Kevin Wilke v. Adam Stublaski

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 18, 2019*

Decided October 21, 2019

Before

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 19-1617

KEVIN L. WILKE, Appeal from the United States District

Plaintiff-Appellant, Court for the Western District of Wisconsin.

v. No. 14-cv-639-wmc

ADAM STUBLASKI, William M. Conley,

Defendant-Appellee. Judge.

ORDER

Kevin Wilke sued his former probation officer for violating his right to due

process by delaying a probation-revocation hearing while Wilke remained in jail. He

also sought damages from three Wisconsin judges for failing to grant him a writ of

habeas corpus. See WIS. STAT. § 782.09. Before any defendant was served, the district

court screened and dismissed the claims against the judges as barred by absolute

immunity. The court later entered summary judgment for the probation officer, also

based on absolute immunity. Because the acts about which Wilke complains were

* We agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. See FED. R. APP. P 34(a)(2)(C).

No. 19-1617 Page 2

inexorably tied to the probation officer’s quasi-prosecutorial function in the revocation

process, we affirm the judgment for the probation officer. Wisconsin law, however,

permits a civil action for statutory damages against a judge who improperly refuses to

grant a writ of habeas corpus, so we vacate the dismissals of Wilke’s claims under

§ 782.09 and remand.

In December 2012, while on probation for burglary, Wilke was arrested on

suspicion of driving under the influence of alcohol and taken to jail, where he was held

based on the new charge and the assessment of his probation officer, Adam Stublaski,

that his probation should be revoked. See WIS. ADMIN. CODE § DOC 331.05(7)(b).

Stublaski submitted a “Revocation Hearing Request” to the Wisconsin Division of

Hearings and Appeals 11 days later, in which he stated that he would be unavailable for

about a week during the holidays.

The Division initially scheduled the hearing for the first week of February 2013

but postponed it twice. First, Stublaski requested a new date because his only witness,

the officer who had arrested Wilke, could not attend. Finding this to be good cause for

delay, the administrative law judge rescheduled the hearing for March 25. See id.

§ HA 2.05(4)(b). Then, after Wilke posted bond on the new charge, a judge ordered that

he be transferred from the Marquette County Jail to the Wood County Jail, within

Stublaski’s jurisdiction, to better accommodate the revocation proceedings. Because of

the transfer, the ALJ pushed the hearing back another day.

While he waited for a hearing, Wilke petitioned three times for a writ of habeas

corpus ordering his release. Three different judges considered his petitions. The judge

who considered his first petition scheduled a hearing but then “dropped” it because of

the transfer to the Wood County Jail. Wilke then petitioned for the writ again, but the

assigned judge took no action at all. The judge who considered Wilke’s third petition

responded that his “argument [was] not currently appropriate for consideration under

habeas corpus.”

After the revocation hearing, the ALJ found that although Wilke had violated his

probation by drinking alcohol and driving, revocation was unwarranted because his

time in jail was punishment enough. Stublaski appealed the decision, but on April 16

the Division sustained it. Wilke was released the next day, 137 days after his arrest.

Invoking 42 U.S.C. § 1983, Wilke sued Stublaski for unreasonably delaying the

hearing and thereby violating his due-process rights under the Fourteenth Amendment.

No. 19-1617 Page 3

Wilke also sued the three judges for statutory damages under § 782.09 for failing to

grant a writ of habeas corpus. The district court screened the claims against the judges

before they were served, see 28 U.S.C. § 1915A, based on absolute judicial immunity,

and allowed Wilke to amend his complaint and proceed against only Stublaski. The

district court later entered summary judgment for Stublaski on the ground that he too

was absolutely immune for his actions in pursuing revocation of Wilke’s probation.

Alternatively, the court ruled that a jury could not find that Stublaski had denied Wilke

due process because the delays were reasonable. Wilke appeals.

Stublaski argues that the appeal should be dismissed because Wilke fails to

explain how the district court erred. See FED. R. APP. P. 28(a)(8)(A). Wilke has said

enough in his brief, however, to permit our review. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (courts must liberally construe pro se filings). He cites relevant caselaw to argue

that because Stublaski was not a member of the decision-making probation board, he

was not absolutely immune. On the merits Wilke contends that a jury could find that

Stublaski unreasonably delayed the hearing by failing to ensure that it occurred within

50 days after he was detained as required under Wisconsin law. See WIS. ADMIN. CODE

§ HA 2.05(4)(a); cf. United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001) (reviewing

the challenge despite the appellant providing “no legal support for his position”).

