George v. Smith
| Decision Date | 22 December 2006 |
| Docket Number | No. 05-C-0403-C.,05-C-0403-C. |
| Parties | Larry GEORGE, Plaintiff, v. Judy SMITH, Ruth Tritt, Marty Schroeder, Officer Vilski, Tim Pierce, Nurse Carivou, Rebecca Blodgett, Tom Edwards, Mary Hopfensperger and Dr. Chan, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Jody J. Schmelzer, Assistant Attorney General, Madison, WI, for Defendants.
This is a civil action for injunctive and monetary relief, brought pursuant to 42 U.S.C. § 1983. Currently before the court is defendants' motion for summary judgment on the merits of plaintiff's claims. In a separate opinion, entered on December 7, 2006, I have considered whether five of plaintiffs claims should be dismissed for plaintiff's failure to exhaust his administrative remedies and concluded that plaintiff exhausted his administrative remedies with respect to all but one of his claims. Plaintiff exhausted his claims that defendants Ruth Tritt, Marty Schroeder, Mary Hopfensperger, Officer Vilski, Tim Pierce and Rebecca Blodgett violated his First Amendment right to free speech by (1) refusing to deliver numerous magazines to which plaintiff subscribed because they contained "gang signs"; (2) prohibiting plaintiff from possessing three "art books" because defendants deemed them pornographic; (3) prohibiting plaintiff from possessing an atlas and (4) refusing to deliver to plaintiff a newsletter regarding prison medical care, with one exception; he did not exhaust his claim that defendant Tritt violated plaintiffs First Amendment rights by denying him delivery of the December 2004 issue of Maxim magazine. Moreover, plaintiff exhausted his Eighth Amendment claims against defendants Judy Smith, Tom Edwards, Nurse Carivou and Dr. Chan.
Defendants' motion for summary judgment will be granted with respect to all but two of plaintiffs claims. Plaintiffs claims regarding defendants's refusal to deliver "art books" because they contained pornography is governed by the settlement in Aiello and may not be raised in this lawsuit. Second, defendants have adduced sufficient evidence that the decision to prohibit delivery of an atlas to plaintiff was reasonably related to a legitimate penological interest. Plaintiff contends that Department of Corrections policies prohibiting the delivery of publications that contain gang symbols violate his First Amendment rights on their face, but this challenge fails because the regulation is reasonably related to the legitimate penological interest of maintaining institutional security. Defendants' motion for summary judgment will be granted with respect to plaintiffs claims that defendants misapplied these regulations when they refused to deliver to him the March 2005 issue of FHM, because, from the undisputed facts, a jury could not reasonably infer that this decision was an arbitrary or irrational application of the regulations. Finally, defendants' motion for summary judgment will be granted with respect to all of plaintiffs Eighth Amendment medical care claims because plaintiff has failed to propose facts from which a reasonable jury could infer that defendants displayed deliberate indifference to his serious medical needs by (1) failing to insure that he had bottles of his prescription Nasacort at all times; (2) providing him with incorrect medication on one occasion; (3) allowing him to be exposed to second-hand smoke; and (4) refusing to allow him to see an eye doctor for several months. Defendants' motion for summary judgment will be stayed with respect to plaintiff's claims that he was wrongfully denied the July 2003 issue of FHM and the June 2003 issue of Rolling Stone because I cannot determine the merits of plaintiffs claims without reviewing the allegedly objectionable images.
Before setting out the facts, I must address two preliminary matters. First plaintiff has asked for reconsideration of an order entered in this case on October 26, 2006, in which I ruled that the court would not consider affidavits and other exhibits that plaintiff filed with the court but did not send to defendants. Plaintiff s motion for reconsideration will be denied. Plaintiff contends that he should be excused from the requirement of sending these materials to defendants' counsel because photocopying the materials could be construed as a violation of the Oshkosh Correctional Institution policy that requires prisoners to "drop off only [their] own legal or personal material for photocopying."
