Antonio Mays v. Tracy Johnson ( 2021 )

NONPRECEDENTIAL DISPOSITION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 June 18, 2021 *
Decided June 25, 2021
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2750
ANTONIO MAYS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v. No. 18-CV-1769
TRACY JOHNSON, William E. Duffin,
Defendant-Appellee. Magistrate Judge.
ORDER
After his probation and parole agent sought to revoke his extended supervision
and have him taken into custody, Antonio Mays sued her under 42 U.S.C. § 1983 for
lacking any legitimate reason to take such steps. The district court concluded that the
officer was entitled to absolute immunity and entered summary judgment in her favor.
We affirm.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 20-2750 Page 2
In March 2018, while on community supervision (following a prison term for
armed robbery), Mays was implicated in a double homicide. His probation and parole
agent, Tracy Johnson, initiated proceedings to revoke his supervision and then had him
detained on a “revocation hold.” She alleged four violations of his release conditions—
two related to the homicides, one for possessing a gun, and one for lying to police. After
a hearing, an administrative law judge with the State of Wisconsin Division of Hearings
and Appeals declined to revoke Mays’s supervision. The ALJ found the evidence
sufficient to prove only that Mays had lied to the police—a violation that did not on its
own justify revocation. That decision was upheld on appeal.
Although Mays’s revocation hold was lifted in late July, he remained in custody
another two months while criminal charges related to the double homicide were
pending. When he posted bail and was released, a different probation and parole agent
was temporarily assigned to supervise him in the community.
Meanwhile, Johnson had received lab results showing that Mays’s DNA was
found on two firearms linked to the homicides. Based on this new evidence, Johnson
moved successfully to reopen revocation proceedings. On October 8, Johnson issued a
warrant (an “apprehension request” under Wisconsin’s terminology) for Mays’s arrest,
and he was taken back into custody. Eleven days later, Mays was convicted by a jury in
the double homicide trial. Johnson withdrew the revocation petition and filed a new
one based on the convictions. After a second hearing, Mays’s supervision was
eventually revoked, and he received a 10-year sentence with credit for the 11 days
served after returning to custody.
Mays brought this suit against Johnson, asserting that she subjected him to
additional incarceration without justification—in violation of the Eighth Amendment—
when she had him arrested based on the charges he had “beaten” in the first revocation
hearing. Because Johnson did not allege any new violations since his first revocation
hearing, Mays argued that she lacked a legitimate basis to revoke his supervision and
have him arrested. In Mays’s view, Johnson’s persistence in pursuing revocation, even
after a new probation and parole agent had taken over his day-to-day supervision,
amounted to harassment and exposed the illegitimacy of her actions. He sought money
damages for the 11 days spent in custody before his conviction.
The district court entered summary judgment for Johnson on immunity grounds.
The court concluded that Johnson, in recommending the revocation of Mays’s
No. 20-2750 Page 3
supervision and his incarceration, was performing a “quasi-judicial function” and
therefore protected by absolute immunity.
On appeal, Mays maintains that Johnson effectively lost any immunity after
another agent was assigned to oversee his day-to-day supervision. He also continues to
assert that she caused him to be arrested for violations that she knew he previously had
“won on.”
We apply a “functional approach” to decide whether the actions of a government
official warrant absolute immunity, looking to “the nature of the function performed,
not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993) (internal citation omitted); Jones v. Cummings, No. 20-1898, 2021 WL 2134298, at *4
(7th Cir. May 26, 2021). Absolute immunity shields, for example, a prosecutor’s conduct
as an advocate that is “intimately associated with the judicial phase of the criminal
process,” such as initiating a prosecution and presenting the state’s case. Imbler v.
Pachtman, 424 U.S. 409, 430–31 (1976). But absolute immunity does not extend to a
parole officer who investigates a charge and then prepares a violation report for a
revocation; such conduct lacks a “prosecutorial or judicial analog.” Wilson v. Kelkhoff,
86 F.3d 1438, 1446 (7th Cir. 1996); see also Dawson v. Newman, 419 F.3d 656, 662 (7th Cir.
2005) (declining to extend absolute immunity to parole officers for performing their
day-to-day duties in the supervision of a parolee).
With regard to Johnson’s actions to initiate revocation proceedings, she is
entitled to absolute immunity. Her acts are closely associated with the quasi-judicial
phase of the criminal process. See Tobey v. Chibucos, 890 F.3d 634, 650 (7th Cir. 2018)
(probation officer engaged in quasi-judicial function by filing memoranda requesting
that state’s attorney begin proceedings to revoke probation). Under the applicable
Wisconsin regulations, see WIS. ADMIN. CODE DOC § 331.03(2), parole agents have the
discretion to decide how they will proceed after investigating an alleged parole
violation; they might recommend revocation, resolve the matter in an informal
counseling session, or come up with another solution altogether. The record reflects that
Johnson exercised that discretion when she sought revocation of Mays’s supervision
based on the lab’s DNA results. “[F]iling requests for revocation are not violations of
section 1983; they are [part of] the job description for the often thankless job of
probation officer.” Tobey, 890 F.3d at 650.
Johnson is likewise entitled to absolute immunity for her decision to issue an
apprehension request to have Mays taken into custody. Parole officers are absolutely
No. 20-2750 Page 4
immune, we have reiterated, for the quasi-judicial activity of signing an arrest warrant,
provided they were not involved in preparing the evidence that formed the basis of the
warrant. See id. at 650; Dawson, 419 F.3d at 662; Copus v. City of Edgerton, 151 F.3d 646,
649 (7th Cir. 1998); Walrath v. United States, 35 F.3d 277, 282 (7th Cir. 1994). As we have
explained, a parole officer’s issuing of an arrest warrant for a parole violation has
judicial characteristics: “[I]t involves the exercise of discretion in applying the law to the
facts of a particular case, poses a heightened risk of vexatious litigation, and is ‘open to
correction through ordinary mechanisms of review.’” Walrath, 35 F.3d at 282. Contra
Washington v. Rivera, 939 F.3d 1239, 1243–44 (11th Cir. 2019) (collecting cases and
holding that parole officers’ decisions to issue warrants were entitled to only qualified
immunity). Johnson’s act of signing the apprehension request was an exercise of
discretion based on the DNA report she obtained from the lab, and as such is shielded
by absolute immunity.
Lastly, to the extent Mays believes that Johnson initiated revocation proceedings
and arranged his arrest to harass him, her motives are irrelevant if—as we have
concluded—she is entitled to absolute immunity. See Tobey, 890 F.3d at 649. But,
regardless we note that even if Johnson were not entitled to immunity, Mays’s claims
would fail on the merits. He has no basis for a § 1983 claim for the 11 days he spent in
custody before his conviction because that time was credited to a lawful sentence.
See Ewell v. Toney, 853 F.3d 911, 917 (7th Cir. 2017).
AFFIRMED