Sabo v. Hicks, Case No. 20-CV-718

• Decision Date: 12 November 2020
• Docket Number: Case No. 20-CV-718
• Parties: JOHN SABO, Plaintiff, v. SHERI HICKS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

JOHN SABO, Plaintiff, v. SHERI HICKS, et al., Defendants.

Case No. 20-CV-718

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

November 12, 2020

DECISION AND ORDER

1. Facts and Procedural History

It is undisputed that a Fond du Lac county circuit court judge sentenced John Sabo to a term of probation in excess of the statutory maximum. (ECF No. 16 at 1.) The judge, of course, is immune from liability for his error, Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 290 (1991), and Sabo does not allege otherwise. Rather, Sabo alleges that various employees of the Department of Corrections are liable for not having recognized and corrected the judge's error sooner than they did.

According to the amended complaint that Sabo filed in this court, he was sentenced on November 30, 2004, by the Fond du Lac County Circuit Court to three years in prison and two years on extended supervision. (ECF No. 10, ¶¶ 401-02.) The court stayed that sentence and placed Sabo on probation for five years. (ECF No. 10, ¶ 402.) However, under the law in force at the time of the crime, the maximum term of probation the court could impose was three years. (ECF No. 10, ¶ 405.) Because the court ordered Sabo's sentence to run consecutively to any other sentence, Sabo did not begin serving his sentence until July 20, 2014. (ECF No. 10, ¶ 423.)

Debra Haley and Sheri Hicks were employees of the Wisconsin Department of Corrections' Central Records Bureau who, at the time of Sabo's sentence, reviewed each judgment of conviction of people placed on probation. (ECF No. 10, ¶ 407.) If either found that a probation term ordered for a particular probationer was unlawfully long, she would cross out the unlawful probation term, write in the maximum lawful term, make two copies of the judgment of conviction, retain one copy with the Central Records Bureau, and send the other copy to the probationer's supervising probation agent. (ECF No. 10, ¶¶ 412-15.) At the time Sabo was sentenced to probation, Haley and Hicks misunderstood how to calculate the maximum length of probationary sentences for felonies. (ECF No. 10, ¶ 417.) When they learned of their misunderstanding in 2005, they did not go back and review the judgments that they had previously processed to determine whether any of them were unlawfully long. (ECF No. 10, ¶ 420.)

Sabo's probation, having commenced on July 30, 2014, should have concluded three years later, in July of 2017. (ECF No. 10, ¶¶ 423-24.)

On December 21, 2017, Sabo was arrested and charged with a misdemeanor. (ECF No. 10, ¶ 445.) Although the court in the misdemeanor action had granted him release on a signature bond, Sabo remained in custody pursuant to a probation hold. (ECF No. 10, ¶¶ 445-47.) Sabo's supervising probation officer, Megan Erickson, and her supervisor, Barb Hanson, recommended that Sabo's probation be revoked and that he remain in custody pending revocation. (ECF No. 10, ¶ 447-48.)

While incarcerated Sabo learned that his probation sentence was unlawfully long. (ECF No. 10, ¶ 454.) He attempted to contact Erickson, but she refused to come see him. (ECF No. 10, ¶ 455.) Sabo's fiancé also attempted to contact Erickson, but Erickson never returned her calls. (ECF No. 10, ¶ 456.) It was not until April 13, 2018, in response to an inquiry from Sabo's attorney, that Erickson confirmed that the maximum term of probation to which Sabo could have been sentenced was three years. (ECF No. 10, ¶ 458.) After contacting Advanced Corrections Sentencing Associate Janelle Nehring and confirming that the maximum term of probation was three years, Erickson advised Sabo's attorney to petition the court to correct the sentence. (ECF No. 10, ¶¶ 457-60.) Sabo remained in custody until May 3, 2018. (ECF No. 10, ¶ 460.)

Sabo alleges that, by subjecting him to an unlawfully long term of probation and holding him in custody for a portion of that time, the defendants violated his constitutional rights regarding due process, unlawful seizure, and cruel and unusualpunishment. (ECF No. 10, ¶¶ 501-07.) He also alleges that the defendants were negligent. (ECF No. 10, ¶¶ 508-09.)

