Opposition Brief — Heimermann v. McCaughtry (No. 09-334)

Supreme Court, U.S.

FILED

zZ OCT 16 2009

No. 09-334

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

SCOTT A. HEIMERMANN,

Petitioner,

V.

GARY R. MCCAUGHTRY, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Wisconsin

District IV

—_—_———¢

BRIEF IN OPPOSITION OF

RESPONDENT JOANNE SWYERS

JULIE P. WILSON

Counsel of Record

RAYMOND J. POLLEN

CRIVELLO CARLSON, 8.C

710 North Plankinton Avenue

Suite 500

Milwaukee, WI 53203

(414) 271-7722

& ’ . j }

‘ OunNSsSe I ror Re spondent

Joanne Swvyers

COUNTER STATEMENT OF

QUESTION PRESENTED

Whether the Petitioner fails to present an issue

worthy of consideration by this Court where his

claims under 42 U.S.C. § 1983 call into question the

validity of his conviction and where dismissal of these

claims pursuant to Heck v. Humphrey, 512 U.S. 477,

114 S. Ct. 2364 (1994) has not been shown to conflict

with controlling precedent.

PARTIES TO THE PROCEEDINGS

Petitioner Scott A. Heimermann, Plaintiff-Appellant

below, Petitioner

Gary R. McCaughtry, Mark W. Clements, John

O’Donovan, John Dehaan, Michael J. Sullivan, Cindy

O’Donnell, Steven B. Casperson, Stephen M. Puckett,

Sam Schneiter, Timothy Douma, Lynda J. Schwandt,

John Doe and John Doe 2, Defendants below

Respondent Joanne Swyers, Defendant-Respondent

below, Respondent

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTION PRE-

EE se cccaciankens pete doen ca oe i

PARTIES TO THE PROCEEDINGS .................006

Te Ce CF re Be iaanivice acs ecenesinandcawsavencsesvennees ili

ey 0 iF ee ey y | a) 4 y ig + ery Vv

Be IS BPE dco wt <eohe seca tunsisnesasansnssaceacasaneciacens 1

STATEMENT OF THE CASE................ IRE FU RS Ser 1

REASONS FOR DENYING THE PETITION ....... f

I. THE PETITION [TSELF REFLECTS PETI-

TIONER’S ATTACK ON HIS CONVICTION,

AND CONFIRMS THE WISCONSIN COURT

OF APPEALS APPROPRIATELY CON-

CLUDED PETITIONER'S § 1983 CLAIMS

ARE BARRED BY HECK V. HUMPHREY,

§12 U.S. 477, 114 S. CT. 2364 (1994).......... 7

Il. PETITEONER HAS NOT SHOWN A CON-

FLICT BETWEEN THE WISCONSIN

COURT OF APPEALS’ DECISION AND

THIS COURT'S PRECEDENT .................... 12

Il. PETITIONER HAS NOT SHOWN A CON-

FLICT BETWEEN THE WISCONSIN

COURT OF APPEALS’ DECISION AND

FEDERAL APPELLATE PRECEDENT ON

THE APPLICABILITY OF HECK V.

HUMPHREY .................

TABLE OF CONTENTS — Continued

Page

IV. PETITIONER HAS NOT [IDENTIFIED AN

IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS NOT, BUT SHOULD

BE, DECIDED BY THIS COURT............... 20

OIE, pccc sua scacscrec ns dias ucdava connenasnaasaevaacscnns 21

APPENDIX

Decision and Order of the State of Wisconsin

Circuit Court Branch 12, Dane County, dated

SCO 27, BG vce coacssensvccnscoasncess eer ae

TABLE OF AUTHORITIES

Page

CASES

Barnwell v. West, No. 02-CV-0925-DRH, 2006

WL 281944 (N.D. Ill. Feb. 16, 2006).......00000000 2. 18

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

rete A he Sr ie ee et aes Deen oer 15

Carr v. O’Leary, 167 F.3d 1124 (7th Cir. 1999)..........18

Dist. Attorney’s Office for the Third Judicial

Dist. v. Osborne, 557 U.S. __, 129 S. Ct.

ey I ee 12,14,15

Edwards v. Balisok, 520 U.S. 641, 117 S. Ct.

I eo i eae educwenns sah awetcanee

Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998) ......... 18

Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.

Ey RARE ANS AOR ne aca A eee .. passim

Huey v. Stine, 230 F.3d 226 (6th Cir. 2000) ...............19

Jackson v. Metro. Edison Co., 419 U.S. 245

eR eT ANC oes. 8. WtRe ALA > ier = ee ae 10, 11

Jenkins v. Haubert, 179 F.3d 19 (2nd Cir. 1999)..... 18. 19

Lueck v. Wathen, 262 F.Supp. 2d 690 (N.D

Tex. 2003) ...... | | 17, 18

Meyer v. Laser Vision Inst., LLC, 2006 WI App

70, 290 Wis. 2d 764, 714 N.W.2d 223 ..... 5

Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998) .. 19

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct

ee UNE Pica cic cccdaseuceeies vecss a teaeceaeeee 15S

V1

TABLE OF AUTHORITIES — Continued

Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978

(1998)

State v. Campbell, 2006 WI 99, 44 51-55, 294

WHER. Be BP, FAS IM, WEA DGD cvcsscsccoscccvcssescssecesasecces

State ex rel. Doxtater v. Murphy, 248 Wis. 2d

PG, Bae 04, Ve cae GOO (LOGS) osecsscccccssccccvcccnsess lass

State v. Hetmermann, No. 95-0225-CR, 1995

WL 465150 (Wis. Ct. App. Aug. 8, 1995).

State v. Steadman, 152 Wis. 2d 293, 448

N.W.2d 267 (Wis. Ct. App. 1989)

United States v. Russell, 411 U.S. 423,93 S. Ct

1637 (1973)....

CONSTITUTION

U.S. Const. art. II]

Page

INTRODUCTION

Through his petition for a writ of certiorari (Peti-

tion), Petitioner Scott A. Heimermann improperly at-

tempts to reinvent his claims against Respondent

Joanne Swyers. The Petition itself discloses that the

Wisconsin Court of Appeals correctly concluded that

Petitioner’s claims under 42 U.S.C. § 1983 are barred

under Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.

2364 (1994). Petitioner does not identify a conflict

between a decision of a state court of last resort and

the relevant decisions of this Court on an important

federal question. Petitioner does not identify a con-

flict between a decision of a state court of last resort

and a United States Court of Appeals on an impor

tant federal question. Petitioner does not identify an

important question of federal law that has not been,

but should be, settled by this Court. Petitioner has

presented no reasons justifying certiorari review in

this case. His Petition should be denied. Sup. Ct. R.

LO.

STATEMENT OF THE CASE

Petitioner “was convicted in 1992, after a jury

trial, of two counts of first-degree intentional homi

cide as a party to a crime.” (Petitioner’s Appendix |P

App.] at 2a, 9 1). Along with two other men, Edward

Piscitello and Joseph Isajiw, Petitioner was charged

for the execution-style killing of an apparent drug

dealer and his bodyguard in Milwaukee, Wisconsin

(P. App. at 2a, 4] 2). Petitioner’s conviction was af-

firmed by the Wisconsin Court of Appeals in State v.

Heimermann, No. 95-0225-CR, 1995 WL 465150 (Wis.

Ct. App. Aug. 8, 1995), and the Supreme Court of

Wisconsin denied his petition for review. (P. App. at

3a, | 3). As summarized by the Wisconsin Court of

Appeals, Petitioner has since “repeatedly attempted

to challenge his conviction, both directly and in-

directly,” having “filed approximately thirty-nine ap-

peals and writs in [the Wisconsin Court of Appeals]

since 1991.” (P. App. at 3a, | 3 n.1). According to Peti-

tioner, he has also pursued avenues for habeas corpus

relief through the federal courts. (Petition at 7-13).

However, none of his challenges have been successful

and Petitioner remains in prison.

In May 2004, Petitioner filed in the Dane County

Circuit Court a Complaint against Respondent Joanne

Swyers and numerous state defendants.’ (See P. App.

The state defendants include Gary R. McCaughtry, Mark

W. Clements, John O’Donovan, John Dehaan, Michael J. Sulli-

van, Cindy O'Donnell, Steven B. Casperson, Stephen M. Puck-

ett, Sam Schneiter, Timothy Douma, and Lynda J. Schwandt. (P

App. at iii, 17a-18a). The Dane County Circuit Court Order from

which Petitioner appealed to the Wisconsin Court of Appeals

dismissed only the claims against Respondent Swyers. (P. App

at 5a, 4 7 n.3). The state defendants were not named as Respon

dents in the proceedings below. (P. App. at la). The state defen

dants are not named as Respondents in the Petition before this

Court. Contrary to Petitioner's frequent and somewhat confus

ing references to “Respondents” throughout his Petition, see, e.g.,

Petition at i- (Questions Presented), Respondent Swyers is the

only Respondent before this Court. On September 17, 2009,

(Continued on following page)

at 17a). In the Complaint, Petitioner asserted five

claims against Respondent, including: 1) a breach of

contract claim; 2) a claim alleging denial of substan-

tive due process relating to post-conviction access to

evidence; 3) an access to courts claim; 4) a failure to

protect claim; and 5) a claim of concerted action

under Wis. Stat. § 895.045(2). (P. App. at 20a-23a; see

also P. App. at 4a, { 5). Petitioner requested relief in

the form of temporary and permanent injunctions, a

declaratory judgment and more than four million

dollars in compensatory damages. (P. App. at 4a, 4 5).

