Aiello v. Litscher
| Decision Date | 07 June 2000 |
| Docket Number | No. 98-C-0791-C.,98-C-0791-C. |
| Citation | 104 F.Supp.2d 1068 |
| Parties | Louie E. AIELLO, Brian Huisman, Demian McDermott, Corey Keller, Dean Sabin, Cody Vandenberg and Casey Fisher, on behalf of themselves and all others similarly situated, Plaintiffs, v. Jon E. LITSCHER, Secretary, Richard Verhagan, Administrator, Wisconsin Department of Corrections Division of Adult Institutions, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Lauren B. Raphael, Roger Baldwin Foundation of ACLU, IN, Chicago, IL, for plaintiffs.
John J. Glinski, Assistant Attorney General, Madison, WI, for defendants.
In this civil action for injunctive relief, plaintiff prisoners Louie E. Aiello, Brian Huisman, Demian McDermott, Corey Keller, Dean Sabin, Cody Vandenberg and Casey Fisher, on behalf of themselves and as representatives of a class of similarly situated Wisconsin prisoners, contend that a policy enacted by defendants Jon E. Litscher and Richard Verhagan of the Wisconsin Department of Corrections prohibiting access to allegedly sexually explicit materials violates their rights to freedom of speech protected by the First Amendment and due process of law protected by the Fourteenth Amendment. Subject matter jurisdiction is present. See 28 U.S.C. § 1331. The case is before the court on defendants' motion for summary judgment and plaintiffs' motion to correct two citation errors. Because I find that there are material disputes of fact regarding whether the challenged regulation serves legitimate penological interests and provides fair notice of what it prohibits, defendants' motion for summary judgment will be denied. Plaintiffs' motion to correct two citation errors will be granted.
A word is required regarding defendants' proposed findings of fact. Defendants cite the affidavit testimony of their witnesses for record support of their proposed facts, but the credibility of that testimony is in grave doubt. An example from the affidavit of Sergeant Marcia L. Byers illustrates the problem. Byers was a guard at least two prisons in Wisconsin. In her sworn affidavit, Byers stated,
Prisoners often deal in materials prohibited by the rule because it has value inside the prison. Prisoners will sell or rent such materials to other prisoners for profit or to pay off debts. Such materials can include publications such as Playboy magazine, Penthouse magazine, Hustler magazine, Gallery magazine, the Sports Illustrated swimsuit issue, Victoria's Secret catalogs, Vanity Fair magazine, Cosmopolitan magazine, Maxim magazine, National Geographic magazine and medical, scientific and artistic publications.
The same paragraph, with minor variations, appears in many if not most of the sworn affidavits defendants submitted. However, when deposed, Byers testified she had never even heard of Maxim or Vanity Fair magazines before her deposition had never seen a Sports Illustrated swimsuit issue and had never seen inmates selling or renting Penthouse, Cosmopolitan or the Victoria's Secret catalog. In fact, Byers could recall only one incident in which there was a problem related to a magazine, Hustler, and that occurred only at the women's prison where she was formerly a guard. This is significant because Byers also stated in her affidavit (in another paragraph that reappears repeatedly in other affiants' testimony) that one problem with the presence of such magazines and "medical, scientific and artistic publications" is that male prisoners use them to masturbate in front of female guards or otherwise expose themselves to the female guards.