Specifically, Sabo alleges that Hicks and Haley

• violated his "right to be free from cruel and unusual punishment, in violation of Eight [sic] Amendment to the United States Constitution, and deprived [him] of his liberty without due process of law, in violation of Fourteenth Amendment to the United States Constitution, when, as a result of their deliberate indifference they failed to take any steps to correct his patently illegally long term of probation, after they realized in 2005, that they had incorrectly analyzed judgments of conviction in 2004, resulting in his spending 291 days being supervised beyond the legal termination of his period of probation, 133 days of which he was held in jail" (ECF No. 10, ¶ 501); and

• "were negligent in failing to ascertain and/or to take steps to correct the patent illegality of John Sabo's term of probation" (ECF No. 10, ¶ 509).

He alleges that Erickson and Hanson

• violated his "right to be free from cruel and unusual punishment, in violation of Eight [sic] Amendment to the United States Constitution, as a result of their deliberate indifference, when they restrained his liberty by continuing to limit and supervise his activities as conditions of probation, during a period of some 291 days beyond the date at which the law required his probation to terminate" (ECF No. 10, ¶ 502);

• violated his "right to be free from cruel and unusual punishment, in violation of the Eight [sic] Amendment to the United States Constitution" "[b]y recommending detention of the Plaintiff at the Racine County Jail at a time when he should have completed his probation" (ECF No. 10, ¶ 504);

• deprived him "of his liberty without due process of law, in violation of the Fourteenth Amendment to the United States Constitution" "[b]y unlawfully recommending detention of the Plaintiff at the Racine County Jail at a time when he should have completed his probation" (ECF No. 10, ¶ 505);

• "exhibited deliberate indifference and violated [his] right to be free from cruel and unusual punishment, in violation of the Eight [sic] Amendment to theUnited States Constitution" "[b]y failing to take steps to free [him] from detention at the Racine County Jail after the date on which they were notified that his term of probation was unlawfully long" (ECF No. 10, ¶ 506); and

• "effected an objectively unreasonable seizure of Mr. Sabo, in violation of the Fourth Amendment to the United States Constitution" "[b]y failing to take steps to free [him] from detention at the Racine County Jail after the date on which they were notified that his term of probation was unlawfully long" (ECF No. 10, ¶ 507).

Sabo also alleges that Hicks, Erickson, and Hanson deprived him "of his liberty without due process of law, in violation of Fourteenth Amendment to the United States Constitution, when they restrained [his] liberty, by continuing to limit and supervise his activities as conditions of probation, during a period of some 291 days beyond the date at which the law required probation to terminate." (ECF No. 10 at ¶ 503.)

Finally, he alleges that Erickson, Hanson, and Nehring "were negligent in failing to ascertain and/or to take steps to correct the patent illegality of [his] term of probation." (ECF No. 10, ¶ 509.)

All defendants have moved to dismiss the amended complaint (ECF Nos. 6, 11, 14; see also ECF No. 7 (brief in support)), although they have done so in a convoluted way. Hicks, Erickson, Hanson, and Nehring initially moved to dismiss the complaint on July 29, 2020. (ECF No. 6.) Accompanying that motion was a brief in support. (ECF No. 7.) On August 17, 2020, Sabo filed an amended complaint adding Debra Haley as a defendant (ECF No. 10), mooting the defendants' motion to dismiss. The following day, Erickson, Hanson, Hicks, and Nehring filed a renewed motion to dismiss. (ECF No. 11.) They didnot file a new brief but instead relied on their prior brief. (ECF No. 11.) Sabo responded to the renewed motion to dismiss on September 8, 2020. (ECF No. 12.) On September 22, 2020, Haley filed a document captioned, "Defendant Debra Haley's Motion Joining Co-Defendants' Motion to Dismiss," but docketed it as "Motion to Dismiss by All Defendants." (ECF No. 14.) In her motion Haley asserts that "Plaintiff's claims against Defendant Debra Haley are the same as those against Defendant Hicks" and, therefore, she "joins in, and incorporates by reference, all of Defendant Hicks's arguments for dismissal of the Amended Complaint." (ECF No. 14.)

If Sabo disagreed as to the similarity of his claims against Haley and Hicks or had any arguments specific to Haley, he had 21 days in which to respond to Haley's motion. See Civ. L.R. 7(b). He has not done so. On September 22, 2020, the defendants submitted a reply in support of their motions to dismiss. (ECF No. 16.)

Although all parties to the initial complaint consented to the full jurisdiction of this court (ECF No. 3, 8), Haley failed to timely file her own consent form. Following a reminder from the Clerk, Haley has now consented, and the defendants' motions are ready for resolution.

2. Motion to Dismiss Standard

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 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." Iqbal, 556 U.S. at 678. A claim satisfies this pleading standard when its factual allegations "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56. The court accepts "all well-pleaded facts as true and constru[es] all inferences in favor of the plaintiffs....