Donald R. Wield v. Rick Raemisch

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2008 *
Decided October 9, 2008
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1439
DONALD R. WIELD,
Plaintiff‐Appellant,
v.
RICK RAEMISCH,
Defendant‐Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 07‐cv‐570‐jcs
John C. Shabaz,
Judge.
O R D E R
The Wisconsin Department of Corrections requires, by regulation, that any money an
inmate earns during incarceration or receives from outside sources be deposited into a
“general” or “trust” account administered by the DOC. See W IS. A DMIN. CODE DOC
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1439 Page 2
§§ 309.02(8), .45‐46, .48‐49. Fifteen percent “of all income earned by or received for the
benefit of the inmate,” up to $500, is then deducted from the general account and deposited
into a “release account” in the inmate’s name. Id. §§ 309.02(18), .466(1). Release account
funds, however, “may not be disbursed for any reason until the inmate is released to field
supervision, except to purchase adequate clothing for release and for out‐of‐state release
transportation.” Id. § 309.466(2). Donald Wield, a Wisconsin inmate serving a life sentence
without the possibility of parole or extended supervision, see State v. Wield, 668 N.W.2d 823
(Wis. App. 2003), claims that the diversion of income from his general account to his release
account violates his constitutional rights. The district court permitted Wield to proceed
against the secretary of the DOC under 42 U.S.C. § 1983, but then dismissed the action
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Wield appeals.
Wield argues that the DOC regulations, which predate the Wisconsin legislature’s
authorization of non‐parolable life sentences, permanently deprive him of his property by
diverting fifteen percent of his income into a release account that he will never be able to
access because of his life sentence. See W IS. A DMIN. CODE DOC § 309.466(2). We review a
dismissal under Rule 12(b)(6) de novo. Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534
(7th Cir. 2008). The district court, in dismissing the complaint, analyzed the lawsuit on the
assumption that Wield is claiming a denial of procedural due process under the Fourteenth
Amendment. Wield, though, does not complain about inadequate procedural protections.
Rather, he claims, in what he characterizes as a matter of substantive due process, that he is
being permanently deprived of the funds in his release account because his non‐parolable
life sentence will preclude him from ever accessing those funds. In our view, however,
Wield’s claim is properly analyzed under the Takings Clause of the Fifth Amendment
because that clause “provides an explicit textual source of constitutional protection.”
Graham v. Connor, 490 U.S. 386, 395 (1989). It is thus unnecessary to discuss substantive due
process. See, e.g., Koutnik v. Brown, 456 F.3d 777, 781 (7th Cir. 2006); Conyers v. Abitz, 416
F.3d 580, 586 (7th Cir. 2005); Patel v. Penman, 103 F.3d 868, 874‐75 (9th Cir. 1996).
The Takings Clause of the Fifth Amendment, made applicable to the states through
the Fourteenth Amendment, see Chicago, Burlington, & Quincy R.R. Co. v. City of Chicago, 166
U.S. 226 (1897), provides that private property shall not “be taken for public use, without
just compensation.” U.S. CONST . amend. V. To establish a claim under the Takings Clause,
a plaintiff must identify a property interest protected by the Fifth Amendment, see
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000‐01 (1984), and prove that the state has
effected a taking of that property. Ordinarily a plaintiff cannot claim that the Takings
Clause has been violated until after he has sought compensation from the state, see
Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson County, 473 U.S. 172,
194 (1985); Peters v. Vill. of Clifton, 498 F.3d 727, 731‐32 (7th Cir. 2007), though immediate
relief may be available in federal court if the plaintiff is making a facial challenge to a state

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No. 08‐1439 Page 3
regulation or legislative action authorizing a taking, San Remo Hotel, L.P. v. City & County of
San Francisco, 545 U.S. 323, 345‐46 (2005); Williamson County, 473 U.S. at 194 n.13; Peters, 498
F.3d at 732.
We have previously held that inmates have a property interest in the funds in their
prison accounts, see Campbell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986), and so the question
here is whether the DOC regulations constitute a taking of Wield’s property. But since
Wield challenges the regulations only as applied to his unique circumstance (a life sentence
without the possibility of parole or extended supervision), his takings claim is not yet ripe.
Wield must seek compensation through state remedies before he can seek relief in federal
court, e.g., Rockstead v. City of Crystal Lake, 486 F.3d 963, 965‐66 (7th Cir. 2007); Peters, 498
F.3d at 731‐34; Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 699 (7th Cir. 2005), and for
that reason the district court should have dismissed the complaint without prejudice.
Accordingly, the district court’s dismissal is MODIFIED to be without prejudice,
and, as modified, the judgment is AFFIRMED.

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