Plaintiff has not submitted any documentation to support his interpretation of the prison policy. His view seems nonsensical. In the past, prisoners have had no difficulty securing affidavits from fellow inmates on matters pertaining to their lawsuits. Such affidavits are their "legal material." If prison officials were to punish an inmate for obtaining eyewitness testimony concerning claims raised in his lawsuit, that inmate may well have a strong case against those officials for interfering with his right of access to the courts. Because plaintiff has suggested no valid reason to disturb the decision to disregard the affidavits that he failed to serve on defendants, his motion for reconsideration will be denied.
Second, one of plaintiffs First Amendment claims is that defendants wrongfully refused to deliver to him a newsletter from the "Jeff Dicks Medical Coalition." Defendants assert that the newsletter contained statements that were either attempts to solicit money from prisoners or encouragement to solicit money from others, in violation of Department of Corrections policy. Defendants did not include a copy of this newsletter for an in camera review by the court. However, plaintiff did provide the court with his copy of the newsletter, along with the other documents that he submitted to the court but did not serve on defendants. Dkt. # 51, Exh. 40. Plaintiff does not explain how he came to possess the newsletter after it had been denied to him. As noted above, I have generally disregarded material that plaintiff failed to serve on defendants. However, in the interest of equity and efficiency, I have reviewed the content of the newsletter from Jeff Dicks Medical Coalition; as noted above, I will grant defendants' motion for summary judgment on this claim.
From the parties' proposed findings of fact and supporting materials, I find the following to be material and undisputed.
Plaintiff Larry George is a prisoner who was housed at the Oshkosh Correctional Institution at all times relevant to this lawsuit.
Defendant Judy Smith is Warden of the Oshkosh Correctional Institution, a position she has held since September 29, 1996. Defendant Ruth Tritt is a correctional officer at the Oshkosh Correctional Institution, a position she has held since May 25, 1997. Defendant Martin Schroeder was previously employed as the disruptive group gang coordinator at the Oshkosh Correctional Institution. He held this position from June 1989 until his retirement in January 2004. Defendant Rebecca Blodgett is a corrections unit supervisor at the Oshkosh Correctional Institution. Defendant Blodgett has been the disruptive group coordinator at the Oshkosh. Correctional Institution since February 2002. Defendant Laura Vilski is a correctional officer at the Oshkosh Correctional Institution, a position she has held since May 25, 1997. Defendant Tai Chan is an optometrist who has been employed by the Wisconsin Department of Corrections since September 1998. Defendant Chan works at four correctional institutions, including the Oshkosh Correctional Institution. Defendant Thomas Edwards is the health services manager at the Oshkosh Correctional Institution, a position he has held since July 19, 1998. Defendant Edwards has been a licensed registered nurse since October 1982. Defendant Wendy Carivou is a registered nurse at the Oshkosh Correctional Institution, a position she has held since June 2, 2002. Defendant Timothy Pierce is an inmate complaint examiner at the Oshkosh Correctional Institution, a position he has held since August 17, 1986.
Gangs threaten, coerce and harass others, engage in illegal activities or encourage them and generally pose a threat to correctional staff and prisoner safety in correctional institutions. The presence of gangs and the possibility of gang violence undermine prison authority and intimidate others.
Correctional officers have a responsibility to suppress and manage gang activity and reduce the number of violent gangrelated incidents. In carrying out this responsibility, correctional officers search prisoners' living areas and monitor their telephone conversations and incoming and outgoing mail. These activities are intended to reduce covert communications by prisoners involved in gangs, so as to reduce the number of incidents of strongarming and intimidation, the risk of assaults on staff and other prisoners and the possibility of organized disturbances. In spite of these efforts, there is still gang activity within the Oshkosh Correctional Institution, which houses approximately 309 confirmed gang members and 73 suspected gang members.
Gangs often use hand signals to communicate covertly with other gang members and to antagonize rival gangs. These hand signals are commonly called "gang signing." Signs and gestures may have vastly different meanings among different gangs and may be used to convey feelings or direct actions. Gang signing may direct a gang member to punish another gang member or fight a rival gang member.
To, prevent or impede gang members from passing messages through signs, the prison's policy is to make the passage of messages as difficult as possible. Department of Corrections policy prohibits prisoners from receiving or possessing publications that include depictions of gang signs, symbols and other...
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