Opinion

Brown v. Arndt

Court: District Court, E.D. Wisconsin
Filed: Mar 13, 2020
Cited by: 0 cases
Authority: More cited than 32.5%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JIMMIE LEE BROWN,

Plaintiff,

v. Case No. 18-C-0037

JENNIFER ARNDT and

RICHARD GINKOWSKI,

Defendants.

______________________________________________________________________

DECISION AND ORDER

Jimmie Lee Brown, proceeding pro se, brought this action under 42 U.S.C.

§ 1983 alleging that he was wrongly arrested and detained for—and eventually

convicted of—failing to register as a sex offender in Wisconsin. Before me now are the

parties’ cross motions for summary judgment and several related motions

I. BACKGROUND

In 1987, Brown was convicted of aggravated criminal sexual abuse in Lake

County, Illinois. He was released on parole on January 6, 1995. In 1996, the Illinois Sex

Offender Registration Act took effect. Brown concedes that the Act applied to him and

required him to register as a sex offender in Illinois for a period of ten years following his

release on parole, that is, until January 6, 2005. Brown registered in Illinois in 1996 and

1998. After 1998, he stopped registering in Illinois. Brown contends that this is because

he left Illinois in May 1998. See Pl. Resp. to Def. Prop. Findings of Fact (“PFOF”) ¶ 7,

ECF No. 27.

In 1999, the Illinois Sex Offender Registration Act was amended to provide that if

a person subject to the Act fails to register as required, the person’s registration period

is extended until 10 years from the date that the person cures the violation. See Aff. of

Tracie Newton ¶ 9, ECF No. 1010; see also 730 Ill. Comp. Stat. § 150/7. In 1999, the

Illinois State Police (the agency responsible for maintaining the registry) determined that

Brown fell out of compliance with the Act. See Letter from Tracie Newton, August 14,

2015, at 1; ECF No. 19-1 at p. 3 of 6.1 According to that agency, “[a] non-compliant

registrant in Illinois has no ending registration date until the person becomes compliant.”

Id.

At around this time, Brown came to Wisconsin and committed crimes here. In

2010, while he was released on supervision for his Wisconsin crimes, Brown’s

supervising agent told him that because he was required to register as a sex offender in

Illinois, he was also required to register in Wisconsin. The agent’s insistence that Brown

required to register in Wisconsin if the person “is registered as a sex offender in another

state.” Brown protested, telling his agent that his requirement to register in Illinois ended

in 2005.

In April 2010, defendant Jennifer Arndt, a Registry Specialist with the Wisconsin

Department of Corrections, concluded that Brown was required to register in Illinois until

April 15, 2020. Brown disputes that the Illinois registry reflected that he had a duty to

duty to register at the time Arndt checked it in 2010, but it did not also show that the

1 Newton’s letter has not been properly authenticated and is hearsay. However, I do not

understand either party to be disputing the facts recounted in her letter. Accordingly, I

will consider the letter’s contents in the course of deciding the present motions.

duty would last until 2020. Arndt does not remember exactly how she determined that

Brown’s duty to register lasted until 2020, but she states that her practice was to either

call the Illinois State Police or obtain information from its website. See Decl. of Jennifer

Arndt ¶¶ 6, 15–16. Brown contends that Arndt simply fabricated the April 15, 2020 date.

However, it is obvious that Arndt picked the date by adding 10 years to the date that she

checked the Illinois registry and learned that Brown was required to register but was

non-compliant. Arndt’s records show that she checked the registry on April 14, 2010.

See Ex. 1000 at 4, ECF No. 24-1 at p. 4 of 4. Because Illinois listed Brown as non-

compliant as of that date, and because under Illinois law Brown’s duty to register would

have lasted until 10 years from the date that he cured his non-compliance, Arndt likely

concluded that Brown’s duty to register would last at least 10 years from the date that

she checked the registry. Technically, as of April 14, 2010, Brown had no ending

registration date in Illinois because he was out of compliance. But if Arndt needed to

enter an ending date into her records, April 15, 2020 would work because Brown’s duty

to register could not possibly have ended sooner than that.