Respondent is an employee of Dodge County,

Wisconsin and at the times relevant to the Petition

worked as an investigator with Dodge County Sher-

iff’s Department. In 1998, Respondent investigated

criminal activity at the Dodge Correctional Institu-

tion, a Wisconsin Department of Corrections facility

In this capacity, Respondent encountered Petitioner,

learned of his involvement in criminal activity, and

interacted with Petitioner in the context of an in-

vestigation. She is not now, nor was she at the times

addressed by the Petition, employed by any Mil

waukee law enforcement agency or Milwaukee prose

cutor’s office.

Respondent moved to dismiss all of Petitioner’s

claims against her. (P. App. at 18a). The Dane County

Circuit Court granted Respondent’s motion, dismissing

‘ounsel for the state defendants filed a Waiver indicating no re

sponse to the Petition would be filed on their behalf

the claims with prejudice by Order dated September

28, 2007. (P. App. 31a). In so doing, the Dane County

Circuit Court incorporated portions of analysis set

forth in its September 27, 2007, Order dismissing

some of Petitioner’s claims against the state defen-

dants. (P. App. 18a-19a, 27a).° As is relevant to this

Court’s consideration of the Petition, the Dane Coun-

ty Circuit Court found the Petitioner’s substantive

due process and access to courts claims barred by

Heck. (P. App. at 26a-27a, 30a-3la; R. App. at 7, 1)

14, 18).

Petitioner appealed from the Dane County Cir

cuit Court Orders dismissing his claims against Re-

spondent, denying his motion for reconsideration, and

awarding costs to Respondent. (P. App. at 2a, { 1).

The Wisconsin Court of Appeals affirmed each of the

orders from which Petitioner appealed. (P. App. at la

12a). Petitioner next petitioned the Supreme Court of

Wisconsin for discretionary review of the treatment of

his substantive due process claim relating to post-

conviction access to evidence and his access to courts

claim. (See Petition at 20). The Supreme Court of

Wisconsin denied his petition for review. (P. App. at

32a-33a).

The September 27, 2007, Dane County Circuit Court Or

der is made a part of the Appendix to this Brief in Opposition

Respondent’s Appendix [R. App.] 1-19)

Petitioner also sought review by the Supreme Court of

Wisconsin of his failure to protect claim, but that issue does not

bear on the Petition before this Court

The Wisconsin Court of Appeals reviewed de novo

whether Petitioner’s Complaint stated a substantive

due process claim relating to post-conviction access to

evidence and an access to courts claim. (P. App. at 4a-

Sa, {| 6) (citing Meyer v. Laser Vision Inst., LLC, 2006

WI App 70, ¥j 13, 290 Wis. 2d 764, 714 N.W.2d 223).

The Wisconsin Court of Appeals discussed these

claims as follows:

{11 The circuit court also dismissed Hei-

mermann’s claim that Swyers and the others

denied him substantive due process by deny

ing him access to the alleged testimony of

Piscitello.. When a plaintiff seeks to recover

damages under 42 U.S.C. § 1983 for an

allegedly unconstitutional conviction or im

prisonment or other action that would render

a conviction invalid, the “plaintiff must prove

that the conviction or sentence has been

reversed on direct appeal, expunged by exe:

utive order, declared invalid by a state tribu

nal authorized to make such determination

or called into question by a federal court’

issuance of a writ of habeas corpus.” Heck,

512 U.S. at 486-87. Consequently, when a

prisoner seeks damages under § 1983, the

court must consider whether judgment for

the plaintiff “would necessarily imply the in

validity of his conviction or sentence; if it

would, the complaint must be dismissed

unless the plaintiff can demonstrate that the

conviction or sentence has already been

invalidated.” /d. at 487

6

12 In his complaint, Heimermann refers

to Piscitello’s testimony as “the missing in.-

gredient to plaintiff’s release from prison

recipe.” The circuit court concluded that he

was seeking exculpatory testimony from

Piscitello that would call into question the

validity of his underlying conviction. We

conclude that, based on the allegations of the

complaint, Heimermann is challenging his

conviction and imprisonment, and conse-

quently, his claim is barred by Heck.

113 Heimermann also alleges that Swyers

violated his right to access to the courts by

withholding certain information during a 1999

habeas corpus proceeding in state court

Specifically, he alleges that Swyers testified

falsely at the hearing about the investigation

ot Fecke, and her attempts to locate Pisci-

tello. Heimermann states that because the

circuit court did not know the “true focus” of

Fecke’s investigation, the circuit court hear

ing the habeas petition was prevented from

reaching the conclusion that the criminal

complaint upon which Heimermann had been

convicted should be dismissed with prejudice

Again, the basics of this claim is that Heimer

mann’s criminal conviction was invalid. Con

sequently, this claim is also barred by Hec/

Heimermann does not explain in hi

what the ex¢ ulpatory testimony would be

at 6a-7a. WU 11-12

si

7

REASONS FOR DENYING THE PETITION

I. THE PETITION ITSELF REFLECTS PETI-

IONER’S ATTACK ON HIS CONVICTION,

AND CONFIRMS THE WISCONSIN COURT

OF APPEALS APPROPRIATELY CON-

LUDED PETITIONER’S § 1983 CLAIMS

ARE BARRED BY HECK V. HUMPHREY,

512 U.S. 477, 114 S. CT. 2364 (1994).

In his Statement of the Case, Petitioner presents

a distorted and unnecessarily expansive background,

beginning with his own upbringing and continuing

through the Supreme Court of Wisconsin’s denial of

discretionary review below. (Petition at 2-20). Peti-

tioner first mentions Respondent in the last of nine

subsections in his Statement of the Case. (Petition at

16-17). The accuracy of much of the information pre-

sented cannot be confirmed and is, in any event,

irrelevant to this Court’s consideration of the Peti-

tion.

Through his § 1983 Complaint, Petitioner sought

unspecified “exculpatory evidence” from Piscitello,

another of the men charged with the murders for

which Petitioner was convicted as a party to the

crimes. As noted by the Dane County Circuit Court,

Petitioner alleged that this exculpatory evidence was

“the missing ingredient” in his “release from prison

recipe.” (P. App. at 2la-22a) (quoting Complaint

{| 109). The Wisconsin Court of Appeals similarly un-

derstood this to be Petitioner’s objective based on his

appellate briefs. (P. App. at 5a, J 7) (summarizing Pe-

titioner’s claims as including a claim that Respondent

8

and others offered to help him obtain “exculpatory

evidence from his co-actor Piscitello”); (Petition at

7a, 412) (“In his complaint, Heimermann refers to

Piscitello’s testimony as the ‘missing ingredient to

plaintiff’s release from prison recipe.’ ”).

The Wisconsin Court of Appeals understood Peti-

tioner to be claiming that Respondent “denied him

substantive due process by denying him access to the

alleged testimony of Piscitello” though Petitioner

failed to explain in his appellate brief “what the ex-

culpatory testimony would be.” (P. App. at {J 11 n.4).

The Wisconsin Court of Appeals further understood

Petitioner to be claiming that Respondent denied his

“right of access to the courts by withholding certain

information” including about “her attempts to locate

Piscitello” thereby preventing the Wisconsin Circuit

Court hearing the habeas petition “from reaching the

conclusion that the criminal complaint upon which

Heimermann had been convicted should be dismissed

with prejudice.” (P. App. at 7a-8a, 9 13). The Wis-

consin Court of Appeals concluded that Petitioner’s

claims were both barred by Heck because they called

into question the validity of his conviction and chal-

lenged Petitioner’s conviction and imprisonment. (P.

App. at 7a-8a, (7 12-13). As the Wisconsin Court of

Appeals observed in discussing other aspects of Peti-

lioner’s Complaint, “to the extent Heimermann is

attempting to have himself exonerated from the un-

derlying criminal conviction by information he claims

Piscitello will provide, Swyers would not be able to

obtain this result for him.” (P. App. at 6a, J 10).

9

Petitioner now attempts to reinvent and recast

his § 1983 claims against Respondent for purposes of

his Petition. He no longer couches the evidence

sought in terms of Piscitello’s allegedly exculpatory

testimony. This may be owing to Petitioner’s acknowl-

edgement that he obtained and presented to more than

one reviewing court multiple affidavits by Piscitello

but was unsuccessful in persuading any court that

Piscitello’s evidence warranted his release from pris-

on. (Petition at 10-12). These efforts may also be due

to his assertion that Piscitello died in September

2006. (Petition at 18 n.13).

