Weinberger v. State of Wis.
| Decision Date | 31 January 1997 |
| Docket Number | No. 95-3398,95-3398 |
| Parties | Aaron D. WEINBERGER, as administrator of the Estate of Jeremiah Benjamin Weinberger, Aaron David Weinberger, as father of Jeremiah Benjamin Weinberger, Plaintiff-Appellant, v. STATE OF WISCONSIN, Donna Chester, Probation Officer and as yet unnamed probation officers and employees, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frederick F. Cohn (argued), Chicago, IL, for Plaintiff-Appellant.
James E. Doyle, Michael Losse (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.
Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
Jeremiah Benjamin Weinberger was murdered by Jeffrey Dahmer. Aaron David Weinberger, the father of Jeremiah Weinberger and administrator of his estate, brought this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 against the State of Wisconsin, Dahmer's probation officer Donna Chester, and other unnamed probation officers and employees. Mr. Weinberger alleged that the defendants acted unreasonably, in a grossly negligent manner, and with reckless disregard for the safety of persons in the class of Dahmer's abuse victims by mismanaging Dahmer's supervision. The district court granted the defendants' summary judgment motion; it also dismissed the claim against the unnamed state officers. Mr. Weinberger now appeals. For the reasons that follow, we affirm the judgment of the district court.
On or about July 6, 1991, Jeremiah Benjamin Weinberger was murdered by Jeffrey Dahmer. Jeremiah's father, the administrator of his son's estate, alleges that the conduct of the defendants in supervising the probation of Jeffrey Dahmer caused and precipitated Dahmer's murderous act. His central allegation is that the defendants "violated their own rules and procedures for supervising criminals under order of probation, in not visiting the apartment or residence of Jeffrey Dahmer as they had an obligation to do while he was on probation." R.27 para. 3. As a result, Mr. Weinberger alleges, Dahmer was encouraged to commit murderous acts, including the murder of plaintiff's son.
Mr. Weinberger focuses on the conduct of Dahmer's probation officer, Donna Chester. Donna Chester, a probation and parole agent for the State of Wisconsin, assumed that position on January 9, 1990. After initial agent's training, she was placed in the Sex Offender Unit in Milwaukee. On March 9, 1990, Officer Chester was assigned the caseload of a departing agent. One of the 121 active cases was the case of Jeffrey Dahmer. Dahmer had been convicted of second degree sexual assault and of enticing a child for immoral purposes; the victim was a thirteen year-old boy. For these crimes, he had been sentenced, on May 24, 1989, to one year in the Milwaukee House of Correction (with work release privileges) and to five years of probation. Dahmer's probation required alcohol treatment and forbad contact with anyone under the age of 18.
Officer Chester met with Dahmer from the time of his release in late March or April 1990 until July 18, 1991. After that date, he was arrested and his probation revoked. During the time that she supervised Dahmer, Officer Chester met with him approximately twice a month. Her bimonthly appointments with Dahmer lasted from 10 minutes to 1 hour, usually for more than half an hour. She stated in her affidavit that she "tended to spend more time in counseling with Dahmer than average for [her] clients." R.10 para. 10. They discussed such concerns as his sexual orientation, money difficulties, bankruptcy considerations, holidays with his father and brother, fears about the dangerousness of his neighborhood, and depression. As the district court set forth in detail, see Weinberger v. Wisconsin, 906 F.Supp. 485 (W.D.Wis.1995), Officer Chester arranged his enrollment in an out-patient alcohol treatment program at the DePaul Rehabilitation Hospital, which lasted from May 22 to November 10, 1990. Dahmer met the DePaul counselor from one to three times a week and had access to a psychiatrist and psychologist. The counselor reported regularly to Officer Chester that Dahmer was fully cooperative and seemed to be making progress. Officer Chester also arranged for Dahmer to be seen in the probation office's clinical services program, which included appointments with a psychiatrist, and in the Milwaukee Mental Health Complex. She referred him to money management agencies and monitored his progress, but left him to take some initiative and responsibility by carrying through on the first contacts she made. She later referred him to a support group for gay men at the Counseling Center. However, her attempt to enroll Dahmer in a sex offender treatment program failed; he was rejected because his crime did not fit the typical scenario of the child molester.
