Domka, James v. Portage County ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2984
JAMES D OMKA,
Plaintiff-Appellant,
v.
P ORTAGE C OUNTY, W ISCONSIN,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-C-0063-S—John C. Shabaz, Judge.
____________
A RGUED F EBRUARY 14, 2008—D ECIDED A PRIL 24, 2008
____________
Before M ANION, R OVNER and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. As a result of James Domka’s plea
bargain following his third-offense arrest for driving
under the influence, his sentence included work-release
privileges (known in Wisconsin as “Huber privileges”) and
the opportunity to serve the majority of his jail time at
home under Portage County’s Home Detention Program
(“HDP”). While under the HDP, Domka registered a
positive alcohol reading on a Sobrietor, an alcohol breath-
test machine connected to the Sheriff’s Department
through Domka’s phone line. Domka’s Huber privileges
2 No. 07-2984
and participation in the HDP were then revoked and he
was required to serve his remaining time in jail. Domka
filed suit against Portage County under 42 U.S.C. § 1983,
alleging that he had constitutionally protected liberty
interests in his Huber privileges and the HDP and that, in
violation of the Fourteenth Amendment, he was deprived
of these without the requisite procedural due process. The
district court found that Domka had waived any con-
stitutionally required due process rights he may have had,
and granted Portage County’s motion for summary
judgment. We agree with the district court and affirm
its decision.
I.
On December 10, 2004, James Domka drove his car into
a ditch. Found to have an alcohol content of .179, Domka
was charged with his third offense Operating Under the
Influence of Intoxicants and on April 22, 2005 was sen-
tenced to 105 days in jail with Huber work-release privi-
leges, the first 30 to be served in jail and the balance on
electronic monitoring. Pursuant to his plea agreement and
the sentence, Domka was to have Huber privileges 1 both
while serving in the jail and while finishing his sentence
outside the jail on an electronic monitor under Wisconsin’s
Home Detention Program (“HDP”). Wisconsin Statute
§ 302.425, which creates the HDP, provides in relevant part:
Subject to the limitation under sub. (3), a county
sheriff or a superintendent of a house of correction may
1
Section 303.08 of the Wisconsin Statutes, also known as the
“Huber Law,” governs work release privileges for Wisconsin
county jail inmates.
No. 07-2984 3
place in the home detention program any person
confined in jail who has been arrested for, charged
with, convicted of or sentenced for a crime. The
sheriff or superintendent may transfer any prisoner in
the home detention program to the jail.
Wis. Stat. § 302.425(2).
The statute further provides:
If a prisoner described under sub. (2) and the depart-
ment agree, the sheriff or superintendent may place
the prisoner in the home detention program and
provide that the prisoner be detained at the prisoner’s
place of residence or other place designated by the
sheriff or superintendent and be monitored by an
active electronic monitoring system. The sheriff or
superintendent shall establish reasonable terms of
detention and ensure that the prisoner is provided
a written statement of those terms, including a de-
scription of the detention monitoring procedures
and requirements and of any applicable liability
issues. . . .
Wis. Stat. § 302.435(3).
The Portage County Sheriff’s Department, pursuant to
the Wisconsin statute, codified the terms of its HDP in a
three page, 24 paragraph document entitled “Portage
County Sheriff’s Department Home Detention Program”
(the “PCSDHDP”) and established the use of a Sobrietor as
part of the program.
Domka served his time in the Portage County jail from
June 7 through June 27, 2005. On June 27, Domka and
Penny Borski, the Portage County officer who was in
charge of administering the HDP, met and together
4 No. 07-2984
reviewed each of the 24 items contained in the PCSDHDP.
After indicating to Officer Borski that he understood a
provision and agreed to comply with it, Domka initialed
each paragraph individually. The following paragraphs
of the PCSDHDP are of particular relevance:
I understand the consumption of alcoholic beverages or
unlawful drugs or narcotics is prohibited and will
result in immediate removal from the Home Detention
Program, loss of Huber Privileges and returned (sic) to
the Portage County Jail. (Paragraph 8.)
I understand a violation of any of these conditions of
agreement will cause my removal from the program
without notice or avenue of appeal . . . . (Paragraph 12.)
We will not tolerate any excuses, such as, but not
limited to: failing the voice test, missing a call, failing
to get off the phone when the machine is trying to call
you etc. All the above are grounds for removal off the
Program. In addition, it is your responsibility to inform
your household of the conditions that need to be
followed. (Paragraph 16.)