Unlike his Complaint, the Petition is focused on

what Petitioner calls “‘as-yet-undisclosed state evi-

dence’” consisting of “records presumably still being

withheld by the county’s prosecutors and Milwaukee

law enforcement.” (Petition at 13-14). Petitioner’s

reinvention of his claims is problematic for a number

of reasons. These records are not the subject of

Petitioner’s Complaint allegations or claims against

Respondent nor were these claims addressed by the

courts below. Petitioner is even uncertain as to the

existence of any such records. Petitioner has not

alleged or established that Respondent, who is nei-

ther a member of the City of Milwaukee Police De-

partment nor the Milwaukee County District Attorney’s

Office, has control over any such records.

The Petition otherwise confirms that, through his

§ 1983 action, Petitioner is improperly challenging

the validity of his criminal conviction. He states that

his co-actor Piscitello framed him for the murders

10

underlying Petitioner’s conviction. (Petition at 4 n.3).

Petitioner recounts the Milwaukee Police Depart-

ment’s investigation and Milwaukee County District

Attorney’s Office’s prosecution of the murders, Peti-

tion at 3-7, before concluding “the Milwaukee police

coerced the testimony of Isajiw and Danbrova to

frame Heimermann for Binwalee and Russell’s mur-

ders.” (Petition at 7). Petitioner also attacks the moti-

vations of Milwaukee law enforcement officers in

their investigation. (Petition at 11 n.8). Petitioner

then contorts these dubious assertions to state “that

Milwaukee law enforcement facilitated the circum-

stances that led to the deaths of Binwalee and

Russell, not Heimermann.” (Petition at 19) (citing

State v. Steadman, 152 Wis. 2d 293, 302, 448 N.W.2d

267 (Wis. Ct. App. 1989); United States v. Russell, 411

U.S. 423, 431-32, 93 S. Ct. 1637 (1973)). Petitioner

apparently contends that by failing to oppose the re-

lease from custody of murder victim Binwalee and by

allowing Petitioner to interact with Piscitello, “Mil-

waukee law enforcement” engaged in conduct justify-

ing treating Piscitello and the state as one. (Petition

at 19) (citing Jackson v. Metro. Edison Co., 419 U.S.

245, 351 (1974)). The three cases cited are inapplic-

able to Petitioner’s claims and do not justify certiorari

review. The cases cited only evince Petitioner’s im-

proper attack on his conviction through his § 1983

claims.*

* Steadman involved a due process claim asserting that the

government's involvement in providing all the elements for the

(Continued on following page)

11

In stating that his “void prosecution argument is

in accord with well-established law,” Petition at 19,

Petitioner confirms that his claims are Heck barred.

He relies upon State v. Campbell, 2006 WI 99, 7 51-

05, 294 Wis. 2d 100, 718 N.W.2d 649 (citing Hazel-

Atlas Glass Co., 322 U.S. 238, 244, 64 S.Ct. 997

(1944)) and State ex rel. Doxtater v. Murphy, 248 Wis.

2d 593, 602, 22 N.W.2d 685 (1946). (Petition at 19-20).

The cases cited are inapplicable to Petitioner’s claims

and do not justify certiorari review. Petitioner’s as-

sertion and the cases he cites further evince his

improper attack on his conviction through his § 1983

claims.’

commission of the crime of which Steadman was convicted

warranted dismissal of the charges. The Wisconsin Court of

Appeals found no due process violation. 152 Wis. 2d at 296-303.

In Russell, this Court reversed a decision of the United States

Court of Appeals for the Ninth Circuit which improperly

expanded the traditional notions of entrapment to recognize a

new defense. 411 U.S. at 427-36. Jackson addressed whether a

privately owned utility subject to substantial state regulation is

engaged in state action and is therefore subject to due process

scrutiny for having terminated a customer’s electric service,

which termination was challenged in a § 1983 action. This Court

found no state action by the utility. 419 U.S. at 351-60.

* In Campbell, the Supreme Court of Wisconsin held that a

circuit court may permit collateral attack on a judgment or order

procured by fraud if the fraud is jurisdictional making the order

or judgment void and negating an element of a crime, or if the

fraud raises an affirmative defense to the crime. 2006 WI 99,

4] 4. Doxtater found that a criminal defendant who entered a

guilty plea was not entitled to a writ of habeas corpus though

the trial court erred in failing to advise the defendant of his

nght to counsel because the defendant had an adequate remedy

(Continued on following page)

12

The Petition itself demonstrates that the Wis-

consin Court of Appeals properly concluded that Peti-

tioner’s § 1983 claims against Respondent are barred

by Heck. The Petition should be denied.

Il. PETITIONER HAS NOT SHOWN A CON-

LICT BETWEEN THE WISCONSIN COURT

OF APPEALS’ DECISION AND THIS COURT’S

PRECEDENT.

Petitioner asserts that a conflict exists between

the Wisconsin Court of Appeals’ decision affirming

dismissal of his access to courts claim and claim for

access to post-conviction evidence and this Court’s

precedent in Spencer v. Kemna, 523 U.S. 1, 20-21, 118

S. Ct. 978 (1998) and District Attorney’s Office for the

Third Judicial District v. Osborne, 557 U.S. __, 129

S. Ct. 2308 (2009) (“Osborne”). He is incorrect.

Spencer addressed whether a pending petition for

a writ of habeas corpus seeking to invalidate an order

revoking parole was mooted by Spencer’s release

upon serving his entire term of imprisonment. Spen-

cer, 523 U.S. at 3. The majority of this Court held

that Spencer’s release rendered his habeas petition

moot, as there were no collateral consequences ade-

quate to meet the injury-in-fact requirement of Arti-

cle III of the United States Constitution. Jd. at 14.

This Court rejected Spencer’s argument that his

through appeal or a writ of error to review his conviction. 248

Wis. at 603

13

habeas petition could not be moot because he would

be foreclosed under Heck from pursuing damages in

an action under 42 U.S.C. § 1983. Id. at 17. Justice

Scalia observed, “This is a great non sequitur, unless

one believes (as we do not) that a § 1983 action for

damages must always and everywhere be available.”

Id.

Petitioner relies only on the concurring opinion of

Justice Souter in Spencer, which discusses the anom-

alous results that would occur through “application of

the favorable-termination requirement [of Heck] to

§ 1983 suits brought by plaintiffs not in custody.” Jd.

at 20-21 (Souter, J., concurring). Justice Souter wrote,

“The better view, then, is that a former prisoner,

no longer ‘in custody,’ may bring a § 1983 action

establishing the unconstitutionality of a conviction

or confinement without being bound to satisfy a

favorable-termination requirement that it would be

impossible as a matter of law for him to satisfy.” Jd.

at 21.

Even if Petitioner could show that what he labels

“Justice Souter’s principle in Spencer,” Petition at 25,

is the controlling authority of this Court, it is

inapplicable to Petitioner’s claims. Petitioner neither

alleged in his Complaint nor asserts in his Petition

that he is not “in custody.” Nor could he; Petitioner

remains in custody serving a sentence on the very

conviction impugned by his §1983 claims. The

Wisconsin Court of Appeals’ decision is not in conflict

with the holding of Spencer.

~ nd ~ ~ ; 7

= - os ap 2uw ee SP 8 ESS SE PF Ee! FP ae we - w eee

14

Citing Osborne, Petitioner states “this Court

assumed, without deciding, that a freestanding sub-

stantive due process right to access state evidence

claim is not barred by Heck.” (Petition at 26). Peti-

tioner mischaracterizes the holding and applicability

of Osborne.

Osborne filed a § 1983 action claiming that the

Due Process Clause and other constitutional provi-

sions gave him a constitutional right to access exist-

ing DNA evidence in the state’s possession in order to

conduct more discriminating testing than was avail-

able at the time of his criminal trial. Osborne, 123

S. Ct. at 2315. The district court initially dismissed

these claims as barred by Heck, concluding Osborne

was required to proceed through a writ of habeas

corpus. Jd. The United States Court of Appeals for the

Ninth Circuit reversed this decision without express-

ing an opinion as to whether Osborne had been

deprived of a federally protected right. Jd. (citing

Osborne v. Dist. Attorney’s Office for Third Judicial

Dist., 423 F.3d 1050, 1056 (9th Cir. 2005)). On

remand, the district court addressed cross summary

judgment motions and concluded that “there does

exist, under the unique and specific facts presented, a

>

very limited constitutional right to the testing

sought.” Osborne v. Dist. Attorney’s Office for Third

Judicial Dist., 445 F. Supp. 2d 1079, 1081 (2006). The

Ninth Circuit affirmed, basing its decision on prece-

dent recognizing the prosecutorial duty to disclose

15

exculpatory evidence in the context of pre-trial dis-

closures. Osborne v. Dist. Attorney’s Office for Third

Judicial Dist., 521 F.3d 1118, 1128 (9th Cir. 2008).

