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Hoeft v. Joanis

United States District Court, W.D. Wisconsin
May 21, 2009
09-cv-120-bbc (W.D. Wis. May. 21, 2009)

Opinion

09-cv-120-bbc.

May 21, 2009


ORDER


On April 30, 2009, I denied plaintiff Richard Hoeft's request for leave to proceed in forma pauperis on his claims against defendants Bruce Joanis, Nathaniel Delegan, Tom Renz and Ashland County because his claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Dkt. #3. Plaintiff has filed a motion to reconsider under Fed.R.Civ.P. 59, requesting that the court reconsider its decision and alter the judgment dismissing this case. Dkt. #5. Plaintiff's motion will be denied because it was untimely.

Motions under Rule 59 must be filed no later than ten days after the entry of judgment. Fed.R.Civ.P. 59(e). A litigant's failure to meet the time limits of Rule 59 forecloses him from raising in the district court his assertions that errors of law or fact have been made. United States v. Griffin, 782 F.2d 1393, 1396 (7th Cir. 1986).

In this case, judgment was entered on April 30, 2009. The 10-day deadline following the entry of the judgment was May 14, 2009. (Holidays and weekends are not counted. Fed.R.Civ.P. 6(a)(2).) Plaintiff's motion was received and date stamped on May 15, 2009. Therefore, plaintiff's motion must be denied as untimely.

Further, even if plaintiff's motion had been timely, it would have been denied. Plaintiff contends that his claims cannot be barred under Heck, 512 U.S. 477, because he is no longer incarcerated. Plaintiff is incorrect. Release from incarceration is not what removes the Heck bar; it is release from custody. It is clear that the Heck bar does not apply after a prisoner is released from custody. Simpson v. Nickel, 450 F.3d 303, 306-07 (7th Cir. 2006) ("Only after the custody is over may the prisoner use § 1983 to seek damages against persons who may have been responsible [for the constitutional deprivation]." (Emphasis added)). Although a parolee is not incarcerated, he is considered to be "in custody" because his liberty remains restrained. Jones v. Cunningham, 371 U.S. 236 (1963). In Wisconsin, a person remains in custody whether the person's release is described as parole, probation or extended supervision. State v. Brown, 2006 WI 31, ¶ 6,298 Wis. 2d 37, 44, 725 N.W.2d 262, 265; see also State ex rel. Rupinski v. Smith, 2007 WI App 4, ¶¶ 20-21, 297 Wis. 2d 749, 761, 728 N.W.2d 1, 7 ("[A] person on extended supervision, as a parolee or probationer, is within the custody of the [Department of Corrections], and similarly subject to all of the conditions and rules of supervision") (emphasis added).

According to the habeas corpus petition that plaintiff filed with this court, Hoeft v. Clark, 08-cv-537-bbc, although plaintiff is no longer serving the incarceration portion of his sentence on the burglary charges to which he pleaded no contest on December 21, 2004, he is serving the extended supervision portion of that sentence. Therefore, plaintiff has not been released from custody. Because plaintiff remains in the custody of the state, he is barred from bringing suit under § 1983 on his claims that necessarily challenge the validity of his underlying conviction.

ORDER

IT IS ORDERED that plaintiff Richard Hoeft's motion to reconsider, dkt. #5, is DENIED.


Summaries of

Hoeft v. Joanis

United States District Court, W.D. Wisconsin
May 21, 2009
09-cv-120-bbc (W.D. Wis. May. 21, 2009)
Case details for

Hoeft v. Joanis

Case Details

Full title:RICHARD HOEFT, Plaintiff, v. BRUCE JOANIS, NATHANIEL DELEGAN, TOM RENZ and…

Court:United States District Court, W.D. Wisconsin

Date published: May 21, 2009

Citations

09-cv-120-bbc (W.D. Wis. May. 21, 2009)