesha County Jail where he was incarcerated.
23. On February 19, 1988, plaintiff was brought before the Waukesha County Circuit Court, the Honorable Willis Zick, Circuit Judge, presiding, on a writ of habeas corpus. Plaintiff was represented by Attorney William Pangman. Defendant Maciona appeared as a witness and was subjected to cross-examination by plaintiff's attorney. Judge Zick found that plaintiff's apprehension and detention were lawful and dismissed the writ. Plaintiff did not appeal Judge Zick's decision.
24. Defendant Maciona visited plaintiff in the Waukesha County Jail on February 23, 1988. After discussing the incident with the plaintiff and taking his statement, she authorized his release from custody. See Proposed Findings of Fact (filed by the defendants on February 15, 1989) (citations omitted); Proposed Findings of Fact (filed by plaintiff on February 16, 1989) (citations omitted).
Under Federal Rule of Civil Procedure 56(c), parties moving for summary judgment must show that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving parties are entitled to a judgment as a matter of law. See Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); McGraw-Edison Company v. Walt Disney Productions...
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Parham v. Lamar
...failed to identify any fundamental right implicitly guaranteed by the Ninth Amendment that a defendant has abridged. Olzinski v. Maciona, 714 F.Supp. 401 (E.D.Wis.1989). Since Plaintiff has neglected to state what right has been abridged, this Court is constrained not to recognize that a Ni......