As a required part of the HDP, at random times through-
out each day Domka would have to speak and blow into
the Sobrietor. At the meeting on June 27, Office Borski also
reviewed with Domka the “BI Sobrietor Client Informa-
tion” form which provided, inter alia:
Any alcohol reading on the sobrietor will result in
immediate removal from HDP and you will lose your
HDP & Huber Privileges. Be aware that ingesting any
food or drink with alcohol can result in a positive
breath alcohol test. Example, mouthwash and tooth-
paste; chewing tobacco; cough medicine; vanilla
extract; & some sauces and candies.
No. 07-2984 5
In Officer Borski’s presence, Domka signed this form as
well, below the statement which read “I understand any
violation(s) of these rules can result in termination from
the HDP Program.”
Between June 27 and July 10, 2005, the Sobrietor recorded
several failed tests as the result of user error, none of which
registered a positive alcohol reading. On Sunday, July 10,
2005 at 9:55 am, Domka’s Sobrietor test resulted in a
positive alcohol reading of .021. As with all individuals on
a Sobrietor program who test positive for alcohol, Domka
was automatically retested by the Sobrietor five minutes
later. Domka’s 10:00 am Sobrietor test again registered a
positive alcohol reading of .021.
When Office Borski returned to work early Monday
morning, July 11, and saw Domka’s Sobrietor had re-
corded two positive alcohol tests the previous day, she
called Domka and requested that he report to jail within
the hour. As a result of his violation of the PCSDHDP,
Domka’s participation in the HDP was then revoked and
his participation in the Huber program was suspended.
Domka served the balance of his sentence, 41 days, in
the Portage County jail without Huber privileges.
Domka was released on August 21, 2005 and subse-
quently brought a 42 U.S.C. § 1983 case against Portage
County, alleging that the County unconstitutionally
deprived him of liberty interests without due process.
Judge Shabaz granted the County’s motion for summary
judgment, holding that even if Domka did have liberty
interests in remaining in the HDP and Huber privileges
which would trigger constitutionally required due process,
he had waived those rights in the HDP agreements.
6 No. 07-2984
II.
Reviewing the lower court’s decision de novo and view-
ing the facts and all reasonable inferences in the light
most favorable to the party opposing judgment, e.g., CSX
Transp., Inc. v. Appalachian Railcar Servs., Inc., 509 F.3d 384,
386 (7th Cir. 2007), we agree that Domka’s case presents no
genuine issue of material fact and therefore the summary
judgment granted to Portage County should be affirmed,
see Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
A.
Domka’s first hurdle is identifying a protected interest.
“An essential component of a procedural due process claim
is a protected property or liberty interest.” Minch v. City of
Chicago, 486 F.3d 294, 302 (7th Cir. 1997) (citing Town
of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005),
Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972)). “Liberty
interests can arise from two sources: the Federal Constitu-
tion or state law.” Thielman v. Leean, 282 F.3d 478, 480 (7th
Cir. 2002) (citing Shango v. Jurich, 681 F.2d 1091, 1097 (7th
Cir. 1982). Conceding that no Wisconsin statute serves as
the source of his alleged liberty interests, Domka puts
forth two other theories to make his case: that the plea
agreement between himself and the prosecutor granted
him protected liberty interests in home detention and
Huber privileges; and that the due process clause itself
provides the basis for his liberty interest in those programs.
We easily reject the former argument. Domka had a
choice in his plea agreement; he elected to serve a total of
105 days with most of that time in the HDP with Huber
privileges rather than a shorter sentence of 75 days all to
No. 07-2984 7
be served in jail, also with Huber privileges. The plea
agreement, Domka claims, therefore gave him a “legitimate
entitlement” in those programs which entitlement gives
rise to due process requirements which were not met
here. We are unable to follow Domka’s “logic” that his
negotiations with the prosecutor ipso facto created a con-
stitutional liberty interest in the programs into which he
was subsequently placed and the three Supreme Court
cases Domka cites do nothing to bolster his case as none
of them supports his theory. Santobello v. New York, 404
U.S. 257 (1972), actually cuts the other way, as Domka
did receive the sentence he had negotiated; Kentucky Dept.
of Corrections v. Thompson, 490 U.S. 454 (1989), dealt with
the language requirements that must be contained within
a state regulation in order for a state to create a pro-
tected liberty interest; and Perry v. Sindermann, 408 U.S.