That is not to say that these arguments have merit. The district court correctly

concluded that Stublaski was entitled to absolute immunity. We apply a “functional

approach” to decide whether the actions of a government official warrant absolute

immunity, looking to “the nature of the function performed, not the identity of the actor

who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quoting Forrester

v. White, 484 U.S. 219, 229 (1988)). For example, absolute immunity shields a

prosecutor’s conduct as an advocate that is “intimately associated with the judicial

phase of the criminal process,” such as initiating a prosecution and presenting the

State’s case. Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). But a parole officer who

investigates an alleged violation and then prepares a report for a revocation proceeding

is not absolutely immune because these acts are more like those of a police officer

securing an arrest warrant. See Wilson v. Kelkhoff, 86 F.3d 1438, 1445–46 (7th Cir. 1996).

Here, Stublaski did not gather evidence about Wilke’s probation violation;

instead, like a prosecutor, he “made a discretionary decision” based on the arresting

officer’s report to keep Wilke in custody and move to revoke his probation. See Walrath

v. United States, 35 F.3d 277, 282 (7th Cir. 1994); see also WIS. ADMIN. CODE

§ DOC 331.03(2) (providing that a probation officer chooses the next step after an

No. 19-1617 Page 4

investigation, including recommending revocation). In advocating for revocation,

including requesting a hearing, Stublaksi’s acts were “intimately associated with the

quasi-judicial phase of the criminal process,” and he is therefore absolutely immune

from this suit for damages. See Tobey v. Chibucos, 890 F.3d 634, 649–50 (7th Cir. 2018);

see also Katz-Crank v. Haskett, 843 F.3d 641, 647 (7th Cir. 2016) (holding that the

prosecutors were absolutely immune from a claim that they delayed the defendant’s

trial). Because absolute immunity applies to Stublaski’s actions, we do not address

whether he violated Wilke’s due-process rights, and if so, whether qualified immunity

would apply. See Boogaard v. Nat’l Hockey League, 891 F.3d 289, 295 (7th Cir. 2018).

Wilke also maintains that the judges are not immune from his claim for damages

under Wisconsin law for allegedly improperly refusing to grant a writ of habeas corpus.

He relies on § 782.09, which provides: “Any judge who refuses to grant a writ of habeas

corpus, when legally applied for, is liable to the prisoner in the sum of $1,000.” We

agree with Wilke that judicial immunity does not prevent him from bringing an action

against the judges under this statute. Absolute immunity may be abrogated when a

legislature clearly intends to do so. See Pulliam v. Allen, 466 U.S. 522, 529 (1984); Candee

v. Egan, 267 N.W.2d 890, 898 (Wis. 1978). Section 782.09, a provision from 1849 that

remains good, if rarely invoked, law, allows an “action for $1,000 in statutory damages”

against a judge “for refusing to sign [a] writ of habeas corpus.” J.V. by Levine v. Barron,

332 N.W.2d 796, 798, 802 (Wis. 1983). We offer no opinion about whether Wilke “legally

applied” for a writ or is entitled to relief. But the district court should not have

dismissed Wilke’s claims against the three judges under § 782.09 on immunity grounds.

Because Wilke now lacks any federal claims, the district court on remand should

consider whether it is appropriate to retain jurisdiction over the state-law claims.

See 28 U.S.C. § 1367(c)(3); Howlett v. Hack, 794 F.3d 721, 728–29 (7th Cir. 2015). This

includes examining whether Wilke’s claims would be time-barred in state court. If, for

example, the three-year statute of limitations for an action based on “a liability created

by statute” applies, see WIS. STAT. § 893.93(1m)(a), Wilke might still be able to litigate his

claims there because in Wisconsin a federal suit can toll the running of the limitations

period, see id. § 893.15; Smith v. Herrling, Myse, Swain & Dyer, LTD., 565 N.W.2d 809, 811

(Wis. Ct. App. 1997). If the district court relinquishes supplemental jurisdiction, it

should revise the judgment to show that these claims are dismissed without prejudice.

The judgment is VACATED in part with respect to the dismissal of Wilke’s

claims under § 782.09, and the case is REMANDED. The judgment is AFFIRMED in all

other respects.