Hollins v. Wiersma

EMON V. HOLLINS, Plaintiff, v. LANCE WIERSMA, NOBLE WRAY, TOM WOODMANSEE, CORY NELSON,SAMANTHA KELLOGG, PAIGE VALENTA, CITY OF MADISON, ISMAEL OZANNE,RITA RUMBELOW, ANGELA JONES, LINDA KETCHAM, BARBARA McKINNEY,MARK MELLINTHIN, PAUL REED, LISA SIEGEL,WILLIAM BAUDHUIN, and JAY LENGFELD, Defendants.

17-cv-738-jdp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

May 29, 2020

OPINION and ORDER

Plaintiff Emon V. Hollins, appearing pro se, is an inmate at Waupun Correctional Institution. Before his incarceration, he was selected for the Madison Police Department's "focused deterrence program" designed to reduce recidivism among violent repeat offenders in the city.

Officials from local, state, and federal governments and community organizations coordinated to select participants in the program. Hollins contends that these officials violated his right to due process by not letting him contest his selection, and that they violated his right to equal protection by racially discriminatory selection and by singling out Hollins in particular. He also contends that Madison officials defamed him by spreading false information about him.

Three groups of defendants have filed motions for summary judgment, all of which I will grant. Hollins fails to show that his due process or equal protection rights were violated by the defendants, and some defendants are entitled to qualified immunity.

A group of federal-employee defendants have filed a motion to dismiss the complaint, which I will deny because I can't decide the matter on the pleadings alone. And a group of state-employee defendants have not yet filed a dispositive motion. But my summary judgment analysis of Hollins' claims will almost certainly apply to the federal and state defendants as well. So I will direct Hollins to show cause why I should not dismiss the claims against those defendants, too.

PRELIMINARY MATTERS

The case is complex because a number of governments and community organizations collaborated in selecting participants for the focused deterrence program. And each group of defendants has a slightly different status in the case. At this point, the defendants have filed the following dispositive motions:

• A motion to dismiss filed by defendants Rita Rumbelow, Paul Reed, Lisa Siegel, and William Baudhuin (the "federal defendants"), Dkt. 87.

• A motion for summary judgment filed by defendants Noble Wray, Tom Woodmansee, Cory Nelson, Samantha Kellogg, Paige Valenta, Jay Lengfeld, and the City of Madison (the "city defendants"), Dkt. 117.

• A motion for summary judgment filed by defendant Angela Jones of the United Way of Dane County, Dkt. 113.

• A motion for summary judgment filed by Linda Ketcham and Barbara McKinney of the Madison-area Urban Ministry, Dkt. 127.

Defendants Ismael Ozanne, Mark Mellinthin, and Lance Wiersma, who I'll refer to as the "state defendants," have not yet filed a dispositive motion, although the claims against them are closely intertwined with the claims discussed in the dispositive motions filed by the other defendant groups. The court stayed the dispositive motions deadline pending a ruling onproposed amendments to the complaint, but the parties were directed to finish briefing the dispositive motions that had already been filed. Dkt. 133.

A. Hollins's claims

Hollins brings the following claims:

• Race-based equal protection claims for being selected to the focused deterrence program because he was black, instead of white candidates who had more serious criminal records than him.

• "Class of one" equal protection claims for being selected to the program instead of others, regardless of race, who had more serious criminal records than him.

• Due process claims for having his reputation harmed and his legal rights altered because of his selection to the program, without him being given an opportunity to clear his name.

• Wisconsin-law defamation claims against the City of Madison for spreading false information about him and his criminal record, including publishing an article on the city's website stating that he might be the first program member to be sent back to prison.

The city defendants contend that Hollins failed to timely file a notice of claim under Wis. Stat. § 893.80 about the alleged defamation. Hollins concedes that the defamation claims should be dismissed. So I will grant the city defendants' motion for summary judgment on those claims.

B. Non-dispositive motions

The parties have also filed a number of non-dispositive motions.