593 (1972), also not on point, involved the due process
protection of a personal property interest in employment.
Without legitimate support, Domka’s argument is a
nonstarter. Common sense dictates that the district court’s
sound analysis of this issue, that the plea agreement
between Domka and the prosecutor had no bearing on
the post-conviction agreement between Domka and
Portage, should stand. Domka received exactly what he
bargained for—the opportunity to serve a portion of his
time under the HDP with Huber privileges. What later
came to pass between Portage County and Domka in-
volving violations of the HDP agreement has nothing to
do with the plea agreement. Domka must propose another
source for his alleged liberty interests.
And he does. His argument that the due process clause
itself provides the basis for his liberty interests is more
compelling, albeit far from irrefutable. After all, as the
8 No. 07-2984
Supreme Court has recognized, “[although] prisoners do
not shed all constitutional rights at the prison
gate, . . . lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our
penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995)
(citations and internal quotation marks omitted).2 And as
the Court more recently emphasized, “[a] broad range of
choices that might infringe constitutional rights in a free
society fall within the expected conditions of confinement
of those who have suffered a lawful conviction.” McKune
v. Lile, 536 U.S. 24, 37 (2002).
Our analysis, then, must begin with the “initial question
[of] whether being removed from a home-detention
program into jail is a sufficiently large incremental reduc-
tion in freedom to be classified as a deprivation of liberty
under the Sandin doctrine, since, if not, [Domka] has no
right to due process of law.” Paige v. Hudson, 341 F.3d 642,
643 (7th Cir. 2003) (citations omitted). The law in a case
such as this, where the convict is not technically “impris-
oned,” is still evolving. What is established is that an
inmate on parole has a liberty interest in retaining that
status, Morrissey v. Brewer, 408 U.S. 471 (1972), and that
this right has been extended to pre-parolees, Young v.
Harper, 520 U.S. 143 (1997). Our recent opinion in Paige
v. Hudson broadened this principle slightly further, find-
ing that removing a probationer from home detention
2
The Sandin decision so significantly limited inmates’ pro-
tected liberty interests that we have observed that in its wake,
the only protected liberty interest remaining for inmates may
be the loss of good time credits. See Wagner v. Hanks, 128 F.3d
1173, 1176 (7th Cir. 1997).
No. 07-2984 9
status fell somewhere on the deprivation spectrum as
greater than that at stake in Sandin and less than that at
issue in Young, but qualified nonetheless as a “sufficient
reduction” in freedom to be deemed a “deprivation of
liberty” requiring due process. Paige, 341 F.3d at 643.
But we are not prepared to say that Paige is necessarily
controlling here; the fact that Domka was not a probationer
but instead a prisoner serving his time outside the jail
renders Paige distinguishable. The County makes a
valid point that revoking probation and returning some-
one who already served his sentence to incarceration, as
was the situation in Paige, is arguably a greater loss of
freedom than having Domka serve out his remaining time
of confinement in a “different location.” 3 Because we agree
with the district court’s ultimate determination that
Domka waived any due process protections that may
have been required, see infra, we save for another day the
narrow question of whether a prisoner—as opposed to a
probationer, parolee or pre-parolee—has a liberty interest
in a home detention program.4
3
Although there is no question that the HDP afforded Domka
more freedom than he would have had in prison, we agree that
between the constant electronic monitoring, the fact that he
was not allowed to leave his home except to go to work or for
other pre-approved reasons, the frequent Sobrietor tests, etc.,
Domka can appropriately be characterized as a prisoner
“serving a portion of [his] confinement in a different location
[from prison].” Portage County Br. at 42.
4
With regard to Domka’s Huber privileges, the language of
the statute itself makes clear that they are in fact privileges
which may be withdrawn by the court “at any time by order
entered with or without notice.” Wisc. Stat. § 303.08(2).
10 No. 07-2984
B.
