Carson Combs v. Dennis A. Pedersen ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2009*
Decided November 10, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-2215
Appeal from the United
C ARSON DARNELL C OMBS, States District Court for the
Plaintiff-Appellant, Western District of Wisconsin.
v. No. 08-cv-482-slc
DENNIS PEDERSEN, Barbara B. Crabb, Chief Judge.
Defendant-Appellee.
Order
Carson Combs contends that Dennis Pederson, the Sheriff of Monroe County, Wis-
consin, should be ordered to pay damages under 42 U.S.C. §1983 for keeping him in
prison longer than Wisconsin law allowed.
On February 19, 2007, a Wisconsin court sentenced Combs to 60 days’ imprison-
ment for failing to comply with the conditions of his probation on an earlier state con-
viction. He was remanded to the Sheriff’s custody immediately. Toward the end of the
60 days, Combs received a letter stating that the Wisconsin Department of Corrections
had terminated his probation on February 21, 2007. Combs then took the position that,
as a matter of state law, a sentence for violating the conditions of probation cannot ex-
tend past the end of the probation itself. He has filed two suits based on that belief—
one in state court against his probation officer (and the officer’s supervisor), and this
suit in federal court against the Sheriff. The state court dismissed the suit against the
probation officer, concluding that the Department of Corrections lacked authority to
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09-2215 Page 2
terminate his probation while Combs was in custody for a violation. That decision was
summarily affirmed on appeal; Combs’s request for discretionary review is pending in
the Supreme Court of Wisconsin. The federal suit fared no better; the district judge
granted summary judgment to the Sheriff.
Combs’s appeal encounters at least two obstacles. One is issue preclusion (collateral
estoppel). The state court has determined that Combs’s probation was not terminated
before the end of his 60-day sentence, and this ruling washes away the foundation for
his claim under §1983. The Sheriff was not a party to the state-court proceeding but is
entitled, as a matter of Wisconsin law, see 28 U.S.C. §1738, to the benefit of its ruling.
(Wisconsin employs the doctrine of defensive non-mutual issue preclusion. See Michelle
T. ex rel. Sumpter v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).)
If Combs’s pending request for review by the Supreme Court of Wisconsin makes
the state judgment non-final for the purpose of a preclusion defense, the fact remains
that the Sheriff did no more than implement the judgment of the state court. Someone
who believes that a judicial order is invalid must petition the court for relief. A sheriff,
warden, or similar custodian who carries out a judicial order that has not been stayed or
reversed is not liable under §1983. See Hernandez v. Sheahan, 455 F.3d 772 (7th Cir. 2006).
AFFIRMED