In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2984

JAMES DOMKA,

Plaintiff-Appellant,

v.

PORTAGE COUNTY, WISCONSIN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-C-0063-S—John C. Shabaz, Judge.

____________

ARGUED FEBRUARY 14, 2008—DECIDED APRIL 24, 2008

____________

Before MANION, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. 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 breathtest machine connected to the Sheriff’s Department

through Domka’s phone line. Domka’s Huber privileges
2 No. 07-2984

Section 303.08 of the Wisconsin Statutes, also known as the 1

“Huber Law,” governs work release privileges for Wisconsin

county jail inmates.

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.

I.

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 both 1

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
No. 07-2984 3

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.

Wis. Stat. § 302.425(2).

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. . . .

Wis. Stat. § 302.435(3).

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
4 No. 07-2984

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 returned (sic) to

the Portage County Jail. (Paragraph 8.)

I understand a violation of any of these conditions of

agreement will cause my removal from the program

without notice or avenue of appeal . . . . (Paragraph 12.)

We will not tolerate any excuses, such as, but not

limited to: failing the voice test, missing a call, failing

to get off the phone when the machine is trying to call

you etc. All the above are grounds for removal off the

Program. In addition, it is your responsibility to inform

your household of the conditions that need to be

followed. (Paragraph 16.)

As a required part of the HDP, at random times throughout each day Domka would have to speak and blow into

the Sobrietor. At the meeting on June 27, Office Borski also

reviewed with Domka the “BI Sobrietor Client Information” form which provided, inter alia:

Any alcohol reading on the sobrietor will result in

immediate removal from HDP and you will lose your

HDP & Huber Privileges. Be aware that ingesting any

food or drink with alcohol can result in a positive

breath alcohol test. Example, mouthwash and toothpaste; chewing tobacco; cough medicine; vanilla

extract; & some sauces and candies.
No. 07-2984 5

In Officer Borski’s presence, Domka signed this form as

well, below the statement which read “I understand any

violation(s) of these rules can result in termination from

the HDP Program.”

Between June 27 and July 10, 2005, the Sobrietor recorded

several failed tests as the result of user error, none of which

registered a positive alcohol reading. On Sunday, July 10,

2005 at 9:55 am, Domka’s Sobrietor test resulted in a

positive alcohol reading of .021. As with all individuals on

a Sobrietor program who test positive for alcohol, Domka

was automatically retested by the Sobrietor five minutes

later. Domka’s 10:00 am Sobrietor test again registered a

positive alcohol reading of .021.

When Office Borski returned to work early Monday

morning, July 11, and saw Domka’s Sobrietor had recorded two positive alcohol tests the previous day, she

called Domka and requested that he report to jail within

the hour. As a result of his violation of the PCSDHDP,

Domka’s participation in the HDP was then revoked and

his participation in the Huber program was suspended.

Domka served the balance of his sentence, 41 days, in

the Portage County jail without Huber privileges.

Domka was released on August 21, 2005 and subsequently brought a 42 U.S.C. § 1983 case against Portage

County, alleging that the County unconstitutionally

deprived him of liberty interests without due process.

Judge Shabaz granted the County’s motion for summary

judgment, holding that even if Domka did have liberty

interests in remaining in the HDP and Huber privileges

which would trigger constitutionally required due process,

he had waived those rights in the HDP agreements.
6 No. 07-2984

II.

Reviewing the lower court’s decision de novo and viewing the facts and all reasonable inferences in the light

most favorable to the party opposing judgment, e.g., CSX

Transp., Inc. v. Appalachian Railcar Servs., Inc., 509 F.3d 384,

386 (7th Cir. 2007), we agree that Domka’s case presents no

genuine issue of material fact and therefore the summary

judgment granted to Portage County should be affirmed,

see Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

A.

Domka’s first hurdle is identifying a protected interest.

“An essential component of a procedural due process claim

is a protected property or liberty interest.” Minch v. City of

Chicago, 486 F.3d 294, 302 (7th Cir. 1997) (citing Town

of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005),

Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972)). “Liberty

interests can arise from two sources: the Federal Constitution or state law.” Thielman v. Leean, 282 F.3d 478, 480 (7th

Cir. 2002) (citing Shango v. Jurich, 681 F.2d 1091, 1097 (7th

Cir. 1982). Conceding that no Wisconsin statute serves as

the source of his alleged liberty interests, Domka puts

forth two other theories to make his case: that the plea

agreement between himself and the prosecutor granted

him protected liberty interests in home detention and

Huber privileges; and that the due process clause itself

provides the basis for his liberty interest in those programs.