Dahmer was a compliant client, "one of the most cooperative clients [Officer Chester] ever worked with." R.10 para. 17. He was employed at the Ambrosia Chocolate Company nearly the entire time Officer Chester was in contact with him. He created almost no problems; he missed or was late for only one or two appointments and his urine tests were always negative for alcohol. 1 When Officer Chester believed it was necessary to have an assessment of Dahmer, she ordered him to go for an evaluation. In October 1990, the probation officer arranged for Dahmer to see a psychiatrist at DePaul. As usual, he complied, but told Officer Chester that he could not afford the antidepressant medication prescribed. She then advised him concerning his money-spending habits, his lack of priorities and negative attitude. However, after her May 13, 1991 appointment with Dahmer, in which he told her of a strangling in his apartment complex and his desire to move from there, she did more than advise him: She contacted the ABC Budget Company for him.
On May 27, 1991, Officer Chester arranged an evaluation of Dahmer with a consulting psychiatrist, Dr. Crowley. The assessment revealed no serious mental disorder, no indication of dangerousness to himself or others, and no suggestion that she should spend additional effort with Dahmer. Dahmer continued to see Dr. Crowley; at his July 8 appointment with Officer Chester, Dahmer told her that he was making progress with the psychiatrist. Nevertheless, he reported a concern that he might be fired for missing work and talked about suicide. Officer Chester counseled him regarding his employment problem; however, because he seemed fully functional, she believed she did not have grounds to seek commitment or otherwise to detain him.
Dahmer missed his July 10 appointment with Dr. Crowley and did not immediately notify Officer Chester about this lapse. When he called Officer Chester on July 16 to tell her that he had lost his job two days before and that he was depressed and drinking beer, she ordered him to report to her office as soon as possible and made an appointment for him to see Dr. Crowley the same day. Dahmer called Officer Chester to tell her that he had slept through his appointment with Dr. Crowley; however, he did report to Officer Chester's office on July 18 and again talked about committing suicide. Officer Chester counseled him concerning his employment problems and called the Salvation Army to assist him with food and shelter. Dahmer then went to his make-up appointment with Dr. Crowley that day. Dr. Crowley's progress notes indicated that Dahmer had been feeling better before he was terminated from his job. The physician prescribed a medication for anxiety and advised Dahmer to return in a week. He did not recommend that Officer Chester supervise Dahmer more closely or take any other actions.
On July 23, 1991, Officer Chester was informed that Dahmer had been arrested the day before for various homicides. In her affidavit, the probation officer states: "Up to this point in time I had no legitimate or lawful grounds under departmental policies and rules to take Dahmer into custody or to revoke his probation." R.10 para. 40. After Dahmer's arrest, Officer Chester learned, for the first time, that he had violated his parole by failing to report a contact with the police on May 27, 1991 and by making an unauthorized trip to Chicago on June 30, 1991. These two violations were the basis for the revocation of Dahmer's parole. Officer Chester also stated that she "never had any grounds to take any disciplinary action against Dahmer or to suspect that home visits would have been of material benefit in his supervision." Id. para. 42.
Officer Chester did not make any home visits to Dahmer. She requested permission to forego these visitations from her supervisor and received the requisite permission.
The district court granted the motion for summary judgment filed by the State of Wisconsin and Donna Chester. Weinberger v. Wisconsin, 906 F.Supp. 485, 494 (W.D.Wis.1995). It held that the state was immune from suit, id. at 488, and that Officer Chester also shared that immunity insofar as she was sued in her official capacity. The claims brought under §§ 1985 and 1986 were dismissed for failure to state any facts that would support such a claim. The district court also dismissed the case against the unnamed defendants for failure to make timely identification of them. Id. at 494.
The court then turned to the allegation that, in her individual capacity, Officer Chester had deprived plaintiff's son of due process of law by her failure to make home visits. In determining that this claim must fail, the court first held that Mr. Weinberger had not established the basic causal premise that his son would not have been killed if Dahmer had not had the privacy of his apartment and the knowledge that he would not have been interrupted by a visit from his probation officer. In this regard, Mr. Weinberger...
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