Dale Peshek v. Kirsten Johnson

111 F.4th 799

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 5, 2024
• Docket: 23-2303
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2303 DALE PESHEK and BRIAN THRELKELD, Plaintiffs-Appellants, v.

KIRSTEN JOHNSON, Secretary of the Wisconsin Department of Health Services, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:21-cv-01061-PP — Pamela Pepper, Chief Judge. ____________________

ARGUED APRIL 18, 2024 — DECIDED AUGUST 5, 2024 ____________________

Before SYKES, Chief Judge, BRENNAN, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. After Brian Threlkeld served a prison sentence for sexually assaulting a minor, the State of Wisconsin civilly committed him as a sexually violent person in 2008. Eleven years later, in 2020, the State agreed that Threlkeld was eligible for supervised release subject to the identification of suitable housing (for example, a residence 2 No. 23-2303

not too close to schools and parks) within Kenosha County, his former county of residence. But to date Kenosha County— the entity charged by the Wisconsin State Legislature with identifying an appropriate residential option—has not been able to do so, leaving Threlkeld civilly committed. Tired of waiting and convinced that the State’s housing criteria are too restrictive to ever be met within a county as populated as Ke- nosha, Threlkeld brought this suit in federal court, alleging a violation of his rights under the Fourteenth Amendment to the U.S. Constitution. Naming Wisconsin’s Secretary of Health Services as the sole defendant, Threlkeld sought to en- join enforcement of the State’s supervised release housing cri- teria in chapter 980.08 of the Wisconsin Statutes. The district court emphasized that Threlkeld brought the federal action at a time when proceedings remained ongoing in the Kenosha County Circuit Court to identify a suitable housing arrangement. To avoid interfering with those pro- ceedings, the district court abstained from exercising jurisdic- tion under Younger v. Harris, 401 U.S. 37 (1971). While the dis- trict court’s analysis has much to say for itself, we see a more basic and fatal flaw with Threlkeld’s federal claim: the de- fendant he sued, the Secretary of the Department of Health Services, cannot provide him with the relief he seeks. So we affirm the dismissal of Threlkeld’s federal action. I A Everything began for Brian Threlkeld in 2000, when a Wis- consin jury convicted him of sexually assaulting his 14-year- old half-brother. The Kenosha County Circuit Court sen- tenced him to 10 years’ imprisonment. Threlkeld was released No. 23-2303 3

on parole in 2005. Two years later, he violated the terms of release and, after being reincarcerated, sexually assaulted his half-brother yet again inside—of all places—the Racine Cor- rectional Institution. All of this led the Wisconsin Attorney General in 2008 to petition the Kenosha County Circuit Court to civilly commit Threlkeld as a sexually violent person under chapter 980. See Wis. Stat. § 980.02. The ensuing jury trial ended in a finding that the state had met its burden of proving beyond a reasonable doubt that Threlkeld was a sexually vio- lent person. See id. at § 980.05(5). The court ordered Threlkeld’s civil commitment at the Sand Ridge Secure Treat- ment Center, where he has remained for the last 16 years. In February 2020 the Kenosha County Circuit Court deter- mined that Threlkeld was eligible for supervised release sub- ject to the identification of suitable housing under the stand- ards prescribed by Wis. Stat. § 980.08. That provision author- izes supervised release only when the county of the commit- ted person’s residence identifies a housing option “not less than 1,500 feet from any school premises, child care facility, public park, place of worship, or youth center” and not “ad- jacent to a property where a child’s primary residence exists,” among other criteria. Wis. Stat. § 980.08(4)(dm)(1). With Threlkeld’s county of residence being Kenosha, the Kenosha County Circuit Court has the final discretion to approve any proposed housing option. See id. at § 980.08(4)(g). Kenosha County identified compliant housing in the Vil- lage of Trevor more than twelve months after the court agreed that Threlkeld was eligible for supervised release. But a week before Threlkeld’s scheduled release, the Village notified the local sheriff that there was a park within 1,300 feet of the pro- posed home. This finding led the Kenosha County Circuit 4 No. 23-2303

