2009AP2578-W & 2010AP636-W Naseer v. Miller

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Criminal Procedure
John Doe petitions

Where a John Doe petition alleges facts sufficient to establish a criminal offense, the John Doe judge must refer it to the district attorney.

“Applying this standard to the Columbia County John Doe complaint, we agree with Judge Miller’s conclusion that Naseer failed to allege facts sufficient to establish reason to believe that a crime had been committed. Contrary to Naseer’s assertions, serving a cold meal or a small portion at a single meal does not deprive an inmate of the ‘basic need for food,’ in violation of Wis. Stat. § 940.285; it does not constitute neglect or ill-treatment of a person confined in a penal institution in violation of Wis. Stat. § 940.29; it does not constitute misconduct in public office in violation of Wis. Stat. § 946.12; and it does not constitute harassment in violation of Wis. Stat. § 947.013. While prisoners have a right to sufficient food to provide adequate nutrition, there is no requirement that the food be tasty or even appetizing. See Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th Cir. 1994). Naseer’s complaint provides no information that would establish that he was in any way malnourished from the single, objectionable meal, or that there was any ongoing pattern of depriving him of nutritionally adequate meals. Because Judge Miller was not obligated to refer Naseer’s complaint to the district attorney in the first instance, he was certainly not obligated to conduct further proceedings. We therefore deny the petition for supervisory writ of mandamus as to Judge Miller.”
“Applying the objective reason to believe standard to the Grant County case, we conclude that the complaint should have been referred to the district attorney. Critical to our analysis is the requirement that the initial evaluation be limited to the four corners of the complaint. Judge Day erred by considering Naseer’s history of filing unsubstantiated John Doe complaints, information that is extrinsic to the complaint. A litigant’s history of abusing the legal process may certainly be considered at a subsequent stage of the proceeding, along with any other materials forwarded to the court by the district attorney. It cannot, however, be used to determine whether the facts alleged in a particular complaint establish reasonable cause to believe that a crime was committed.”

Writ denied; writ granted.

Recommended for publication in the official reports.

2009AP2578-W & 2010AP636-W Naseer v. Miller

“Mandamus original proceedings, Sherman, J.

Attorneys: For Appellant: Naseer, Hakim, pro se; For Respondent: Potter, Kevin C., Madison; Rice, David C., Madison; Weber, Gregory M., Madison; Cross, Troy Dean, Portgage

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