Benjamin Stibbe v. TONY EVERS and KEVIN CARR

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2022*
Decided November 9, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1455
BENJAMIN STIBBE,
Plaintiff-Appellant,
v.
TONY EVERS and KEVIN CARR,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-CV-1075-JPS
J. P. Stadtmueller,
Judge.
O R D E R
Benjamin Stibbe, a Wisconsin prisoner, filed suit under 42 U.S.C. § 1983, asserting
that his classification as a “violent offender” based on a conviction for reckless homicide
violates his constitutional rights. The district court rejected his theory that the state
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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statute and regulation classifying him this way are unconstitutionally vague and
dismissed the suit at screening. We agree with the court and therefore affirm.
Wisconsin categorizes its prisoners based on the offense of conviction. Stibbe was
convicted of first-degree reckless homicide by delivery of a controlled substance, WIS .
STAT . § 940.02, which is always a “violent offense” under WIS . STAT . § 301.048(2)(bm).
Because of this classification, Stibbe is ineligible for the intensive sanctions program, a
form of custody that is “more restrictive than ordinary probation” but less so than
imprisonment. WIS . STAT . § 301.048(1)(a). Further, Stibbe is ineligible to apply for prison
leave, WIS . A DMIN. C ODE DOC § 326.04(3), because the Wisconsin Department of
Corrections excludes from that program any person convicted of a “violent” offense “in
which there is actual or threatened bodily harm,” id. § 326.03(11). Stibbe was given this
classification because his offense resulted in the death of another person.
Stibbe sued the Governor of Wisconsin and the Secretary of the Wisconsin
Department of Corrections, attacking the classification statute and DOC regulation as
unconstitutionally vague, in violation of his right of due process. He asserted that
reckless homicide should not be defined as a violent crime because drug dealing is
“consensual” and that his crime lacked two key elements of a violent crime: the intent
to cause harm and the use of physical force. His classification, he continued, was
irrational and based on “an incomplete and vague standard” because, rather than
defining “in words … what constitutes a violent crime,” the statute automatically
deems specific offenses “violent.” Stibbe alleged that this designation placed “social
stigma” on him beyond that inherent in his conviction, could deprive him of future
employment and educational opportunities, and barred his access to prison programs
such as “custody reduction” and “the earned release program.”
The district court screened Stibbe’s complaint under 28 U.S.C. § 1915A and
dismissed it for failure to state a claim. First, the court explained that intent was not
relevant to the categorization of “violent offense” under the statute and regulation: all
that matters is the offense of conviction. And if Stibbe meant to challenge the mens rea
element of the reckless-homicide statute, the court noted, any challenge was barred by
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Next, the court ruled that the provisions
classifying Stibbe as a violent offender were not unconstitutionally vague: they
unambiguously state that a conviction for reckless homicide or for a crime resulting in
bodily harm will be classified as “violent.” After concluding that it would be futile to
amend the complaint, the court entered final judgment.

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No. 22-1455 Page 3
On appeal, Stibbe primarily resists the notion that any part of his case implicates
Heck; he argues that the district court assumed he was challenging his conviction when
he was, in fact, asserting that “Wisconsin has classified [him], erroneously, as a violent
offender.” But the court addressed Stibbe’s challenge to his offender classification; its
limited discussion of Heck was directed at the allegation that his crime did not involve
violent intent. That issue, the court rightly concluded, could not be part of this suit.
As for whether Stibbe stated any claim for relief, we review the dismissal
de novo, Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020), and we agree with the
district court that he did not. First, to the extent that Stibbe’s argument about his
“erroneous” classification suggests that Wisconsin erred in applying its own statute and
code, his claim belongs in state court. See Thiele v. Bd. of Trustees of Ill. State Univ.,
35 F.4th 1064, 1066–67 (7th Cir. 2022). A state’s failure to follow, or erroneous
application of, its own laws does not implicate the federal right of due process and is
not actionable under § 1983. Davis v. Scherer, 468 U.S. 183, 194–96 (1984); Wells v. Caudill,
967 F.3d 598, 602 (7th Cir. 2020).
Nor did Stibbe state a plausible claim that classifying his crime as a violent
offense is unconstitutional because the state statute and regulation are void for
vagueness. A law is unconstitutionally vague if “it fails to give ordinary people fair
notice of the conduct it punishes, or [is] so standardless that it invites arbitrary
enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). We will assume that the
Wisconsin violent-offense classifications somehow affect a protected liberty interest so
that the Due Process Clause would apply. See id.; Sandin v. Conner, 515 U.S. 472, 484
(1995) (discussing the liberty interests of prisoners). But we are not persuaded by
Stibbe’s contention that the provisions are void because they diverge from the “federal
ruling or definition of a violent crime.” We examine only whether the statute and
regulation “clearly define[]” the categories they create and therefore provide notice.
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Here, neither provision is subject to
arbitrary or ad-hoc application. The statute expressly lists reckless homicide as a violent
offense. WIS . STAT . § 301.048(2)(bm). Nothing could be less vague. And the regulation
applies to offenses “in which there is” bodily harm, WIS . A DMIN. C ODE DOC
§ 326.03(11); Stibbe’s crime has as an element the death of the victim. Stibbe’s argument
about his intent is not consistent with the regulation’s focus on the result of the offense,
which is what makes the regulation unambiguous.
Finally, Stibbe contends that the district court “should have requested [that he]
make the points more clearly” instead of dismissing his case. Generally, district courts

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should allow at least one opportunity to amend a complaint, but not when amendment
is clearly futile. Runnion ex rel. Runnion v. Girl Scouts, 786 F.3d 510, 519–20 (7th Cir.
2015). Here, the district court explained that amendment could not correct the defects of
the complaint, and we agree that amending the factual allegations could not affect
whether the Wisconsin provisions are impermissibly vague.
We have considered Stibbe’s other arguments, and none has merit.
AFFIRMED

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