This Court granted certiorari and reversed, con-

cluding the Ninth Circuit improperly expanded the

scope of the Due Process Clause and this Court’s

holdings in Pennsylvania v. Ritchie, 480 U.S. 39, 107

S. Ct. 989 (1987) and Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194 (1963) to include a procedural due

process right to post-conviction access to evidence.

Osborne, 129 S. Ct. at 2315-22. In reaching the deter-

mination that Osborne did not state a procedural due

process claim, this Court “assume[d] without deciding

that the Court of Appeals was correct that Heck does

not bar Osborne’s § 1983 claim.” Jd. at 2319. Although

the Court of Appeals did not address Osborne’s claim

on substantive due process grounds, Osborne asked

this Court to “recognize a freestanding right to DNA

evidence untethered from the liberty interests” that

he sought to vindicate. 7d. at 2322. This Court

expressly “rejectled] the invitation” and concluded

that in the circumstances of Osborne’s case “there is

no such substantive due process right.” Jd. To the

extent Petitioner suggests that in Osborne this Court

recognized a freestanding substantive due process

right to access state evidence post-conviction, he is

incorrect.

Petitioner has not demonstrated a conflict be-

tween this Court’s precedent and the decision of the

Wisconsin Court of Appeals. The Petition should be

denied.

16

Ill. PETITIONER HAS NOT SHOWN A CON-

FLICT BETWEEN THE WISCONSIN COURT

OF APPEALS’ DECISION AND FEDERAL

APPELLATE PRECEDENT ON THE AP.

PLICABILITY OF HECK V. HUMPHREY.

Petitioner asserts that a conflict exists between

the Wisconsin Court of Appeals’ decision and “most

decisions of the federal courts on the ongoing hin-

dered right of postconviction access issue.” (Petition

at 23). Implicit in Petitioner’s position is the notion

that his claims fall within an exception to Heck and

that he is not required to have first successfully chal-

lenged his conviction. Petitioner asserted § 1983

claims for damages against Respondent in his Com-

plaint. He seems now to suggest that he is also

seeking injunctive relief, though it was not alleged in

the Complaint and, as discussed, has taken on a new

form through his Petition.

Petitioner also conflates being unable to pursue

habeas relief in the first instance with his own cir-

cumstance of having unsuccessfully pursued such

relief in multiple forums. In Heck v. Humphrey, this

Court held:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment,

or for other harm caused by actions whose

unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has

been reversed on direct appeal, expunged by

executive order, declared invalid by a state

17

tribunal authorized to make such deter-

mination, or called into question by a federal

court’s issuance of a writ of habeas corpus,

28 U.S.C. § 2254. A claim for damages bear-

ing that relationship to a conviction or

sentence that has not been so invalidated is

not cognizable under § 1983. Thus, when a

state prisoner seeks damages in a § 1983

suit, the district court must consider whether

a judgment in favor of the plaintiff would

necessarily imply the invalidity of his con-

viction or sentence; if it would, the complaint

must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence

has already been invalidated. But if the

district court determines that the plaintiff’s

action, even if successful, will not demon-

strate the invalidity of any outstanding

criminal judgment against the plaintiff, the

action should be allowed to proceed, in the

absence of some other bar to the suit.

512 U.S. 477, 486-87, 114 S. Ct. 2364 (1994).

Moreover, the federal appellate cases pointed to

by Petitioner are factually distinguishable.’ (Petition

° Petitioner also points to two district court cases, one of

which is unpublished, and neither of which has been cited or

adopted by a federal court of appeals. Petitioner characterizes

his claim as “substantially identical”, Petition at 23, to the claim

addressed in Lueck v. Wathen, 262 F. Supp. 2d 690 (N.D. Tex

2003). However, Lueck was a prisoner actually in posscssion of

specific documents including the affidavit of a key witness to the

crime underlying his conviction, that he hoped would establish

the ineffective assistance of his trial counsel based on counsel's

(Continued on following page)

18

at 23-25). In Carr v. O’Leary, 167 F.3d 1124, 1125 (7th

Sir. 1999), Carr had a pending § 1983 lawsuit assert-

ing due process claims against prison officials at the

time that Heck was decided. The United States Court

of Appeals for the Seventh Circuit held that because

Carr had been released from prison and could no

longer seek habeas relief, his claims were not barred

by Heck. Id. at 1127. Figueroa v. Rivera, 147 F.3d 77,

80-81 (1st Cir. 1998), involved § 1983 claims by the

family members of an inmate who died in custody

while in the process of challenging his conviction

through a habeas petition. The court found that no

equitable exception to Heck existed. 147 F.3d at 81.

Jenkins v. Haubert, 179 F.3d 19, 21 (2nd Cir. 1999)

involved § 1983 claims based on disciplinary sanc-

tions affecting the conditions of confinement, but not

fact or duration of confinement. The United States

Court of Appeals for the Second Circuit concluded

that such claims are not barred under Heck and the

failure to interview the witness. 262 F. Supp. 2d at 695. These

materials were confiscated and not returned by prison officials

later named as defendants in a § 1983 action. Jd. at 693. Lueck

alleged he was unable to obtain another affidavit from the key

witness. /d. at 693-95. Unlike Petitioner, who challenged his

conviction through a habeas petition and various subsequent

appeals and proceedings, Lueck’s § 1983 claim was based on his

alleged inability to assert a challenge at all. Jd. at 697. Similarly,

in Barnwell v. West, an inmate claimed that an inadequate law

library and misrepresentations by an official regarding his

access to the law library prevented his late-filing of a petition

Barnwell v. West, No. 02-CV-0925-DRH, 2006 WL 381944, at *1-

*4 (N.D. Ill. Feb. 16, 2006). Lueck and Barnwell are inapplicable

to show an exception to Heck for Petitioner's claims

19

holding of Edwards v. Balisok, 520 U.S. 641, 117

5. Ct. 1584 (1997), if the prisoner is unable to chal-

lenge the conditions of confinement through a peti-

tion for federal habeas corpus. Jenkins, 179 F.3d at

21.

Petitioner points to Huey v. Stine, 230 F.3d 226,

227-28 (6th Cir. 2000), a case involving an inmate’s

§ 1983 claims of cruel and unusual punishment based

on his altercation with jail staff and the resulting

disciplinary sanctions. The court concluded that Heck

applied to bar the claims even if the inmate was no

longer “in custody” for purposes of pursuing federal

habeas relief. 230 F.3d at 229-31. In Nance v.

Vieregge, 147 F.3d 589 (7th Cir. 1998), an inmate was

being transferred to a facility closer to the court that

was hearing his motion to withdraw his guilty plea.

The property clerk told the inmate he could not take

his legal documents, which included “photocopies of

cases Nance wanted to have handy when arguing in

support of his motion” but the warden assured him

the papers would follow him. 147 F.3d at 590. When

the papers were not transferred, a ruckus ensued and

the inmate received a mild sanction. Jd. The court

addressed whether the inmate stated an access to the

courts claim and concluded that the inmate had two

available options: to proceed in state court for dam-

ages for the value of the photocopies as personal prop-

erty, or to initiate a collateral attack on the judgment

resting on his guilty plea. Jd. at 591-92. The court did

not find an exception to Heck

20

Petitioner remains “in custody,” has not been

released from prison, is not deceased, and has pur-

sued habeas relief. He is not asserting conditions of

confinement or cruel and unusual punishment claims.

The cases he cites are inapplicable to show an excep-

tion to Heck for Petitioner’s claims.

The cases relied upon by Petitioner do not dem-

onstrate a conflict between the Wisconsin Court of

Appeals’ decision and federal appellate precedent. He

has not demonstrated any conflict justifying certiorari

review. The Petition should be denied.

[V. PETITIONER HAS NOT IDENTIFIED AN

IMPORTANT QUESTION OF FEDERAL

LAW WHICH HAS NOT, BUT SHOULD BE,

DECIDED BY THIS COURT.

Petitioner suggests that this Court should ad-

dress whether a convicted defendant may “use § 1983

to restore post-conviction and habeas access to the

courts when he has no other forum to decide a non-

frivolous claim because government officials deliber-

ately hindered his only remaining viable opportunity

for justice.” (Petition at 31-32). What Petitioner

essentially requests is that this Court provide him

with additional post-conviction access to the courts.

The Petition seeks relief unique to Petitioner’s cir

cumstances born of years and years of post-conviction

litigation. He has not identified an important ques

tion of federal law which has yet to be addressed by

this Court. The Petition should be denied.

ae CE Al A hl tl Al RR A

21

kad

CONCLUSION

For all of the foregoing reasons, Respondent

respectfully requests that the Court deny the Peti-

tion.

Tt) . 4d 1 1 "ia j

hespectiuliy submitted,

JULIE P. WILSON

Counsel of Record

RAYMOND J. POLLEN

CRIVELLO CARLSON, S.C.

