Appeal from the United States District Court for the Western District of Wisconsin. No. 07-C-0063-S-John C. Shabaz, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge
Before MANION, ROVNER and WILLIAMS, Circuit Judges.
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 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 constitutionally 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.
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 sentenced to 105 days in jail with Huber work-release privileges, 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*fn1 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 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.
The statute further provides:
If a prisoner described under sub. (2) and the department 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 description of the detention monitoring procedures and requirements and of any applicable liability issues. . . .
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 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 ...