Although Brown initially failed to comply with his supervising agent’s order that he

¶ 16. In November 2011, Brown left his registered address and absconded from

supervision. Id. ¶ 17. Wisconsin requires registered sex offenders to update their

address within 10 days of moving. Brown did not update his address within 10 days and

therefore was no longer properly registered in Wisconsin.

On June 8, 2012, Brown was arrested for absconding from supervision and

detained at the Kenosha County Jail. On July 3, 2012, Brown’s supervision was

revoked, and he remained in the Kenosha County Jail. During the following few months,

the Department of Corrections repeatedly notified Brown that he was not in compliance

with the registry and demanded that he update his information. Brown admits that he

refused to comply. See Def. PFOF ¶ 24.

On October 1, 2012, Arndt asked the Kenosha County District Attorney’s Office

to bring criminal charges against Brown and arrest him for failing to comply with the

registration requirements. As part of her request, Arndt sent the D.A.’s office a

document entitled “Sex Offender Registry Non-Compliance Report.” See Ex. 1001, ECF

No. 24-2. The report stated that Brown was required to register in Wisconsin based on

his Illinois registration. It listed Brown’s “registration start date” as January 6, 1995, and

his “registration end date” as April 15, 2020. Id. The report said that Brown had moved

from his registered address and failed to update his address with the registry within 10

days. The report also explained that Brown had violated the Wisconsin registration law

by failing to annually update his address and by failing to respond to communications

from the Department of Corrections about his registration.

On October 4, 2012, Brown was released from the Kenosha County Jail.

Because his release resulted in a change of address, he was required to update his

address in the Wisconsin registry. Again, Brown failed to do so.

In December 2012, an assistant district attorney for Kenosha County, defendant

Richard Ginkowski, signed a criminal complaint alleging that Brown had committed a

crime by failing to update his Wisconsin registration. In the probable-cause section of

the complaint, Ginkowski stated as follows:

On October 4, 2012, the Kenosha County District Attorney’s Office

received documentation from Jennifer Arndt, Registry Specialist for the

Wisconsin Department of Corrections, showing that Jimmie L. Brown, the

defendant, had been non-compliant with the Sex Offender Registry

Program. The defendant was convicted of Aggravated Criminal Sexual

Abuse/Bodily Harm on January 16, 1987, in Lake County, Illinois . . . and

was required to register as a sex offender until April 15, 2020.

Ex. 1006 at 1, ECF No. 25-4. The complaint then described Brown’s failures to update

his address over the prior months.

Based on the probable cause alleged in the criminal complaint, a warrant was

issued for Brown’s arrest. See Ex. 1005, ECF No. 25-3. He was arrested on January 9,

2013. Brown was unable to post bond and thus remained in custody for the duration of

pretrial proceedings.

During the criminal case, Brown claimed that he was not required to register in

Wisconsin because his requirement to register in Illinois ended in January 2005. Trying

to prove this, Brown and his defense attorney contacted the Illinois State Police. The

State Police did not provide a prompt response. By July 2013, the State Police still had

not responded, and Brown was still being held in jail awaiting trial on the failure-to-

update charge. Around this time, the state offered Brown a plea agreement under which

he would plead guilty in exchange for a sentence of time served (172 days). Tired of the

delays, Brown accepted the plea and was sentenced to time served.

Unbeknownst to Brown, the Illinois State Police had removed him from the Illinois

registry on March 13, 2013 without telling anyone. More than two years later, on August

14, 2015, the Illinois State Police sent a letter to the investigator employed by Brown’s

defense counsel explaining what had happened. See ECF No. 19-1. According to the

letter, when defense counsel inquired into Brown’s duty to register in Illinois, the State

Police dove deeper into his file to determine whether he was still required to register. Id.

at p. 4 of 6. The agency decided that Brown was never properly notified of his duty to

in January 2005, 10 years after he was released from prison. Id. Thus, on March 13,

2013, the State Police officially removed him from the Illinois Sex Offender Registry. Id.

The State Police said that it did not notify Brown of its action because it did not have his

current mailing address. Id.