Court in May 2021 both to declare the proposed housing ar- rangement non-compliant with Wis. Stat. § 980.08 and to or- der the preparation of a new supervised release plan. See id. at § 980.08(4)(g). Meanwhile, in February 2022, and undoubtedly frustrated by remaining civilly committed a year after being approved for supervised release, Threlkeld went on the offensive. It was then that he petitioned the Kenosha County Circuit Court to discharge his ongoing civil commitment. See Wis. Stat. § 980.09. That petition triggered a trial, which concluded with the state judge finding that Threlkeld remained a sexually vi- olent person—a decision recently affirmed on appeal. See In re Commitment of Threlkeld, No. 2023AP487, 2024 WL 3168896 (Wis. Ct. App. June 26, 2024); see also Wis. Stat. § 980.09(1). Four years have now passed since the Kenosha County Circuit Court found Threlkeld conditionally suitable for su- pervised release. Efforts remain ongoing to identify compli- ant housing while Threlkeld’s petition for supervised release remains on the Kenosha court’s docket. Indeed, the court en- tered a treatment progress reevaluation report under Wis. Stat. § 980.07 in April 2024. For today, though, Threlkeld remains civilly committed at Sand Ridge. B In September 2021, Threlkeld joined Dale Peshek and Hung Tran—who, at that time, were also civilly committed at Sand Ridge—bringing a class action complaint in federal court against the Wisconsin Secretary of Health Services (presently Kristen Johnson) under 42 U.S.C. § 1983. The com- plaint alleged violations of the Due Process and Equal No. 23-2303 5

Protection Clauses of the Fourteenth Amendment and urged the district court to declare unconstitutional and enjoin en- forcement of the civil commitment statute’s supervised re- lease residency conditions in Wis. Stat. § 980.08. More specif- ically, Threlkeld, Peshek, and Tran alleged that the identifica- tion of compliant housing is all but impossible in densely pop- ulated counties (like Milwaukee, Dane, Kenosha, and others), as all potential options have proven to be too close to schools, parks, and other locations frequented by children. This cir- cumstance, the complaint continues, risks indefinite civil commitment—a reality not allowed by the Fourteenth Amendment. The district court recognized the gravity of the allegations while also observing that proceedings remained ongoing in Wisconsin courts to identify compliant supervised release housing arrangements for Threlkeld, Peshek, and Tran. Those proceedings—and the underlying efforts by county officials to identify housing options—led the district court to abstain from exercising federal jurisdiction under Younger v. Harris, 401 U.S. 37 (1971). Rooted in principles of comity and federalism, Younger ab- stention is an exception to the general rule that federal courts must hear cases properly within its jurisdiction. A federal court may not abstain or otherwise decline to exercise juris- diction “simply because a pending state-court proceeding in- volves the same subject matter.” Sprint Commc’ns, Inc. v. Ja- cobs, 571 U.S. 69, 72 (2013). Indeed, only under three “excep- tional circumstances” may federal courts decline to “decide a case in deference to the States”: in ongoing state criminal prosecutions, in certain “civil enforcement proceedings,” and in “pending civil proceedings involving certain orders … 6 No. 23-2303

uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 78 (citing New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 368 (1989)). The district court determined that the broad federal con- stitutional challenge leveled by Threlkeld, Peshek, and Tran at Wis. Stat. § 980.08 fell within an exceptional circumstance category. It reasoned that the ongoing chapter 980 proceed- ings were civil enforcement proceedings, making abstention warranted to avoid unduly interfering with the efforts of state and county officials to identify compliant housing. Threlkeld and Peshek now appeal as the only remaining plaintiffs in the federal action. Tran petitioned for and re- ceived a discharge from civil commitment leading to release before this appeal was filed. And while this litigation was pending, Peshek likewise received a discharge from civil com- mitment. Peshek’s release thereby moots his federal claims, and by extension, his appeal. See DeFunis v. Odegaard, 416 U.S. 312, 319–20 (1974) (holding that claim is moot where the plain- tiff receives the requested relief before the litigation of the claim is complete). II What most troubled the district court concerns us too. In choosing to abstain from exercising jurisdiction under Younger, the district court emphasized that proceedings re- garding Brian Threlkeld’s supervised release remain pending in the Kenosha County Circuit Court, with the County itself continuing to try to identify a compliant housing option—all pursuant to the process and parameters prescribed by Wis. Stat. § 980.08. In these circumstances, the district court chose No. 23-2303 7