710 North Plankinton Avenue

Suite 500

Milwaukee, WI 53203

(414) 271-7722

Counsel for Respondent

Joanne Swyers

App. 1

STATE OF CIRCUIT COURT DANE

WISCONSIN BRANCH 12 COUNTY

State ex rel.

Scott A. Heimermann

Plaintiff, Case No. 04 CV 1499

VS.

Gary R. McCaughtry, et al.,

Defendants.

DECISION AND ORDER

The instant action began with a lawsuit filed by

Plaintiff Scott A. Heimermann (Heimermann) in

2004. Heimermann, a prisoner, seeks several forms of

relief, including over four million dollars in compen-

satory damages, from Defendants Gary R. McCaughtry

(McCaughtry), Mark. W. Clements (Clements), John

O’Donovan (O’Donovan), John Dehaan (Dehaan),

Michael J. Sullivan (Sullivan), Cindy O’Donnell

(O'Donnell), Steven B. Casperson (Casperson), Stephen

M. Puckett (Puckett), Sam Schneiter (Schneiter).

Timothy Douma (Douma), Lynda J. Schwandt

(Schwandt) and Joanne Swyers (Swyers). Swyers, as

the only non-state defendant in this action, filed a

Motion to Dismiss on April 30, 2007.' Shortly

' The court will refer to McCaughtry, Clements, O’Donovan,

Dehaan, Sullivan, O'Donnell, Casperson, Puckett, Schneiter,

(Continued on following page)

App. 2

thereafter, the State Defendants filed a Motion to

Dismiss in Part.

Both motions have been fully briefed and the

court finds this matter ripe for resolution; however, in

the interest of clarity, this Decision and Order

addresses only the State Defendants’ motion. For

the reasons set forth herein, the court holds that

Heimermann’s contract, retaliation, “Heck” and

access to courts claims against the State Defendants

are dismissed. In addition, the portion of his inter-

ference with business claims grounded in due process

is also dismissed. Finally, Heimermann may not pro-

ceed on any Wisconsin Organized Crime Control Act

(WOCCA, and the Racketeer Influenced and Corrupt

Organizations Act (RICO) claims at this time.

Therefore, only his failure-to-protect and First

Amendment based interference with business claims

remain.

BACKGROUND

Heimermann is an inmate in the custody of the

Wisconsin Department of Corrections (DOC) and each

Douma and Schwandt collectively as “State Defendants.” As

Swyers is not employed by the State and has filed a separate

motion, the court will refer to her only as “Swyers.”

' The procedural background leading to the current motions

to dismiss is lengthy and complicated. As such, this court will

not detail every filing presented in the Jast three years, but will

instead briefly detail those procedural highlights most relevant

to the pending motions.

App. 3

of the State Defendants are employed by the DOC.

Briefly, the State Defendants hold, or have held, the

following positions with the DOC:

* McCaughtry is the Warden at the

Waupun Correctional Institution (WCI).

Clements is the Security Director at

WCI.

O’Donovan is a Captain for Security at

WCIL.

Dehaan was/is a Lieutenant and Cap-

tain for Security at WCI.

Sullivan is a former Secretary of the

DOC.

O'Donnell was a Deputy Secretary at the

DOC.

Casperson is the former Warden of WCI

and current Administrator of the Divi-

sion of Adult Institutions at the DOC.

Puckett is the Director of the Bureau of

Offender Classification and Movement

at the DOC.

Schneiter is the Security Chief for the

Division of Adult Institutions at the

DOC.

Douma is the Security Director at

Columbia County Correctional Institu-

tion (CCI).

App. 4

Schwandt was the Administrative Cap-

tain at CCI.”

The remaining defendant, Swyers, is an Investigator

for the Dodge County Sheriff’s Office.

Heimermann initiated this action, brought under

42 U.S.C. §1983 as well as other state common law

causes of action, with the filing of a 48-page

complaint on May 14, 2004. The case was originally

assigned to Judge Maryann Sumi. On June 29, 2004,

the State Defendants filed a Notice of Removal to

Federal Court. The next day, Swyers filed an Answer

in which she asserted several affirmative defenses

and requested dismissal of Heimermann’s claims

against her.

The United States District Court for the Eastern

District of Wisconsin then issued a July 14, 2004

Order in which Judge William Griesbach dismissed

Heimermann’s suit. Judge Greisbach found that

Heimermann was “effectively barred” from pursuing

this case due to an [sic] Seventh Circuit Court sanc-

tion prohibiting him from filing any further actions

until certain fines were paid. (R. 21:2-3.)*

' The Complaint also lists other unknown State Defen-

dants, e.g. John Doe and Richard Roe, who were employed by

the DOC in various security positions.

* The only exception to the Seventh Circuit's prohibition

appears to be cmminal cases and habeas petitions not

challenging Heimermann’s 1991 conviction.

App. 5

On September 24, 2004, Heimermann filed a

Notice of Motion and Motion for Reinstatement of

Case. Heimermann argucd that the State Defendants

had “defrauded” the state court “by not verifying the

Seventh Circuit’s restrictive filer order.” (R. 24:4.)

Heimermann requested that a June 30, 2004 judicial

entry of dismissal be set aside and that the case be

reinstated. Both Swyers and the State Defendants

opposed the motion. (See, R. 29, 30.) After a hearing

on the matter, Judge Sumi dismissed Heimermann’s

complaint with prejudice in a written order dated

January 14, 2005. Heimermann then appealed Judge

Sumi’s decision to the Wisconsin Court of Appeals.”

On December 15, 2005, the Court of Appeals

attempted to certify the following question to the

Wisconsin Supreme Court:

Simply put, the question is whether we have

the authority to do what the State asks: does

this court have the power to restrict future

filings in the circuit court? May this court (or

the circuit court) refuse to accept for filing a

case because of unpaid sanctions in a

different case in any state court? May this

court or the circuit court refuse to accept for

filing a case because of unpaid sanctions in

federal court?

° Actually, Heimermann appealed Judge Sumi’s decision

immediately after the hearing, but prior to the entry of her

written order. (R. 42-1).

App. 6

State ex rel. Hetmermann v. McCaughtry, No.

2005AP87, 2005 WL 3434744, at *2 (Ct. App. Dec. 15,

2005). On February 27, 2006, the Wisconsin Supreme

Court accepted certification from the Court of Appeals.

State ex rel. Heimermann v. McCaughtry, 2006 WI 23,

289 Wis.2d 15, 712 N.W.2d 39 (Table). However, on

June 14, 2006, the court reversed its decision, holding

that “[blecause it appears that plaintiff-appellant

remains unwilling to limit argument to the issue

properly before the court, the certification was im-

providently accepted in this case.” State ex rel.

Heimermann v. McCaughtry, No. 2005AP87, at *2

(June 14, 2006). The court then remanded the case to

the Court of Appeals.

In an unpublished decision filed January 25,

2007, the Court of Appeals held:

We conclude that the circuit court erred in

relying on the doctrine of comity in refusing

to reinstate Heimermann’s case and in

dismissing his complaint. Under the doctrine

of comity, “courts will, as a matter of

discretion, rather than obligation, defer to

the assertion of jurisdiction or give effect to

the judgments of other states or sovereigns

out of mutual respect and for the purpose of

furthering the orderly administration of

justice.” Mills v. Vilas County Bd. of

Adjustments, 2003 WI App 66, 9719, 261

Wis.2d 598, 660 N.W.2d 705, citing Teague v.

Bad River Band of Lake Superior Tribe of

Chippewa Indians, 2000 WI 79, 9 35, 236

Wis.2d 384, 612 N.W.2d 709. Whether to

App. 7

apply the doctrine of comity is committed to

the circuit court’s discretion. Teague, 236

Wis.2d 384, 7 35, 612 N.W.2d 709.

Here, the concurrent assertion of jurisdiction

is not at issue. Instead, the issue is whether

the circuit court properly gave effect to the

federal court’s judgment: that is, did the

circuit court properly exercise its discretion

when it refused to allow Heimermann to

proceed in a Wisconsin circuit court based on

a federal court sanction restricting his filing

in federal court? We conclude that it did not.

The circuit court did more than simply give

effect to the federal court order barring

Heimermann from federal court, it extended

the scope of the federal court’s order to

encompass future filings in the Wisconsin

courts. The parties do not provide us with

any authority for using comity in this

context. We conclude that the circuit court

erroneously exercised its discretion in

applying the doctrine of comity to bar

Heimermann’s filing.

We next address whether the circuit court’s

decision should be affirmed because

Heimermann has failed to state a claim or

because he is improperly attempting to

relitigate a conviction that he has already

challenged in several prior actions. We

cannot resolve these questions based on the

briefing before us. However, we note that

Heimermann’s complaint alleges conduct

that relates to incidents that have occurred

App. 8

since he has been imprisoned and thus does

not relate to his conviction.