In its letter, the State Police responded to specific questions asked by the

investigator for Brown’s counsel in her original letter. The investigator had asked the

State Police to verify whether Brown “is required to register as a sex offender in Illinois

because of his Kenosha County case until April 15, 2020.” ECF No. 18-3 at p. 23 of 37.

In response, the State Police wrote that “[t]here are no records in Illinois indicating Mr.

Brown has a duty to register as a sex offender in Illinois until April 15, 2020.” Id. The

State Police then explained that if Brown were convicted of a felony offense in Kenosha,

his duty to register in Illinois would be reactivated and last for the rest of his life.

The investigator had also asked whether Brown was required to register in Illinois

in October 2012, when his alleged failure to register in Wisconsin occurred. The State

Police said that “[w]hen Mr. Brown was charged with failure to register in Wisconsin in

October 2012, at that time he was considered a non-compliant sex offender in Illinois.”

ECF No. 19-1 at p. 4 of 6. The State Police added that although he was removed from

the registry in March 2013, as of October 2012, “technically he had a duty to register in

Illinois.” Id. As of that date, Brown also “had no known ending registration date since he

was non-compliant.” Id.

In October 2015, Brown, through his defense counsel, filed a motion for

postconviction relief seeking an order vacating his sentence, withdrawing his guilty plea,

and dismissing the charge against him. The court granted the motion in February 2016.

Currently, Brown is in prison in Wisconsin based on convictions that were

obtained after he was released from jail in 2013. In January 2018, while he was

incarcerated, he commenced the present action against Arndt, Ginkowski, and others

(whom I have since dismissed) under § 1983. In screening the complaint under 28

U.S.C. § 1915A, I construed it as stating a claim for wrongful arrest and pretrial

detention under the Fourth Amendment. See Camm v. Faith, 937 F.3d 1096, 1105 (7th

Cir. 2019). The parties have filed cross motions for summary judgment on this claim. In

addition, Brown has filed a motion to appoint counsel and a motion to extend the

deadline for completing discovery, and the defendants have filed a motion to strike

Brown’s motion for summary judgment. I consider these motions below.

II. DISCUSSION

A. Cross Motions for Summary Judgment

Summary judgment is required where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). When considering a motion for summary judgment, I view the evidence in the

light most favorable to the non-moving party and must grant the motion if no reasonable

juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255

(1986).

Brown’s claim is that Arndt and Ginkowski made false statements in the criminal

complaint and warrant application in order to establish probable cause for his arrest,

detention, and criminal prosecution. More specifically, he contends that they “fabricated”

their claim that he was required to register as a sex offender in Illinois until April 15,

2020. See, e.g., Pl. Reply to Def. Mot. for Summ. J. at 1, ECF No. 28. Thus, I construe

his claim as arising under the Fourth Amendment and Franks v. Delaware, 438 U.S.

154 (1978). To prevail, Brown must prove that the defendants “intentionally or recklessly

include[d] false statements in a warrant application and [that] those false statements

were material to a finding of probable cause.” Rainsberger v. Benner, 913 F.3d 640, 647

(7th Cir. 2019).2 Here, there is no dispute that the allegedly false statement was

material to a finding of probable cause, and thus the sole issue is whether the

defendants made an intentionally or recklessly false statement in the criminal complaint.

Although Brown has sued both Arndt and Ginkowski, Arndt is the only defendant

who made the statement at issue. In the criminal complaint, Ginkowski identified Arndt

as the source of the information giving rise to probable cause and did not claim that he

independently investigated whether Brown was required to register in Illinois. Moreover,

no evidence in the record suggests that Ginkowski had reason to believe that the

information supplied by Arndt was false or otherwise untrustworthy. And under § 1983,

Ginkowski cannot be deemed vicariously liable for any constitutional violation committed

by Arndt. See, e.g., Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992). Thus,

Ginkowski is entitled to summary judgment.