Hollins filed a motion for extension of time to respond to defendants' summary judgment motions because of lack of access to the prison law library, Dkt. 136, and he soon followed with his opposition materials. I'll grant his motion for extension of time. After the city defendants included more detailed information about individual program candidates in their summary judgment reply brief, I granted Hollins's motion to file a sur-reply, See Dkt. 176.Hollins filed a motion for a one-day extension of time to file his sur-reply materials, again because of law-library troubles, Dkt. 179, and he filed those materials the next day. I'll grant that motion for an extension of time.

The city defendants filed a motion for Hollins to correct citations to exhibit numbers in his summary judgment response because citations to some of the exhibits appeared to be misnumbered. Dkt. 144. Defendants Ketcham and McKinney filed a motion to join in that motion. Dkt. 145. Hollins followed with corrected versions of his materials, Dkt. 149-154, so I'll deny defendants' motions as moot.

In part in response to the federal defendants' motion to dismiss, Hollins filed two proposed amended complaints, Dkt. 99 and Dkt. 100, which I'll construe as including motions for leave to amend the complaint. He says that the purposes of the complaint at Dkt. 99 are to (1) add parallel claims against the federal defendants under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); and (2) replace state probation supervisor defendant Lance Wiersma with supervisor Art Thurmer. Hollins says that his complaint at Dkt. 100 fixes his omission of defendant McKinney in Dkt. 99.

For reasons explained further below, Hollins's amendments are likely immaterial to the outcome of the case, so I'll deny his motions for leave to amend the complaint. Should any of his claims survive my order to show cause, I'll consider allowing Hollins to amend his complaint. Hollins also filed a motion to stay a decision on defendants' various summary judgment motions pending a ruling on his amended complaints and on the federal defendants' motion to dismiss. Dkt. 183. I'll deny Hollins's motion because all of the pending motions can be decided in this order.

Hollins has filed a motion in limine asking me to bar defendants from using their version of "candidate summary" forms at trial because he can prove that the city defendants fabricated them; he was given a different version of his form than what defendants provided the court. See Dkt. 174. I'll discuss the dispute over the different versions of these documents below. I'll deny the motion in limine because it's premature to consider trial exhibits.

C. Federal defendants' motion to dismiss

The federal defendants were the four federal-government members of the committee that selected Hollins to participate in the focused deterrence program. I granted Hollins leave to proceed on equal protection and due process claims under 42 U.S.C. § 1983 against these four defendants and the other members of the selection committee. The federal defendants have filed a motion to dismiss those claims in part because, as federal employees, they cannot be subject to liability under § 1983. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

As stated above, Hollins responded in part by asking to amend his complaint to instead seek parallel constitutional claims against the federal defendants under Bivens. See Dkt. 99 and Dkt. 100. The federal defendants argue that the limited scope of Bivens should not be extended to these types of discrimination and due process claims.

The federal defendants are likely correct that it would not be appropriate to extend Bivens to the claims raised by Hollins. See Abbasi, 137 S. Ct. at 1857, 1859-60 (stating that expanding Bivens to new contexts is "disfavored judicial activity," and concluding that federal courts should not expand Bivens actions to reach "new contexts" unless "special factors" counsel otherwise). But that doesn't resolve these claims. Hollins alleges that the federal defendants assisted local and state officials in violating his rights through his selection to the city's focused deterrence program. So there is a plausible basis for saying that the federal defendants wereacting under color of state law. See Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754 (1980) ("[W]hen federal officials are engaged in a conspiracy with state officials to deprive constitutional rights, the state officials provide the requisite state action to make the entire conspiracy actionable under section 1983.").

I won't dismiss the claims against the federal defendants under the theory that they are not subject to liability under § 1983. They otherwise make arguments to dismiss the case that are essentially motions for reconsideration of my screening orders granting Hollins leave to proceed on his claims against them. Nothing in the motion to dismiss persuades me that Hollins failed to properly plead his claims. So I'll deny the motion to dismiss.

MOTIONS FOR SUMMARY JUDGMENT

A. Undisputed facts

Except where noted, the following facts are undisputed.

Plaintiff Emon V. Hollins is an inmate currently confined at Waupun Correctional Institution. This case is about Hollins's involvement in the City of Madison Police Department's focused deterrence program.

1. Creation of Madison's focused deterrence program

In 2...