Campbell v. Smith & Melendez

• Decision Date: 07 February 2002
• Docket Number: 01-1550
• Citation: 252 Wis. 2d 767,642 N.W.2d 646
• Parties: Gary Campbell, Plaintiff-Appellant, v. Jerry Smith, Jr. and Fred Melendez, Defendants-Respondents. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV DATED AND FILED
• Court: Wisconsin Court of Appeals

Gary Campbell, Plaintiff-Appellant v Jerry Smith, Jr. and Fred Melendez, Defendants-Respondents

Appeal No. 01-1550

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

DATED AND FILED February 7, 2002

APPEAL from an order of the circuit court for Dane County: MORIA KRUEGER, Judge.Affirmed.

Before Vergeront, P.J., Dykman and Lundsten, JJ.

1.PER CURIAM.

Gary Campbell, a prison inmate, appeals from an order dismissing his action against Jerry Smith, Jr., and Fred Melendez, two members of the Wisconsin Parole Commission.His complaint sought damages in tort for the respondents' alleged violation of his due process and equal protection rights during a parole review proceeding.On its own motion, pursuant to Wis. Stat. 802.05(3)(1999-2000),¹the trial court dismissed the complaint for failure to state a claim upon which relief could be granted.Campbell takes his appeal from that decision.We affirm.

2.The allegations of Campbell's complaint are deemed true for purposes of this review, which we conduct de novo.Wausau Tile, Inc. v. County Concrete Corp., 226 Wis.2d 235, 245, 593 N.W.2d 445(1999).The complaint states that Campbell became eligible for parole in January 2000.Immediately thereafter Melendez conducted a parole review and denied parole to Campbell without affording him a hearing.By doing so, Campbell asserts, Melendez violated his due process and equal protection rights and negligently and intentionally subjected him to emotional distress, entitling him to damages.

3.Courts should liberally construe inmate petitions and complaints.SeeState v. Debra A.E., 188 Wis.2d 111, 138, 523 N.W.2d 727(1994).Campbell's complaint, construed liberally, sought certiorari review of the parole decision, and alleged a 42 U.S.C. 1983 federal civil rights claim for damages and a state tort law claim.

4.Campbell failed to state a claim for certiorari review.Aside from the fact that Campbell expressly disavows any intention to pursue certiorari review, his complaint was not timely filed for that purpose.SeeWis. Stat. 893.735(2)(an action for certiorari review is barred unless commenced within forty-five days after the cause of action accrues).

5.Campbell also failed to state a claim for damages under 42 U.S.C. 1983.One may not pursue procedural due process claims under this section for state actions if those actions are, as here, random and unauthorized, and an adequate post-deprivation state remedy exists.SeeIrby v. Macht, 184 Wis.2d 831, 843, 522 N.W.2d 9(1994), overruled on other grounds, Sandin v. Conner, 515 U.S. 472(1995).Review by certiorari is an adequate post-deprivation remedy that Campbell could have pursued.Seeid. at 846-47.

6.Throughout his complaint, Campbell alleges that he was denied his "Equal Protection rights."He never claims, however, that Smith or Melendez intentionally discriminated against him or even that prisoners similarly situated to him were given more favorable treatment.He...