2 Because Brown was convicted, he also presses a due-process claim for wrongful

conviction based on fabricated evidence. See Lewis v. City of Chicago, 914 F.3d 472,

479 (7th Cir. 2019) (citing authorities stating that convictions based on fabricated

evidence violate the defendant’s right to due process). However, because the due-

process claim involves the same basic issue as the Fourth Amendment claim—whether

the defendants fabricated their representation that the plaintiff was required to register

in Illinois until April 2020—I will not separately discuss the due-process claim.

As for Arndt, she claims that she did not fabricate her statement that Brown had

a duty to register in Illinois until April 15, 2020. Instead, she explains, her typical practice

for obtaining registration information from Illinois was to either call the Illinois State

Police Sex Offender Registration Unit or visit the Illinois Sex Offender Registration

website. Arndt Decl. ¶ 6. Understandably, Arndt does not remember which of these

methods she used to obtain information about Brown in 2010 and/or 2012. But there is

no evidence in the record from which a reasonable jury could conclude that Arndt did

not consult one of these sources before concluding that Brown was required to register

in Illinois. Arndt did not know Brown and had no apparent motive to falsify evidence

about him. Her contemporaneous records reflect that she reviewed Brown’s registration

requirements on April 14, 2010 and determined that he was required to register as of

that date. See Ex. 1000 at 4. She then concluded that Brown would have a duty to

she would have obtained information from the Illinois State Police, the agency would

have told her that Brown was required to register, was non-compliant, and would be

required to register for 10 years after he became compliant.

Brown points out that, in response to his counsel’s investigator’s inquiry, the

Illinois State Police wrote that “[t]here are no records in Illinois indicating Mr. Brown has

a duty to register as a sex offender in Illinois until April 15, 2020.” ECF No. 19-1 at p. 4

of 6. I take Brown to be suggesting that this means Arndt must have fabricated the April

15, 2020 date. But, as I have explained, at the time Arndt would have inquired about

Brown’s registration status in April 2010, Illinois records would have shown that Brown

was required to register and was non-compliant. Under Illinois law, that meant Brown

“had no known ending registration date.” ECF No. 19-1 at p. 4 of 6. Once Brown

brought himself back into compliance, Illinois would have required him to continue

registering for 10 years. See 730 Ill. Comp. Stat. 150/7. So, if Arndt made an inquiry on

April 14, 2010, she would have learned that Brown would have been required to register

in Illinois until at least April 15, 2020. That is, Arndt would have learned that Brown’s

duty to register in Illinois would have ended on April 15, 2020 if he cured his failure to

could reasonably assume that Brown would have a duty to register in Illinois until at

least April 15, 2020, even though, as far as Illinois was concerned, Brown’s duty to

new inquiry with Illinois to determine whether Brown had cured his noncompliance and

then updated her records accordingly. For these reasons, the lack of a specific record in

Illinois stating that Brown had a duty to register until April 15, 2020 is not suspicious. It

certainly does not suggest that Arndt never obtained information from Illinois and

instead fabricated her claim that Brown was required to register there until April 15,

2020.

Brown also contends that, although Arndt may have checked with Illinois in 2010,

she failed to do so again in 2012 before she sought the arrest warrant. Arndt does not

indicate whether she re-checked the registry in October 2012 before seeking the arrest

warrant. Construing the evidence in the light most favorable to Brown, I assume that

she did not. However, it would not follow that Arndt made intentionally or recklessly

false statements in the warrant application. As explained, when Arndt checked the

registry in 2010, she learned that the soonest Brown’s duty to register in Illinois could

have ended was April 15, 2020. Thus, Arndt did not need to re-check the registry in

2012 to have probable cause to believe that Brown’s duty to register lasted until April

15, 2020. And of course, had Arndt re-checked the registry in October 2012, she would

have seen that it still listed Brown as required to comply, for the Illinois State Police did

not remove him from the registry until March 2013.