We also note that he has presented an

argument in his briefs on appeal that his

claim is cognizable under Heck v. Humphrey,

512 U.S. 477, 489, 114 S.Ct. 2364, 129

L.Ed.2d 383 (1994). The circuit court may

take up these questions on remand. If the

circuit court determines that Heimermann

has failed to state a claim or that his

complaint is frivolous, the circuit court may

impose appropriate sanctions.

State ex rel. Heimermann v. McCaughtry, 2007 WI

App. 34, 4 5-7,728 N.W.2d 373 (Table), 2007 WL

188898. The case was remanded to Judge Sumi;

however, on March 12, 2007, Heimermann moved for

substitution. The case was reassigned to Judge Sarah

O’Brien on March 19, 2007 and further reassigned to

this court on March 27, 2007.

On May 14, 2007, the State Defendants filed the

pending motion to dismiss in part. This court has

reviewed the parties’ briefs on the State Defendant’s

motion and this Decision and Order addresses the

same.

HEIMERMANN’S COMPLAINT

Heimermann’s complaint contains allegations

that reach back to 1991, when the criminal complaint

in his underlying conviction was filed. The lengthy

Complaint contains eleven numbered paragraphs in

App. 9

the “CAUSES OF ACTION” section. Heimermann’s

brief, however, describes only eight:

(1) contract-based claims against defen-

dants Swyers, Dehaan, Casperson, O’Donnell,

Sullivan and Doe (Compl. at 11 52-57, 107-

08);

(2) a Heck v. Humphrey claim against

defendants Swyers, Dehaan, Casperson,

O’Donnell, Sullivan and Doe (Compl. at

1152-57, 109);

(3) that defendants Swyers, Dehaan,

Casperson, O’Donnell, Doe and Sullivan vio-

lated Soctt’s [sic] due process rights to

meaningful access to the courts (Compl. at

1196-106, 110-111);

(4) an affirmative failure-to-protect claim

under §1983 against Swyers, Casperson,

Puckett, Schneiter, McCaughtry, Clements,

O’Donovan, Douma and Schwandt (Compl.

at 11167, 69-70, 72-78, 84, 112-113);

(5) that defendants McCaughtry, Clements,

O'Donovan, Douma and Schwandt retaliated

against Scott for filing his internal griev-

ances about his work and testimony in the

Fecke et al. case by fabricating conduct

reports and _ unjustly disciplining him

(Compl. at 919150, 52-54, 60, 67-95, 114-

115);

(6) that defendants Casperson, Puckett,

Schneiter and O’Donnel!l condoned and

ratified the unconstitutional retaliatory

App. 10

conduct of their subordinates since Scott’s

return from the custody of the Minnesota

Department of Corrections on March 23,

2001 (Compl. at 11164, 72, 74-78, 84, 93-94,

114-115);

(7) that defendants McCaughtry, Clements,

O’Donovan and Doe intentionally interfered

with Scott’s prospective contractual and

business relations with attorneys, public

elected officials and other outsiders about

developing his patent into a viable business

to be run outside the prison (Compl. at

1185-95, 116-117); and

(8) a “concerted action” within the meaning

of Wis. Stat. §895.045(2) against Swyers for

the combined injury caused by the state

defendants.

(Heimermann Br., p. 5, emphasis in original.) Thus,

seven of the eight causes of action involve the State

Defendants. Briefly, those claims can be summarized

as follows:

¢ First Cause of Action: Breach of contract

claim against various State Defendants

and Swyers based on Heimermann’s

alleged assistance in the investigation

and prosecution of Robert Fecke (Fecke)

Heimermann claims that certain State

Defendants and Swyers made various

promises to him in exchange for his

assistance. (Compl. 452.) Heimermann

alleges that he was offered immunity

from further discipline on conduct report

App. 11

912772 and that said conduct report was

to be expunged from his prison record;

that he was granted immunity from

prosecution based on any evidence that

might come to light during’ the

investigation; that he was promised

certain exculpatory information from a

witness protection inmate, Edward J.

Piscitello (Piscitello); and that he would

be transferred to a minimum security

facility until he was released from

prison. (Id.) Based on these promises,

Heimermann allegedly worked under-

cover on the Fecke investigation for

nearly two months. (Compl. 453.)

Heimermann claims that these prom-

ises, and his performance, led to an

implied-in-law agreement that the State

Defendants breached. (Compl. {4[108.)

On a theory of quantum meruit,

Heimermann argues that he should be

compensated for the’ services’ he

provided. (Compl. 4107.)

Second Cause of Action: A “Heck” claim

under which Heimermann asserts that

he has been denied substantive due

process. (Compl. 4109.) Relying on the

same facts alleged in support of his

breach of contract claim, Heimermann

claims that certain State Defendants

and Swyers have denied him substantive

due process by denying him access to

Piscitello. (Id.) Per Heimermann, “the

missing ingredient” in his “release from

App. 12

prison recipe’ is Piscitello’s “excul-

patory” testimony. (Id.)

Third Cause of Action: An access to

courts claim under which Heimermann

contends that certain State Defendants

and Swyers perpetrated fraud upon the

Outagamie County Circuit in 1999 and

continue to condone his unlawful con-

finement thereby violating his substan-

tive due process rights. (Compl. 9196,

110-111.) Heimermann claims that

certain State Defendants and Swyers

prevented him from clearing his name

during state habeas corpus proceedings

in 1999. (Compl. 496.) Heimermann

contends that the State Defendants and

Swyers knew about Piscitello’s excul

patory testimony and that Fecke was

helping him obtain it, but withheld that

information from the judge in his habeas

proceeding. (Compl. 4103.)

Fourth Cause of Action: A failure to

protect claim under §1983 against

certain State Defendants and Swyers

based on their failure to keep

Heimermann out of general population

status. (Compl 7112.) Heimermann

claims that, as a result of his assistance

in the Fecke investigation, he is labeled

a “snitch”. (Compl. 4112.) He argues that

their deliberate indifference to his safety

is a violation of his Eighth and Four

teenth Amendment rights. (Compl

97113

App. 13

Fifth & Sixth Causes of Action: Two

claims of retaliatory conduct by State

Defendants against Heimermann. (Compl.

11196, 114-115.) In the first, Heimermann

argues that certain State Defendants

subjected him to “systemic discipline and

prison transfer” in retaliation for his

well-known litigation activities thereby

violating the First, Eighth and Four-

teenth Amendments. (Compl. 4114.) In

the second, Heimermann claims that the

conduct reports and resulting periods of

solitary confinement were “unrelated to

prison security of discipline and were

calculated to harass and intimidate plain-

tiff,” thereby violating his Eighth and

Fourteenth Amendment rights. (Comp!

4115.)

Seventh Cause of Action: An intentional]

interference with contract and business

relations claim against certain State De-

fendants. (Compl. 7116-17.) Heimermann

claims that the CCI Librarian confis

cated various documents related to his

“ongoing real estate and finance busi-

ness” and pending patent. (Compl. 486.)

Heimermann alleges that these docu

ments were part of his attempts to ob

tain outside legal counsel. (Id.) He

further claims that these documents

were then used as evidence in disci

plinary actions against him. (Compl

"788-89, 92, 94-95.) Heimermann con-

tends that the State Defendants violated

his First and Fourteenth Amendment

App. 14

rights by interfering with his pending

patent application. (Compl. 4116.) In

addition, he claims that his Fourteenth

Amendment rights were violated by State

Defendants interference with his “law-

fully established businesses.” (Compl.

4117.)

DISCUSSION

“The purpose of a motion to dismiss for failure to

state a claim upon which relief can be granted is to

test the legal sufficiency of the claim.” Weber v. City of

Cedarburg, 129 Wis. 2d 57, 64, 384 N.W.2d 333

(1986). Only those allegations made within the

complaint are relevant to the court’s decision. Jd. The

court must accept the facts stated in the complaint,

and the reasonable inferences that may be drawn

from them, as true. Friends of Kenwood v. Green,

2000 WI App 217, 9 11, 239 Wis. 2d 78, 619 N.W.2d

271. In addition, the court may look to any document

attached to the complaint and made part thereof. Jd.

“A complaint should not be dismissed for failure

to state a claim uniess it appears certain that no

relief can be granted under any set of facts that a

plaintiff can prove in support of his or her

allegations.” Watts v. Watts, 137 Wis. 2d 506, 512, 405

N.W.2d 303 (1987).

The State Defendants argue that Heimermann’s

“Heck” and “Access to Courts” claims are barred by

Heck v. Humphrey, 512 U.S. 477 (1994). In addition,

they claim that he failed to exhaust his

App. 15

administrative remedies with respect to his

“Contract” and “Retaliation” claims. While the State

Defendants have not moved to dismiss Heimermann’s

“Failure to Protect” claim, they reserve the right to do

so in the future. In addition, they argue that the

portion of his “Interference with Business” argument

based on due process fails to state a claim upon which

relief may be granted; however, they do not move to

dismiss the portion of the claim based on the First

Amendment, but reserve that right for future

motions. Finally, the State Defendants argue that

Heimermann’s complaint does not allege violations of

either the WOCCA or RICO; therefore, he should not

be allowed to proceed with those claims.