In short, Byers's sworn affidavit was untrue and possibly perjurious. And hers is only one example; several of defendants' deposed affiants contradicted their own sworn affidavits or revealed that their "personal knowledge" was based on many, many layers of hearsay. For example, defendants' expert Dr. Hands admitted in deposition testimony that he did not know whether any incidents of inappropriate touching of staff by inmates had anything to do with materials banned by the regulation, despite his affidavit averment that they did. Defendants' rather cavalier response is that even if some of the sworn testimony they submitted is untrue, plaintiffs have not proven that all of it is. It is true that plaintiffs' pro bono counsel did not depose every one of defendants' affiants and not all of those who were deposed contradicted their affidavit testimony, but those who did cast a pall on the credibility of the rest. See Colosi v. Electri-Flex Co., 965 F.2d 500, 503 (7th Cir.1992) ( ). It is not the court's responsibility to compare each affidavit with the deposition testimony of the affiant; it is defendants' responsibility to insure that each affidavit they submit to the court is based upon the affiant's personal knowledge. See Fed.R.Civ.P. 11. This is particularly so because the same boilerplate language, obviously drafted by defendants' counsel, appears again and again as the affiants' own sworn testimony, and it is this language in particular that several affiants admitted was not derived from their personal knowledge. Not only is this practice potentially sanctionable, see Rule II(b)(3), it is an unwise litigation strategy. The credibility of all of defendants' affidavit testimony has been compromised by their carelessness (at best) in submitting some that is untrue.
In addition, both parties ignored the requirement of this court's Procedure to be Followed on a Motion for Summary Judgment at I.C.2. that "to the extent practicable, each paragraph shall state only one factual proposition." Instead, the parties often included dozens of factual proposition within a single paragraph, followed by string citations to deposition or affidavit testimony that does not explain which part of the record supports which proposition. With the credibility of defendants' proposed facts already in doubt, and with the parties' failure to identify specific facts and support them with citations to the record, the court is left with an almost insurmountable burden in attempting to cull a body of undisputed facts in order to decide defendants' motion for summary judgment.
Because it is defendants' motion for summary judgment, there is a heightened burden on defendants to assist the court in creating a body of undisputed facts. In submitting affidavit evidence not based on the personal knowledge of the affiants, defendants do not carry out that responsibility. The court simply does not have the resources to sort through each affidavit and deposition to discover which are trustworthy and therefore which facts are truly undisputed for the purpose of deciding defendants' motion. The "sanction" defendants will suffer for submitting false affidavits is not a punishment but rather is the inevitable consequence of submitting such affidavits: most of their proposed facts cannot be credited and thus cannot form a basis for deciding their motion in their favor.
Even with the credibility of defendants' proposed facts compromised, most of the proposed facts in this case are in dispute. However, from facts proposed by the parties, I find the following to be material and undisputed.
In 1994, the Wisconsin Department of Corrections appointed a committee of experienced staff to reevaluate department's regulations governing materials coming into the prisons. The previous regulations had prohibited materials that met the legal standard for obscenity as well as visual depictions of acts such as sadism, bestiality and sex involving children. The committee recommended new language clarifying restrictions on personal photographs, sexual contact involving violence and other material raising specific concerns regarding security and rehabilitation. The committee recommended that magazines depicting nudity but not deviant sex acts, such as Playboy, should not be banned from the prisons. The committee never considered banning verbal descriptions of sexual activity in personal letters or books.
The governor's office intervened in the process, ordering that the regulation be written more broadly. Mr. Simonson, a lawyer who served as the governor's representative, insisted that the regulation be written more broadly despite advice from committee members that they "felt strongly" that materials such as Playboy should be allowed. The breadth of the resulting regulation was questioned and ridiculed by some of the department's employees.
As enacted, Wis.Admin.Code DOC § 309.04(4)(c) prohibits prison officials from distributing certain incoming correspondence to inmates for a variety of enumerated reasons. One such restriction applies to mail that is "injurious," defined as any material that is "in whole or in part, pornography." § 309.04(4)(c)8.a. Similarly, under § 309.05(2)(b), inmates may not receive publications that are injurious, as defined in § 309.04. Pornography is defined as including
... any material, whether written, visual, video, or audio representation or reproduction that depicts any of the following:
(a) Human sexual behavior.
(b) Sadomasochistic abuse....
(c) Unnatural preoccupation with human excretion.
(d) Nudity which appeals to the prurient interest in sex.
(e) Nudity which is not part of any published or printed material, such as a personal nude photograph.
§ 309.02(16). Nudity "means the showing of the human male or female genitals, pubic area or buttocks with less than fully opaque covering, or the showing of the female breast with less than fully opaque covering of any portion below the top of...
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