to abstain under Younger to avoid interfering with efforts to resolve what everyone agrees is a most challenging circum- stance—trying to find placement for Threlkeld on supervised release that is both safe to the community and provides him with the transition resources necessary to one day result in his discharge from Wisconsin’s civil commitment program. See Howe v. Hughes, 74 F.4th 849, 851 (7th Cir. 2023). We devoted a substantial portion of oral argument to sounding identical concerns, including by asking why Threlkeld has not raised the exact same constitutional claims he presses in federal court in either ongoing chapter 980 pro- ceedings or in a collateral proceeding in the Kenosha County Circuit Court. We see no reason—and no barrier in Wisconsin law—to his doing so. Indeed, the North Western Reporter contains scores of decisions in which Wisconsin courts have considered and resolved a range of constitutional challenges to one or another dimension of chapter 980’s civil commit- ment of sexually violent persons. See, e.g., In re Commitment of Feldmann, 730 N.W.2d 440 (Wis. 2007) (reviewing equal pro- tection and due process challenges); In re Commitment of Beyer, 707 N.W.2d 509 (Wis. 2006) (reviewing a due process chal- lenge to a committed person’s detention over twenty-two months after deemed eligible for release); In re Commitment of Bush, 699 N.W.2d 80 (Wis. 2005) (reviewing a due process challenge); In re Commitment of Burris, 682 N.W.2d 812 (Wis. 2004) (same); State v. Carpenter, 541 N.W.2d 105 (Wis. 1995) (reviewing equal protection, due process, double jeopardy, and ex post facto challenges); In re Commitment of Curiel, 597 N.W.2d 697 (Wis. 1999) (reviewing equal protection and vagueness challenges); State v. Post, 541 N.W.2d 115 (Wis. 1995) (reviewing substantive due process and equal protec- tion challenges). Time and again, chapter 980 has withstood 8 No. 23-2303

constitutional challenges. See In re Commitment of Schulpius, 678 N.W.2d 369, 383 (Wis. Ct. App. 2004) (collecting cases). We are aware of nothing in Wisconsin law that prevents Threlkeld from pressing the exact constitutional challenge featured in his federal complaint in his ongoing chapter 980 proceedings—an observation the Secretary’s counsel affirma- tively agreed with at oral argument. To put the point in posi- tive terms, we have every reason to believe the Kenosha County Court will treat Threlkeld’s claim with the gravity it deserves, for the State enters very delicate constitutional ter- ritory by continuing to civilly detain someone determined many years ago to be suitable for conditional release. See Howe, 74 F.4th at 853 (canvassing the Supreme Court’s civil commitment jurisprudence and explaining that “[i]ndefinite civil commitment with no meaningful treatment and no real- istic possibility of release violates the constitutional command that ‘the nature of commitment [must] bear some reasonable relation to the purpose for which the individual is commit- ted’” (quoting Foucha v. Louisiana, 504 U.S. 71, 79 (1992))). For his part, Threlkeld sees Younger as a misfit and urges us to reinstate his federal complaint. In pressing this point, he focuses exclusively on the fact that his chapter 980 proceed- ings are now in the supervised release phase—a stage he sees as almost entirely civil and entirely distinct from the 2009 de- termination that he is a sexually violent person. This distinc- tion is meaningful, Threlkeld tells us, because his ongoing su- pervised release proceedings do not amount to an exceptional circumstance justifying Younger abstention, even though orig- inal civil commitment proceedings would. See Sweeney v. Bartow, 612 F.3d 571, 573 (7th Cir. 2010). No. 23-2303 9

We are skeptical of the distinction Threlkeld invites us to draw and read Sweeney as more broadly concluding that chapter 980 proceedings are a kind of state civil proceeding akin to a criminal prosecution under Younger. See id. In the end, then, and especially given the ongoing proceedings in the Kenosha County Circuit Court to identify a suitable hous- ing option for Threlkeld, we have a difficult time finding fault with the district court’s invocation of Younger. At a broader level, and regardless of Younger’s application, we see a fatal deficiency in the suit Threlkeld brought in fed- eral court: he named the wrong defendant. Recognize the nature of Threlkeld’s federal lawsuit. He named one and only one defendant—the Secretary of the De- partment of Health Services in her official capacity—and sought only a declaration of § 980.08’s unconstitutionality un- der the Fourteenth Amendment and an injunction precluding future enforcement of the provision’s supervised release housing limitations. Put another way, Threlkeld brought what the law often calls an Ex parte Young suit. Ex parte Young suits embrace a legal “fiction” that permits private parties to sue state officials “for prospective relief to enjoin ongoing violations of federal law.” Lukaszczyk v. Cook Cnty., 47 F.4th 587, 604 (7th Cir. 2022) (internal quotation marks and citation omitted). The Secretary must have “‘some connection with the enforcement’ of an allegedly unconstitu- tional state statute for the purpose of enjoining that enforce- ment” for Threlkeld to take advantage of Ex parte Young and strip the Secretary of the official character of her duties, thereby leaving her open to liability. Doe v. Holcomb, 883 F.3d 971, 975 (7th Cir. 2018) (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). Otherwise, principles of Eleventh Amendment 10 No. 23-2303