I. CONTRACT CLAIMS

“A unilateral contract will be legally enforceable

when it has induced substantial performance or when

it has brought about a change of position on the part

of the offeree.” Lazarus v. American Motors, 21 Wis.

2d 76, 83, 123 N.W.2d 548 (1963). In the instant

action, Heimermann argues that his assistance in the

Fecke investigation resulted in a legally binding

unilateral contract between himself and certain State

Defendants. Based on the existence of this alleged

contract, Heimermann contends that he is entitled to

compensation; i.e. “transfer to a minimum security

facility and the information supporting his factual]

innocence that he bargained for, earned and did not

receive.” (6/12/07 Heimermann Br. P. 6.) Heimermann,

however, may not proceed with this cause of action

App. 16

because he has failed to exhaust his administrative

remedies regarding this claim.

Wisconsin Statutes provide:

[njo prisoner may commence a civil action

with respect to the prison or jail

conditions in the facility in which he or she is

or has been incarcerated, imprisoned or

detained until the person has exhausted all

available administrative remedies that the

department of corrections has promulgated

by rule...

§801.02(7)(b) Wis. Stats.

Chapter DOC 310 of Wisconsin’s Administrative

Code outlines the administrative remedies available

to Wisconsin inmates. Section DOC 310.05 of that

chapter similarly states:

[blefore an inmate may commence a civil

action ... against any officer, employee or

agent of the department in the officer’s,

employee’s or agent’s official or individual

capacity for acts or omissions committed

while carrying out that person’s duties as an

officer, employee or agent or while acting

within the scope of the person’s office, the

inmate shall exhaust all administrative

remedies that the department of corrections

has promulgated by rule.

Wis. Admin. Code § DOC 310.05.

In applying § DOC 310.05, the Wisconsin Court

of Appeals has noted that when an inmate complaint

App. 17

is rejected as untimely, the inmate has failed to

exhaust his or her administrative remedies. State ex

rel. Laurich v. Litscher, 2004 WI App 150, 49, 275

Wis. 2d 769, 686 N.W.2d 668.

On August 27, 2003, Heimermann filed

complaint number WCI-2003-29004, in which he

alleged that certain State Defendants failed “to

comply with the terms and conditions of an implied-

in-law agreement for obtaining services in the

apprehension and convictions of former prison

guards... .” (Murphy Aff., Ex. 5, p. 7.) Heimermann

alleged that his performance under that agreement

ended “on or about June 27, 2000,” and that, since

then, he had made several demands for the services

agreed upon under the agreement, but those services

had not been provided. (Murphy Aff., Ex. 5, p. 8.)

However, complaint number WCI-2003-29004 was

rejected as untimely under §DOC 310.09%6).‘

(Murphy Aff., Ex. 5, p. 2.)

Based on this rejection, the State Defendants

now argue that Heimermann’s contract claims should

be dismissed for failure to exhaust. In response,

Heimermann claims that his complaint fell under the

“good cause” exception of § DOC 310.09(6) and that

the complaint examiner failed to properly investigate

* Wis. Admin. Code § DOC 310.09(6) provides: An inmate

shall file a complaint within 14 calendar days after the

occurrence giving rise to the complaint, except that the

institution complaint examiner may except a late complaint for

good cause.

App. 18

that cause. Due to this alleged failure, Heimermann

argues that the State Defendants cannot claim that

he failed to exhaust his administrative remedies.

Heimermann, however, has waived this argument.

“If an inmate believes there are facts constituting

‘good cause,’ he or she must advise the institution

complaint examiner by means of including the

asserted facts in the complaint.” State ex rel. Laurich,

2004 WI App 150, 415. “The failure to reasonably

apprise the institution complaint examiner, by means

of the complaint itself, of the facts the inmate believes

constitute ‘good cause’ waives the inmate’s right to

later complain that his or her complaint should have

been accepted later for ‘good cause’”. Id. Contrary to

Heimermann’s assertion, his offender complaint did

not put the examiner on notice of his “good cause”

exception. (Murphy Aff., Ex. 5, p. 7-8.) Rather, he

waited until his complaint was rejected as untimely

before asserting a factual basis for application of the

good cause exception. (Murphy Aff., Ex. 5, pp. 36-38.)

Heimermann has thus waived this argument;

therefore, the court holds that Heimermann failed to

exhaust his administrative remedies and finds that

his contract claims must be dismissed.’

’ In an alternative, undeveloped argument, Heimermann

also asserts that no administrative remedies were available to

him on his contract claims. However, the court need not address

this argument because Wis. Admin. Code § DOC 310.01(2)a)

makes clear that the inmate complaint review system is meant

to address conduct of the type alleged here.

App. 19

Il. “HECK” CLAIM

The Civil Rights Act, §1983, states in part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity, or other

proper proceeding for redress, except that in

any action brought against a judicial officer

for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was vio-

lated or declaratory relief was unavailable.

42 U.S.C. §1983. Thus, “{iJIn [sic] order to state a

claim under §1983 a plaintiff must allege: (1) that

defendants deprived him of a federal constitutional

right; and (2) that the defendants acted under the

color of state law.” Savory v. Lyons, 469 F.3d 667, 670

(7th Cir. 2006).

While the United States Supreme Court has

described §1983 as a broad, general statute, the

Court has chosen to limit its applicability in actions

where the specific language of the federal habeas

corpus statute would also apply. Preiser v. Rodriguez,

411 U.S. 475, 489 & 500 (1973). As such, in Prieser.

the Court held that:

App. 20

when a state prisoner is challenging the very

fact or duration of his physical imprison-

ment, and the relief he seeks is a

determination that he is_ entitled to

immediate release or a speedier release from

that imprisonment, his sole federal remedy

is a writ of habeas corpus.

Id. at 500.

In Heck v. Humphrey, 512 U.S. 477, 486-87

(1994), the Court further explained:

in order to recover damages for allegedly

unconstitutional conviction or imprisonment,

or for other harm caused by actions whose

unlawfulness would render a conviction or

sentence invalid, a §1983 plaintiff must

prove that the conviction or sentence has

been reversed on direct appeal, expunged by

executive order, declared invalid by a state

tribunal authorized to make — such

determination, or called into question by a

federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254. A claim for

damages bearing that relationship to a

conviction or sentence that has not been so

invalidated is not cognizable under § 1983.

Thus, when a state prisoner seeks darnages

in a §1983 suit, the district court must

consider whether a judgment in favor of the

plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it

would, the complaint must be dismissed

unless the plaintiff can demonstrate that the

conviction or sentence has already been

App. 21

invalidated. But if the _ district court

determines that the plaintiff’s action, even if

successful, will mot demonstrate’ the

invalidity of any outstanding criminal

judgment against the plaintiff, the action

should be allowed to proceed, in the absence

of some other bar to the suit.

In summarizing the Preiser and Heck line of

cases, the Court recently stated:

[t]hese cases, taken together, indicate that a

state prisoner’s §1983 action is_ barred

(absent prior invalidation) — no matter the

relief sought (damages or equitable relief),

no matter the target of the prisoner’s suit

(state conduct leading to conviction or

internal prison proceedings) — if success in

that action would necessarily demonstrate

the invalidity of confinement or its duration.

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).

In the case at bar, Heimermann alleges that

certain State Defendants have denied him access to

exculpatory testimony. As such, he seeks “

evidence to demonstrate his factual innocence.”

(Heimermann Br. p. 7.) Heimermann himself

concedes that this claim is susceptible to the Heck

analysis, but argues that “this suit is not, and should

not be construed as, an action to question the validity

of his conviction or sentence.” (Id.) Not surprisingly,

the State Defendants disagree.

The Seventh Circuit Court of Appeals recently

stated “[s]pecial attention ... must be given to the

App. 22

manner in which the plaintiff frames his complaint,

and the consequences that would follow from a

favorable disposition.” Savory, 469 F.3d at 672.

Looking to the factual allegations cited in support of

this claim, Heimermann’s phrasing of the cause of

action and the fourth paragraph of his “Prayer for

Relief”, the court finds that Heimermann is seeking

exculpatory testimony, which would necessarily call

into question the validity of his underlying conviction.

(Compl. 4952-57, 109; p. 47.) He is not asking for

evidence that may or may not result in his release, he

is asking for exculpatory testimony that is “the

missing ingredient to [his] release from prison

recipe.” (Id. 4109.) In essence, Heimermann is

challenging the very fact of his imprisonment. As

such, this court finds that Heimermann’s “Heck”

claim is barred and should be dismissed.

Hil. ACCESS TO COURTS CLAIM

Under the due process clause, prisoners have a

constitutional right of meaningful access to the

courts. Bounds v. Smith, 430 U.S. 817, 822 (1977). In

his third cause of action, Heimermann alleges that

certain State Defendants violated this right during a

1999 habeas proceeding by withholding information

from the judge. Specifically, that State Defendants

withheld information regarding Piscitello’s excul-

patory testimony, which hampered his ability to prove

his factual innocence. Heimermann’s claim, however,

is not cognizable under §1983.