The County compellingly argues that Domka waived
any due process rights he may have had and Domka
provides no convincing support for a contrary finding. It
is without question that an individual may waive his or
her procedural due process rights. See, e.g., D.H. Overmyer
Co. v. Frick Co., 405 U.S. 174, 185 (1972). A constitutional
waiver is considered to be valid if it is knowing and
voluntary. E.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (a
waiver ordinarily is “an intentional relinquishment or
abandonment of a known right or privilege”). See also
United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001)
(knowing and intelligent waiver “is demonstrable knowl-
edge of the right being surrendered and a formal decision
to forego that right”).5
The language in the agreement that Domka signed
which states that he could—and would—be removed from
the HDP and the Huber program if the Sobrietor regis-
tered a positive alcohol reading is completely unambigu-
ous. Domka agrees that he understood that if he vio-
lated any condition of the HDP, including the Sobrietor
portion of the program, he would be removed from the
program without notice.6 Domka alleges, however, that
5
Domka attempts to equate his situation to one in which a
state actor conditions the receipt of a state benefit “such as a
liquor license or an entertainment permit” on a waiver of
constitutional rights. See Domka Br. at 39. This analogy falls
short. Domka is a convicted prisoner, not a businessman
attempting to obtain state licensing.
6
Domka has reiterated this understanding several times during
the course of this case. See, e.g., Domka’s deposition (R. 21);
(continued...)
No. 07-2984 11
Officer Borski made certain statements during their June
27th meeting which constituted oral modifications to the
agreement. He claims that because he relied on these
statements, and because they muddied an already ambigu-
ous contract, it was impossible for him to be deemed as
having made a “knowing and intelligent” waiver of his
due process rights. Domka’s argument hinges on his
claim that Officer Borski told him that if at any time the
Sobrietor tested positive for alcohol, someone from the
jail would come within two hours to administer another
test. If the second test was negative for alcohol, Domka
would then have a blood test for an ultimate determination
of alcohol consumption. The County disputes that Officer
Borski ever said this.7
Because this is a motion for summary judgment, the
facts must be considered in the light most favorable to
Domka, the non-moving party, and ambiguities must be
resolved in his favor. See, e.g., Payne v. Pauley, 337 F.3d 767,
773 (7th Cir. 2003). In support of his opposition to the
County’s motion, it is entirely appropriate for Domka to
rely here on his own testimony to the extent it is admissible
under the Federal Rules of Evidence. See id. at 771-73.
(...continued)
Plaintiff’s Response to Defendant’s Proposed Findings of Fact
and Conclusions of Law (R.33 at 12, para. 37).
7
There are other statement that the parties agree Officer Borski
made to Domka at that meeting, including telling him that
he should rinse his mouth with water before each Sobrietor
test; and that he could go into the yard to feed his animals from
12-1 pm notwithstanding that the PCSDHDP agreement
specified that he must remain inside the house (not in the
yard or on the porch) when he was not at work.
12 No. 07-2984
Therefore, for purposes of this appeal we must accept
Domka’s version of the conversation he had with Officer
Borski on June 27 regarding retesting.
But even accepting Domka’s version of the conversation,
we remain disinclined to accept his argument. The clear
statement of the signed, written agreement that “[a]ny
alcohol reading on the Sobrietor will result in an immedi-
ate removal from HDP and you will lose your HDP and
Huber Privileges” does not predicate removal from HDP
and of Huber on Domka actually consuming alcohol, but
only on a positive Sobrietor reading.8 Officer Borski’s
comment about retesting renders the agreement no less
unambiguous, and the County’s case is significantly
buttressed by the fact that Domka has admitted over
and over that he understood that if he violated any condi-
tion of the HDP, including the Sobrietor portion of the
program, he would be removed from the program with-
out notice. See n.6, supra.
C.
Domka would have this Court find his waiver invalid
because, he claims, the PCSDHSP constitutes an unen-
forceable “contract of adhesion,” a “take it or leave it”
agreement presented by the County, the party with the
power, without the opportunity for Domka to have negoti-
ated its terms. Domka’s failure to have made this argu-
8
For this reason, Domka’s arguments that that he did not
actually have any alcohol while on in the HDP, that the
Sobrietor’s positive result was in fact a “false positive” and that
the Sobrietor was unreliable (assuming Domka is even
qualified to address this issue) are immaterial here.
No. 07-2984 13
ment in the court below, however, prevents us from now
considering it. “It is a well-settled rule that a party oppos-
ing a summary judgment motion must inform the trial
judge of the reasons, legal or factual, why summary
judgment should not be entered. If it does not do so, and
loses the motion, it cannot raise such reasons on appeal.”
Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983)
(citations omitted). See also Economy Folding Box Corp. v.
Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir. 2008)
(“it is axiomatic that an issue not first presented to the
district court may not be raised before the appellate court
as a ground for reversal” (citations and internal quotations
omitted)). Domka attempts to skirt this waiver rule by
claiming that although he may not have used the specific
terminology below, the essence of the argument he put
forth in the district court is consistent with this contract of
adhesion theory. He refers us to the “long section [in his
brief below] arguing that the alleged waiver was not
knowing, intelligent and voluntary …” (Domka Reply Br.
at 11) in purported support. There are several flaws with
this argument. First and telling, Domka’s district court
brief does not vigorously argue that the waiver was
involuntary but focuses instead on it not being knowing
and intelligent. R.31.9 Moreover, although our examina-
tion of Domka’s brief below does reveal two instances in
which Domka used language about disparate bargaining
power (one of which also makes reference to a “standard
9
This is the so notwithstanding Domka’s current assertion
that “[t]he message of Overmyer, Fuentes and their progeny is
that a non-negotiable adhesion contract … can never be seen
as knowing, intelligent and, most important, voluntary.” Domka
Br. at 46 (emphasis added).
14 No. 07-2984
form”),10 his argument in the district court was all about
Borski’s alleged “verbal addenda” creating ambiguities
concerning the rights he waived such that his waiver could
not be deemed knowing and intelligent. Even the most
liberal reading cannot find buried within this argument
the one Domka is now espousing—namely, that the entire
agreement (including the waiver) is unenforceable as a
contract of adhesion. 1 1
Here, where no “jurisdictional questions are presented”
and we are not presented with an “exceptional case[] [in
which] justice demands more flexibility,” Stern v. U.S.
Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir. 1977), we find
no justification to depart from the long-standing rule
10
Domka argued below (1) that black letter law requires
ambiguities to be construed against the drafter “particularly
where there is substantial disparity of power between the
parties, and the contract is on a standard form supplied by the
drafter”, citing a Wisconsin state case (R.31 at 21); and (2) that
“[u]nder the circumstances, where Domka was an inmate and
Borski was an officer with authority over him, it was reason-
able for Domka to rely upon Borski’s verbal explanation and
assertions” (R.31 at 24, n.5).
11
Even if we agreed that Domka did put forth below the gen-
eral theory that his inability to negotiate the contract rendered
it unfair, we could not now properly consider his contract of
adhesion argument. See Libertyville Datsun Sales, Inc. v. Nissan
Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985) (where a party
raises a specific argument for the first time on appeal, it is
waived even though the “general issue” was before the dis-
trict court) (collecting cases).
No. 07-2984 15
against considering new arguments on appeal.1 2 “For ‘[t]o
reverse the district court on grounds not presented to it
would undermine the essential function of the district
court.’” Economy Folding Box, 515 F.3d at 720 (quoting Boyers
v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 812 (7th Cir.
1988)). Accordingly, we do not consider Domka’s con-
tract of adhesion argument.
D.
Lastly, we address Domka’s claim that the County
violated his due process by failing to seek a court order
for the suspension of his Huber privileges after he was re-
imprisoned. The Huber statute states that “[a]ny person
sentenced to a county jail for a crime . . . may be granted
the privilege of leaving the jail during necessary and
reasonable hours” for various work and medical re-
lated purposes. Wis. Stat. § 303.08(1). Pursuant to the same
statute, “[t]he sheriff may refuse to permit the prisoner to
exercise the prisoner’s privilege to leave the jail as pro-
vided in sub. (1) for not to exceed 5 days for any breach of
discipline or other violation of jail regulations.” Wis. Stat.
§ 303.08(10).
Domka has established that although it was Portage
County’s practice to seek a court order revoking an indi-
vidual’s Huber privileges for 60 days when it terminated
his or her HDP participation, no such request was made
12
Domka also argues that the district court’s decision to dismiss
the action based on a waiver makes it “understandable” that
the parties would put the waiver issue on “center stage now.”
That may well be the case, but it does not mean that this Court
can, or should, consider an argument he did not raise below.
16 No. 07-2984
in his case. The County’s response is that as Domka had
only 40 days remaining to serve, the 60 day court revoca-
tion was unnecessary. We need not assess the merits of this
particular dispute. Portage County’s departure in this case
from its usual course of action may well provide Domka
with an argument that the County failed to comply with
the statute. However, this is not the proper venue in
which, nor is a constitutional claim the proper vehicle by
which, to make that claim. “Federal judges do not enforce
state-created procedures in the name of the Constitution,”
Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994)
(citation omitted), and a failure to comply with state
procedural rules does not violate the federal constitution,
see Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002)
and cases cited therein.
III.
For the foregoing reasons, the district court’s judgment
is A FFIRMED.
USCA-02-C-0072—4-24-08