We easily reject the former argument. Domka had a

choice in his plea agreement; he elected to serve a total of

105 days with most of that time in the HDP with Huber

privileges rather than a shorter sentence of 75 days all to
No. 07-2984 7

be served in jail, also with Huber privileges. The plea

agreement, Domka claims, therefore gave him a “legitimate

entitlement” in those programs which entitlement gives

rise to due process requirements which were not met

here. We are unable to follow Domka’s “logic” that his

negotiations with the prosecutor ipso facto created a constitutional liberty interest in the programs into which he

was subsequently placed and the three Supreme Court

cases Domka cites do nothing to bolster his case as none

of them supports his theory. Santobello v. New York, 404

U.S. 257 (1972), actually cuts the other way, as Domka

did receive the sentence he had negotiated; Kentucky Dept.

of Corrections v. Thompson, 490 U.S. 454 (1989), dealt with

the language requirements that must be contained within

a state regulation in order for a state to create a protected liberty interest; and Perry v. Sindermann, 408 U.S.

593 (1972), also not on point, involved the due process

protection of a personal property interest in employment.

Without legitimate support, Domka’s argument is a

nonstarter. Common sense dictates that the district court’s

sound analysis of this issue, that the plea agreement

between Domka and the prosecutor had no bearing on

the post-conviction agreement between Domka and

Portage, should stand. Domka received exactly what he

bargained for—the opportunity to serve a portion of his

time under the HDP with Huber privileges. What later

came to pass between Portage County and Domka involving violations of the HDP agreement has nothing to

do with the plea agreement. Domka must propose another

source for his alleged liberty interests.

And he does. His argument that the due process clause

itself provides the basis for his liberty interests is more

compelling, albeit far from irrefutable. After all, as the
8 No. 07-2984

The Sandin decision so significantly limited inmates’ pro- 2

tected liberty interests that we have observed that in its wake,

the only protected liberty interest remaining for inmates may

be the loss of good time credits. See Wagner v. Hanks, 128 F.3d

1173, 1176 (7th Cir. 1997).

Supreme Court has recognized, “[although] prisoners do

not shed all constitutional rights at the prison

gate, . . . lawful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our

penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995)

(citations and internal quotation marks omitted). And as 2

the Court more recently emphasized, “[a] broad range of

choices that might infringe constitutional rights in a free

society fall within the expected conditions of confinement

of those who have suffered a lawful conviction.” McKune

v. Lile, 536 U.S. 24, 37 (2002).

Our analysis, then, must begin with the “initial question

[of] whether being removed from a home-detention

program into jail is a sufficiently large incremental reduction in freedom to be classified as a deprivation of liberty

under the Sandin doctrine, since, if not, [Domka] has no

right to due process of law.” Paige v. Hudson, 341 F.3d 642,

643 (7th Cir. 2003) (citations omitted). The law in a case

such as this, where the convict is not technically “imprisoned,” is still evolving. What is established is that an

inmate on parole has a liberty interest in retaining that

status, Morrissey v. Brewer, 408 U.S. 471 (1972), and that

this right has been extended to pre-parolees, Young v.

Harper, 520 U.S. 143 (1997). Our recent opinion in Paige

v. Hudson broadened this principle slightly further, finding that removing a probationer from home detention
No. 07-2984 9

Although there is no question that the HDP afforded Domka 3

more freedom than he would have had in prison, we agree that

between the constant electronic monitoring, the fact that he

was not allowed to leave his home except to go to work or for

other pre-approved reasons, the frequent Sobrietor tests, etc.,

Domka can appropriately be characterized as a prisoner

“serving a portion of [his] confinement in a different location

[from prison].” Portage County Br. at 42.

With regard to Domka’s Huber privileges, the language of 4

the statute itself makes clear that they are in fact privileges

which may be withdrawn by the court “at any time by order

entered with or without notice.” Wisc. Stat. § 303.08(2).

status fell somewhere on the deprivation spectrum as

greater than that at stake in Sandin and less than that at

issue in Young, but qualified nonetheless as a “sufficient

reduction” in freedom to be deemed a “deprivation of

liberty” requiring due process. Paige, 341 F.3d at 643.

But we are not prepared to say that Paige is necessarily

controlling here; the fact that Domka was not a probationer

but instead a prisoner serving his time outside the jail

renders Paige distinguishable. The County makes a

valid point that revoking probation and returning someone who already served his sentence to incarceration, as

was the situation in Paige, is arguably a greater loss of

freedom than having Domka serve out his remaining time

of confinement in a “different location.” Because we agree 3

with the district court’s ultimate determination that

Domka waived any due process protections that may

have been required, see infra, we save for another day the

narrow question of whether a prisoner—as opposed to a

probationer, parolee or pre-parolee—has a liberty interest

in a home detention program.4
10 No. 07-2984

Domka attempts to equate his situation to one in which a 5

state actor conditions the receipt of a state benefit “such as a

liquor license or an entertainment permit” on a waiver of

constitutional rights. See Domka Br. at 39. This analogy falls

short. Domka is a convicted prisoner, not a businessman

attempting to obtain state licensing.

