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Gerald L. Polzin v. Michael W. Gage

February 18, 2011


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:10-cv-00038-WCG-William C. Griesbach, Judge.

Per curiam.


Before COFFEY, FLAUM and RIPPLE, Circuit Judges.

Gerald Polzin brought this action against a state judge and other public officials under 42 U.S.C.

"The appellees were not served with process in the district court and are not participating in this appeal. After examining the appellant's brief and the record, we have concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the appellant's brief and the record. See Fed. R. App. P. 34(a)(2)(C).

§ 1983, alleging that they had violated his constitutional rights during his sentencing proceedings in state court. The district court dismissed Mr. Polzin's complaint at screening and denied his subsequent postjudgment motion to reconsider or for leave to amend his complaint. Mr. Polzin appeals, and we affirm the judgment in part and vacate and remand in part.


In August 2005, Mr. Polzin pleaded guilty to six counts of sexually abusing two teenage boys. During the presentence investigation, Mr. Polzin claimed that as a child, his uncle, an Appleton, Wisconsin police officer, had sexually abused him. The presentence investigator informed the special prosecutor, and the special prosecutor requested an investigation by the Wisconsin Department of Justice, Division of Criminal Investigation ("DCI"). The Appleton police decided not to conduct a duplicate investigation of the matter.

At the sentencing hearing, the special prosecutor expressed doubts that Mr. Polzin actually was abused and opposed any mitigation based on evidence of past sexual abuse. The special prosecutor believed that Mr. Polzin was trying to recast himself as a victim in order to excuse his criminal behavior. The state trial judge doubted the thoroughness of the special pros-ecutor's investigation. The state trial judge ultimately considered the past sexual abuse "more probable than not" and included it as a mitigating factor. Sent. Tr. at 123. Considering both aggravating and mitigating factors, the state trial judge sentenced Mr. Polzin to a thirty-year term of imprisonment.

Mr. Polzin appealed his conviction and filed a separate civil suit in state court. In the criminal appeal, the Court of Appeals of Wisconsin affirmed Mr. Polzin's conviction. The Supreme Court of Wisconsin denied Mr. Polzin's petition for review. State v. Polzin, 746 N.W.2d 810 (Wis. 2008) (table decision). Mr. Polzin then filed a post-conviction motion for relief, which the state court denied. In November 2010, the Court of Appeals of Wisconsin affirmed the district court's denial of post-conviction relief. See State v. Polzin, No. 2010AP167, 2010 WL 4643647 (Wis. Ct. App. Nov. 18, 2010) (per curiam).

The civil suit was an action in state court against the city of Appleton and members of its police force. Mr. Polzin alleged constitutional violations of his rights because the Appleton police did not conduct a duplicate investigation into his claims, the defendants exhibited disbelief that he previously was abused, and the defendants did not attempt to correct the special prosecutor's assessment of the investigation during the sentencing. The state court granted the defendants' joint motion for summary judgment, holding that the defendants were protected by qualified immunity and that Mr. Polzin failed to show any violation of constitutional rights or malice. The Court of Appeals of Wisconsin affirmed. See Polzin v. City of Appleton, No. 2007AP1528 (Wis. Ct. App. Feb. 26, 2008).

In January 2010, prior to the resolution of his motion for post-conviction relief, Mr. Polzin brought this action in the United States District Court for the Western District of Wisconsin under 42 U.S.C. § 1983 against the special prosecutor, the state trial judge, the state trial court reporter and DCI investigators. Mr. Polzin alleged constitutional violations as a result of the special prosecutor and DCI investigators falsifying evidence during the investigation, the special prosecutor's presentation of false evidence during sentencing, and the state trial judge and court reporter's fabrication of the sentencing transcript.

The same day he filed his case in federal district court, Mr. Polzin asked the district court to stay the proceedings. He observed that because he had a post-conviction motion pending in state court, the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994), would bar his claims until that conviction was overturned. The Supreme Court held in Heck that arguments attacking the validity of a conviction cannot be advanced under § 1983 unless the conviction or sentence previously has been invalidated. Id. at 486-87. Mr. Polzin explained that he nonetheless had filed an action because the statute of limitations would run on some of his claims if he waited to file until after the state resolved his claim for post-conviction relief. Relying on Wallace v. Kato, 549 U.S. 384 (2007), he requested the district court stay the proceedings instead of dismissing the suit under Heck. In Wallace, the Supreme Court ad-dressed the issue of whether a § 1983 claim for false arrest was filed timely. See id. at 386. The Court held that the rule in Heck does not affect the date when a claim for false arrest under § 1983 accrues or when its statute of limitations is tolled. Id. at 393-95. Yet, in those cases where Heck would bar a civil action but the statute of limitations might run before the criminal case was complete, the Court commented that a district court had the discretion to stay the civil action. Id. at 393-94.

The district court denied Mr. Polzin's request to stay the proceedings. It characterized all of Mr. Polzin's claims to concern "the behavior of the prosecution in his sentencing and that of the court after sentencing." Polzin v. Gage, No. 10-C-38, 2010 WL 414906, at *4 (E.D. Wis. Jan. 28, 2010). Wallace dealt with the accrual date for a claim of false arrest. By contrast, in the district court's view, Mr. Polzin essentially alleged a claim of malicious prosecution, and, the district court observed, a claim for malicious prosecution does not accrue unless and until the allegedly malicious prosecution ...

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