sovereign immunity preclude the lawsuit against the Secre- tary. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). Therein lies the critical deficiency with Threlkeld’s federal action. All agree that the Department of Health Services (and thereby its Secretary) is responsible for devising the super- vised release plan and maintaining legal custody of a person during a period of supervised release. See §§ 980.08(4)(f)– 980.08(6m). And so too does the Department play a role in as- sisting Kenosha County with identifying suitable housing ar- rangements for sexually violent persons authorized for super- vised release. See id. at § 980.08(4)(dm)(1), (6m). But the De- partment’s playing those roles does not mean the Secretary is the state official charged with overall enforcement of chapter 980 or even § 980.08 specifically. We see the ultimate responsibility for enforcing chapter 980 as borne by the State’s Attorney General, or in some in- stances, the district attorney in the relevant county. See Wis. Stat. §§ 165.255, 980.02(1) (granting the state department of justice and the district attorney in some circumstances the au- thority to represent the state in chapter 980 proceedings). Every indication is that Threlkeld’s chapter 980 proceedings have consumed substantial resources in the Kenosha County Circuit Court, with the Attorney General—as the State’s chief law enforcement officer—representing the State at every stage, including now in the ongoing proceedings designed to identify a compliant housing option. In short, we cannot say that the Secretary has much of a role, if any, in enforcing chap- ter 980. She therefore lacks a sufficient connection with the en- forcement of the law, so Threlkeld cannot lodge an Ex parte Young suit against her. No. 23-2303 11

A companion observation follows. By naming the wrong defendant, Threlkeld sought relief against a state official who cannot provide it. And that reality reveals an even more fun- damental shortcoming in his federal lawsuit. We lack subject- matter jurisdiction where, as here, the named defendant (the Secretary of Health Services) cannot redress the alleged con- stitutional injury (a deprivation of liberty for seemingly indef- inite civil custody). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). So no matter how we approach the appeal and view Threlkeld’s federal claim—whether by focusing on Younger abstention or on the state officials charged with enforcing Wisconsin’s civil commitment program—we see no way to do anything other than affirm the district court’s dismissal of Threlkeld’s federal action under Fed. R. Civ. P. 12(b)(1). III Today’s decision is limited. In no way are we saying that § 1983 constitutional challenges against state actors are al- ways and altogether off limits for sexually violent persons civ- illy committed under Wisconsin law. But we are saying that Brian Threlkeld’s particular lawsuit—challenging enforce- ment of the housing restrictions in Wis. Stat. § 980.08—does not warrant federal court intervention at a time when Ke- nosha County continues to search for proper supervised re- lease placement. Federalism concerns take center stage here, where we must carefully consider “the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 649 (2002) (Kennedy, J., concur- ring); see also Howe, 74 F.4th at 851 (“The Fourteenth Amend- ment’s Due Process Clause permits the balance of [] interests 12 No. 23-2303

to tip in the state’s favor—but only if the state adheres to par- ticular mandates to ensure the liberty restrictions go no fur- ther and last no longer than necessary.”). And even if we could get beyond those considerations, we have no doubt Threlkeld sued the wrong defendant. But today’s decision should leave no doubt on another front. We see nothing preventing Brian Threlkeld from press- ing his constitutional concerns with the application of Wis. Stat. § 980.08 in state court. See Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 524 (7th Cir. 2021) (emphasizing that state courts are “interested in and fully capable of ensuring that state agencies comply with federal due-process require- ments”). Civil commitment is serious constitutional business, and the claims Brian Threlkeld sought to pursue in federal court fall squarely in that category. With these closing observations, we AFFIRM the district court’s dismissal for lack of federal subject-matter jurisdic- tion.