Brown also contends that Arndt had a duty to determine whether the Illinois State

Police was correctly listing him as still required to register. However, Brown’s rights

could have been violated only if Arndt intentionally or recklessly made a false statement

in the warrant application. A person does not intentionally or recklessly make a false

statement by failing to double-check information provided to him or her by a reliable

source. Here, the Illinois State Police is a reliable source of information about who is

required to register in Illinois, for it is the very agency that determines who is required to

“was required to register as a sex offender [in Illinois] until April 15, 2020” even though

she did not verify that the Illinois State Police had correctly applied Illinois law.3

For these reasons, Arndt and Ginkowski are entitled to summary judgment, and

the plaintiff is not entitled to summary judgment. The defendants’ motion will be granted,

3 Indeed, it is at least arguable that Brown violated Wisconsin law by failing to register

here even though the Illinois State Police had erred in thinking that he was required to

if the person “is registered as a sex offender in another state.” Wis. Stat.

§ 301.45(1g)(f). Here, the agency responsible for the registry in Illinois registered Brown

as a sex offender in Illinois. Under Wisconsin law, this may have been sufficient to

trigger Brown’s duty to register here, even if the State Police had mistakenly required

Brown to register.

and the plaintiff’s motion will be denied. The denial of the plaintiff’s motion renders the

defendants’ motion to strike that motion moot.

B. Plaintiff’s Motion to Recruit Counsel and for an Extension of Time

Before he filed his motion for summary judgment, the plaintiff filed a motion to

recruit counsel. “When confronted with a request under [28 U.S.C.] § 1915(e)(1) for pro

bono counsel, the district court is to make the following inquiries: (1) has the indigent

plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from

doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear

competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

Here, I will assume that the plaintiff made a reasonable attempt to obtain

counsel. However, I believe that the plaintiff was competent to litigate the case himself.

The facts and legal issues were not complex, and the plaintiff ably argued his case in

his summary-judgment briefs. The plaintiff’s pro-se and incarcerated status might have

prevented him from obtaining depositions of out-of-state witnesses (such as

representatives of the Illinois State Police) or obtaining admissible documentary

evidence from such witnesses. However, I resolved this issue in the plaintiff’s favor by

considering the letters he filed from the Illinois State Police even though he did not

submit them in admissible form and even though they were hearsay. Accordingly, the

plaintiff’s motion to recruit counsel will be denied.

On June 27, 2019, nearly two months before the summary-judgment motions

were filed, the plaintiff filed a motion to extend the discovery deadline. In the motion, he

stated that his prison was on lockdown and that this made it difficult for him to obtain

copies and to have certain papers notarized. It appears that this motion may be moot,

for the plaintiff submitted his documentary evidence with his summary-judgment

materials, and I did not penalize him for submitting the materials in an inadmissible

form. In any event, I do not see any way in which additional discovery might alter the

outcome of this case, and so I will deny the motion for an extension as moot.

III. CONCLUSION

For the reasons stated, IT IS ORDERED that the defendants’ motion for

summary judgment (ECF No. 21) is GRANTED.

IT IS FURTHER ORDERED that the plaintiff’s motion for summary judgment

(ECF No. 20) is DENIED.

IT IS FURTHER ORDERED that the defendants’ motion to strike the plaintiff’s

motion for summary judgment (ECF No. 26) is DENIED as MOOT.

IT IS FURTHER ORDERED that the plaintiff’s motion to recruit counsel (ECF No.

15) is DENIED.

IT IS FURTHER ORDERED that the plaintiff’s motion for an extension of time

(ECF No. 17) is DENIED as MOOT.

FINALLY, IS IT ORDERED that the Clerk of Court enter final judgment.

This order and the judgment to follow are final. A dissatisfied party may appeal

this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court

a notice of appeal within 30 days of the entry of judgment. See Federal Rule of

Appellate Procedure 3, 4. This court may extend this deadline if a party timely requests

an extension and shows good cause or excusable neglect for not being able to meet the

30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).

Under certain circumstances, a party may ask this court to alter or amend its

judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment

under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil

Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot

extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under

Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally

no more than one year after the entry of the judgment. The court cannot extend this

deadline. See Federal Rule of Civil Procedure 6(b)(2).

A party is expected to closely review all applicable rules and determine, what, if

any, further action is appropriate in a case.

Dated at Milwaukee, Wisconsin, this 13th day of March, 2020.

s/Lynn Adelman______

LYNN ADELMAN

United States District Judge

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