Domka has reiterated this understanding several times during 6

the course of this case. See, e.g., Domka’s deposition (R. 21);

(continued...)

B.

The County compellingly argues that Domka waived

any due process rights he may have had and Domka

provides no convincing support for a contrary finding. It

is without question that an individual may waive his or

her procedural due process rights. See, e.g., D.H. Overmyer

Co. v. Frick Co., 405 U.S. 174, 185 (1972). A constitutional

waiver is considered to be valid if it is knowing and

voluntary. E.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (a

waiver ordinarily is “an intentional relinquishment or

abandonment of a known right or privilege”). See also

United States v. Hill, 252 F.3d 919, 923 (7th Cir. 2001)

(knowing and intelligent waiver “is demonstrable knowledge of the right being surrendered and a formal decision

to forego that right”).

5

The language in the agreement that Domka signed

which states that he could—and would—be removed from

the HDP and the Huber program if the Sobrietor registered a positive alcohol reading is completely unambiguous. Domka agrees that he understood that if he violated any condition of the HDP, including the Sobrietor

portion of the program, he would be removed from the

program without notice. Domka alleges, however, that 6
No. 07-2984 11

(...continued)

Plaintiff’s Response to Defendant’s Proposed Findings of Fact

and Conclusions of Law (R.33 at 12, para. 37).

There are other statement that the parties agree Officer Borski 7

made to Domka at that meeting, including telling him that

he should rinse his mouth with water before each Sobrietor

test; and that he could go into the yard to feed his animals from

12-1 pm notwithstanding that the PCSDHDP agreement

specified that he must remain inside the house (not in the

yard or on the porch) when he was not at work.

Officer Borski made certain statements during their June

27th meeting which constituted oral modifications to the

agreement. He claims that because he relied on these

statements, and because they muddied an already ambiguous contract, it was impossible for him to be deemed as

having made a “knowing and intelligent” waiver of his

due process rights. Domka’s argument hinges on his

claim that Officer Borski told him that if at any time the

Sobrietor tested positive for alcohol, someone from the

jail would come within two hours to administer another

test. If the second test was negative for alcohol, Domka

would then have a blood test for an ultimate determination

of alcohol consumption. The County disputes that Officer

Borski ever said this.7

Because this is a motion for summary judgment, the

facts must be considered in the light most favorable to

Domka, the non-moving party, and ambiguities must be

resolved in his favor. See, e.g., Payne v. Pauley, 337 F.3d 767,

773 (7th Cir. 2003). In support of his opposition to the

County’s motion, it is entirely appropriate for Domka to

rely here on his own testimony to the extent it is admissible

under the Federal Rules of Evidence. See id. at 771-73.
12 No. 07-2984

For this reason, Domka’s arguments that that he did not 8

actually have any alcohol while on in the HDP, that the

Sobrietor’s positive result was in fact a “false positive” and that

the Sobrietor was unreliable (assuming Domka is even

qualified to address this issue) are immaterial here.

Therefore, for purposes of this appeal we must accept

Domka’s version of the conversation he had with Officer

Borski on June 27 regarding retesting.

But even accepting Domka’s version of the conversation,

we remain disinclined to accept his argument. The clear

statement of the signed, written agreement that “[a]ny

alcohol reading on the Sobrietor will result in an immediate removal from HDP and you will lose your HDP and

Huber Privileges” does not predicate removal from HDP

and of Huber on Domka actually consuming alcohol, but

only on a positive Sobrietor reading. Officer Borski’s

8

comment about retesting renders the agreement no less

unambiguous, and the County’s case is significantly

buttressed by the fact that Domka has admitted over

and over that he understood that if he violated any condition of the HDP, including the Sobrietor portion of the

program, he would be removed from the program without notice. See n.6, supra.

C.

Domka would have this Court find his waiver invalid

because, he claims, the PCSDHSP constitutes an unenforceable “contract of adhesion,” a “take it or leave it”

agreement presented by the County, the party with the

power, without the opportunity for Domka to have negotiated its terms. Domka’s failure to have made this argu-
No. 07-2984 13

This is the so notwithstanding Domka’s current assertion 9

that “[t]he message of Overmyer, Fuentes and their progeny is

that a non-negotiable adhesion contract ... can never be seen

as knowing, intelligent and, most important, voluntary.” Domka

Br. at 46 (emphasis added).

ment in the court below, however, prevents us from now

considering it. “It is a well-settled rule that a party opposing a summary judgment motion must inform the trial

judge of the reasons, legal or factual, why summary

judgment should not be entered. If it does not do so, and

loses the motion, it cannot raise such reasons on appeal.”

Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983)

(citations omitted). See also Economy Folding Box Corp. v.

Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir. 2008)

(“it is axiomatic that an issue not first presented to the

district court may not be raised before the appellate court

as a ground for reversal” (citations and internal quotations

omitted)). Domka attempts to skirt this waiver rule by

claiming that although he may not have used the specific

terminology below, the essence of the argument he put

forth in the district court is consistent with this contract of

adhesion theory. He refers us to the “long section [in his

brief below] arguing that the alleged waiver was not

knowing, intelligent and voluntary ...” (Domka Reply Br.

at 11) in purported support. There are several flaws with

this argument. First and telling, Domka’s district court

brief does not vigorously argue that the waiver was

involuntary but focuses instead on it not being knowing

and intelligent. R.31. Moreover, although our examina- 9

tion of Domka’s brief below does reveal two instances in

which Domka used language about disparate bargaining

power (one of which also makes reference to a “standard
14 No. 07-2984

Domka argued below (1) that black letter law requires 10

ambiguities to be construed against the drafter “particularly

where there is substantial disparity of power between the

parties, and the contract is on a standard form supplied by the

drafter”, citing a Wisconsin state case (R.31 at 21); and (2) that

“[u]nder the circumstances, where Domka was an inmate and

Borski was an officer with authority over him, it was reasonable for Domka to rely upon Borski’s verbal explanation and

assertions” (R.31 at 24, n.5).

Even if we agreed that Domka did put forth below the gen- 11

eral theory that his inability to negotiate the contract rendered

it unfair, we could not now properly consider his contract of

adhesion argument. See Libertyville Datsun Sales, Inc. v. Nissan

Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985) (where a party

raises a specific argument for the first time on appeal, it is

waived even though the “general issue” was before the district court) (collecting cases).

form”), his argument in the district court was all about 10

Borski’s alleged “verbal addenda” creating ambiguities

concerning the rights he waived such that his waiver could

not be deemed knowing and intelligent. Even the most

liberal reading cannot find buried within this argument

the one Domka is now espousing—namely, that the entire

agreement (including the waiver) is unenforceable as a

contract of adhesion. 1

1

Here, where no “jurisdictional questions are presented”

and we are not presented with an “exceptional case[] [in

which] justice demands more flexibility,” Stern v. U.S.

Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir. 1977), we find

no justification to depart from the long-standing rule
No. 07-2984 15

Domka also argues that the district court’s decision to dismiss 12

the action based on a waiver makes it “understandable” that

the parties would put the waiver issue on “center stage now.”

That may well be the case, but it does not mean that this Court

can, or should, consider an argument he did not raise below.

against considering new arguments on appeal. “For ‘[t]o 12

reverse the district court on grounds not presented to it

would undermine the essential function of the district

court.’” Economy Folding Box, 515 F.3d at 720 (quoting Boyers

v. Texaco Ref. & Mktg., Inc., 848 F.2d 809, 812 (7th Cir.

1988)). Accordingly, we do not consider Domka’s contract of adhesion argument.

D.

 Lastly, we address Domka’s claim that the County

violated his due process by failing to seek a court order

for the suspension of his Huber privileges after he was reimprisoned. The Huber statute states that “[a]ny person

sentenced to a county jail for a crime . . . may be granted

the privilege of leaving the jail during necessary and

reasonable hours” for various work and medical related purposes. Wis. Stat. § 303.08(1). Pursuant to the same

statute, “[t]he sheriff may refuse to permit the prisoner to

exercise the prisoner’s privilege to leave the jail as provided in sub. (1) for not to exceed 5 days for any breach of

discipline or other violation of jail regulations.” Wis. Stat.

§ 303.08(10).

Domka has established that although it was Portage

County’s practice to seek a court order revoking an individual’s Huber privileges for 60 days when it terminated

his or her HDP participation, no such request was made
16 No. 07-2984

in his case. The County’s response is that as Domka had

only 40 days remaining to serve, the 60 day court revocation was unnecessary. We need not assess the merits of this

particular dispute. Portage County’s departure in this case

from its usual course of action may well provide Domka

with an argument that the County failed to comply with

the statute. However, this is not the proper venue in

which, nor is a constitutional claim the proper vehicle by

which, to make that claim. “Federal judges do not enforce

state-created procedures in the name of the Constitution,”

Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994)

(citation omitted), and a failure to comply with state

procedural rules does not violate the federal constitution,

see Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002)

and cases cited therein.

III.

For the foregoing reasons, the district court’s judgment

is AFFIRMED.

USCA-02-C-0072—4-24-08