App. 23

As with his “Heck” claim, Heimermann’s access

to courts claim seeks exculpatory testimony, which

would necessarily call into question the validity of his

underlying conviction. Because this third cause of

action challenges the very fact of imprisonment, it is

barred by Heck; therefore, Heimermann’s access to

courts claim is dismissed.

IV. FAILURE TO PROTECT CLAIM

The State Defendants do not, at this time, seek

dismissal of Heimermann’s failure to protect claim,

but reserve their right to do so in the future;

therefore, the court will not address the issue at this

juncture.

V. RETALIATION CLAIMS

“Prisoners are entitled to utilize available

grievance procedures without threat of recrimi-

nation....” Hoskins v. Lenear 395 F.3d 372 (7th Cir.

2005) (internal citation omitted). In his fifth and sixth

causes of action, Heimermann alleges that certain

State Defendants subjected him to “systemic

discipline and prison transfer” because of his

litigation activities and that the resulting conduct

reports and periods of solitary confinement violated

his Eighth and Fourteenth Amendment rights.

(Compl. 99114-15.) However, as with his contract

claims, Heimermann has failed to exhaust his

administrative remedies on his retaliation claims.

App. 24

The State Defendants argue that the only

offender complaint in which Heimermann raised

issues of retaliation is complaint number WCI-2003-

39925. (Murphy Aff., Ex. 8.) The complaint examiner

rejected that complaint as untimely under Wis.

Admin. Code § DOC 310.11(5)(d).° (Murphy Aff., Ex.

7, p. 2.) Based on this rejection, the State Defendants

claim that Heimermann failed to exhaust his

administrative remedies.

Heimermann, however, claims that he was not

required to file an offender complaint because the

complaint in this action gave the State Defendants

sufficient notice of his claims against them.

Heimermann confuses the law regarding sufficiency

of pleading with that of administrative exhaustion.

While it is true that his complaint need only specify

the bare minimum of facts necessary to put the State

Defendants on notice of his claims in this action,

Heimermann must still satisfy Wisconsin’s adminis-

trative exhaustion requirements.

As noted above, when an inmate complaint is

rejected as untimely, the inmate has failed to exhaust

his or her administrative remedies. State ex rel.

* Wis. Admin. Code § DOC 310.11(5)(d) provides:

(5) The ICE may reject a complaint for the following

reasons:

(d) The inmate submitted the complaint beyond 14

calendar days from the date of the occurrence giving

rise to the complaint and provides no good cause for

the ICE to extend the time limits

App. 25

Laurich, 2004 WI App 150, 49. Because Heimermann

failed to do so with respect to his retaliation claims,

those claims must be dismissed.

VI. INTERFERENCE WITH BUSINESS CLAIMS

A. First Amendment Rights

The State Defendants do not, at this time, seek

dismissal of Heimermann’s claim that his first

amendment rights were violated by certain State

Defendants alleged interference with his business

communications. As such, the court does not address

the issue at this juncture.

B. Due Process Rights

“The procedural guarantees of the Due Process

Clause apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s

protection of liberty and property.” Taplick v. City of

Madison Personnel Bd., 97 Wis. 2d 162, 169, 293

N.W.2d 173 (1980). Therefore, to determine whether

the requirements of the Due Process Clause apply, a

court must first look to the nature of the interest at

stake. Board of Regents of State Colleges v. Roth, 408

U.S. 564, 570-71 (1972).

In the instant action, Heimermann appears to

argue that he has both a property and liberty interest

in “his communications with outsiders about his

lawfully established businesses....” (Heimermann

Br., p. 11.) However, after reviewing Heimermann’s

App. 26

complaint, this court finds no allegations describing a

deprivation of either a property or liberty interest.

First of all, “[ Jthough an individual does not lose

all his constitutional rights upon being imprisoned,

his rights are clearly circumscribed.” Secret uv.

Brierton, 584 F. 2d 823, 829 (7th Cir. 1978) (internal

citation omitted). As such, “one’s right to possess

personal property is severely diminished upon

imprisonment.” Jd. at 830. Secondly, “[pjroperty

interests are not created by the Constitution; they are

created and defined by existing rules or mutually

explicit understandings that stem from an inde-

pendent source such as state laws, ordinances or an

implied contract that secure certain benefits and

support claims of entitlement to those benefits.”

Taplick, 97 Wis. 2d at 170 (internal citation omitted).

Third, Wis. Admin. Code. § DOC 303.32(1)

prohibits inmates from engaging in “a business or

enterprise” except for in limited circumstances not

applicable here. However, even if this court were to

Wis. Admin. Code § DOC 303.32(1) provides

(1) Any inmate who engages in a business or

enterprise, whether or not for profit, or who sells

anything except as specifically allowed under other

sections is guilty of an offense, except for the following

situation

(a) An inmate who was owner or part owner ol

any business or enterprise prior to sentencing may

communicate with the inmate's manager or partner

concerning the management of the enterprise or

business

Continued on following page

App. 27

find one of these exceptions applicable, the Wisconsin

Court of Appeals has previously held that “prison

administrative rules are not enacted for the benefit of

individual inmates and do not create any liberty or

property interests.” Richards v. Cullen, 152 Wis. 2d

710, 713, 449 N.W.2d 318 (Ct. App. 1989).

Heimermann has thus failed to identify the source of

any property interest of which he was allegedly

deprived.

Heimermann, however, also claims to have a

liberty interest at stake. Citing Procunier v. Martinez,

416 U.S. 396, 418 (1974); in which the United State

[sic] Supreme Court noted that prisoners have a

liberty interest in uncensored communication by let-

ter, Heimermann argues that he has a liberty interest

in unfettered communications with outsiders. What

Iileimermann fails to address is the Court’s proviso

that even this liberty interest is “qualified of neces

sity by the circumstance of imprisonment.” Jd. Nor

does he claim that the State Defendants violated any

of the various procedures under which the Court

found that a prisoner’s mail may be censored. See, Jd

at 418-419. Thus, Heimermann has also failed to

allege any deprivation of a liberty interest.

[In short, Heimermann’s complaint contains no

allegations of any deprivation of either a liberty or

(b) An inmate may write and seck publication of

works in accordance with these rules and institutiona!

polic ies and proccuures

App. 28

property interest subject to the procedural guaran-

tees of the Due Process Clause. As such, he has failed

to state a due process claim against the State

Defendants. For these reasons, the court finds that

his interference with business claims grounded in due

process should be dismissed.

VII. ORGANIZED CRIME AND RACKETEER-

ING CLAIMS

In his brief, Heimermann alleges that certain

unspecified State Defendants violated the WOCCA

and RICO." (Heimermann Br., p. 12.) Specifically,

that these State Defendants’ interference with his

prospective business and _ contractual relations

violated both acts. However, his complaint fails to

allege violations of either provision and thus failed to

provide the State Defendants with sufficient notice of

such claims. As_ such, the court holds’ that

Heimermann may not proceed with these claims at

this time.

CONCLUSION

As Heimermann failed to exhaust his adminis-

trative remedies with respect to his contract claim,

his contract claims against the State Defendants are

DISMISSED. Similarly, Heimermann failed to

exhaust his administrative remedies with respect to

Heimermann contends that these claims were included in

various submissions to this court in April of 2007. (Heimermann

Br., p. 12.)

App. 29

his two retaliation claims, thus both retaliation

claims against the State Defendants are also

DISMISSED.

Because Heimermann is challenging the very fact

of his imprisonment, the court finds that his “Heck”

claim is barred. As such, Heimermann’s “Heck” claim

against the State Defendants is also DISMISSED.

Heimermann’s access to courts claims also challenges

the very fact of imprisonment; therefore, it is likewise

barred by Heck and also DISMISSED.

Heimermann’s complaint contains no allegations

of any deprivation of either a liberty or property

interest subject to the procedural guarantees of the

Due Process Clause. As such, he has failed to state a

due process claim against the State Defendants and

his interference with business claims grounded in due

process are DISMISSED.

Finally, because Heimermann’s complaint does

not contain allegations regarding any violation of

either the WOCCA or RICO laws, Heimermann may

not proceed on those claims at this time. Thus, only

Heimermann’s failure-to-protect and First Amend-

ment based business claims against the State

Defendants remain.

This Decision and Order is not a final order that

disposes of the entire matter in litigation as to any

party and is not intended by the court to be an

appealable order within the meaning of sec. 808.03(1).

Wis. Stats.

App. 30

IT IS SOQ ORDERED by the Court this 27th day

of September, 2007.

/s/ David T. Flanagan

Judge David Flanagan

CC: AAG Mary Elizabeth Sheehan

Attorney Raymond J. Pollen

Scott A. Heimermann