Kerr v. Puckett

• Decision Date: 21 May 1997
• Docket Number: No. 95-C-1155.,95-C-1155.
• Citation: 967 F.Supp. 354
• Parties: James W. KERR and Others Similarly Situated, Plaintiffs, v. Steven PUCKETT, Jerry Vigdal, Sherry Graeber, Sherry Knapp, Laura Welle, Terri Landwehr, Michael Sullivan, Steven Zanskas and Various John Does, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

967 F.Supp. 354

James W. KERR and Others Similarly Situated, Plaintiffs, v. Steven PUCKETT, Jerry Vigdal, Sherry Graeber, Sherry Knapp, Laura Welle, Terri Landwehr, Michael Sullivan, Steven Zanskas and Various John Does, Defendants.

No. 95-C-1155.

United States District Court, E.D. Wisconsin.

May 21, 1997.

COPYRIGHT MATERIAL OMITTED

Timothy A. Provis, Madison, WI, for Plaintiffs.

Michael J. Losse, Assistant Attorney General, Madison, WI, for Defendant.

DECISION AND ORDER

CURRAN, District Judge.

James Kerr, a former inmate of Wisconsin prisons, is suing five Wisconsin officials¹ and three employees² of the Drug Abuse Correctional Center (DACC) in Winnebago, Wisconsin. Kerr claims that these Defendants violated his civil rights and his rights under Wisconsin law in connection with their roles in running prison drug rehabilitation programs. Kerr is seeking injunctive, declaratory and monetary relief for himself and "others similarly situated" pursuant to 42 U.S.C. § 1983.

After the deadline for completing discovery had passed, the Defendants moved for summary judgment on the ground that no material facts are in dispute and that they are entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56(c). After this first motion was fully briefed, the Court of Appeals for the Seventh Circuit issued a decision in a related case, Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996). In that case Kerr had sued the warden and supervisor of the Social Services Department at the Oakhill Correctional Institution in Wisconsin for violating his civil rights by compelling him to participate in a Narcotics Anonymous program. Kerr is not suing these two Defendants in this case and it is not clear whether the Narcotics Anonymous program is at issue in the instant case where Kerr makes broad and sweeping challenges to Wisconsin's prison drug programs. Although the Defendants in Kerr v. Farrey were represented by the Wisconsin Attorney General's Office, the Assistant Attorney General defending the state employees in this case claimed to be unaware of Kerr v. Farrey and Kerr had not revealed that he had a similar case pending. Therefore, when the Seventh Circuit issued its decision in Kerr v. Farrey on August 27, 1996, this court denied the pending summary judgment motion and ordered rebriefing. Kerr retained counsel to represent him and the rebriefing has been completed.

I. PLAINTIFFS' POSITION

On March 10, 1992, Kerr was found guilty of the offense of possession with intent to deliver heroin. He was sentenced to eight years of incarceration in the Wisconsin State Prison System. Kerr began his imprisonment at the Dodge Correctional Institution, then was transferred to Waupun, to Kettle Moraine, to the Drug Abuse Correctional Center (DACC) at Winnebago, Wisconsin, and finally to Oakhill from which he was released on parole on August 14, 1995. The claims Kerr raises in this action appear to stem from the time he spent at the DACC which he entered on October 4, 1994, after attempting suicide at Kettle Moraine. While at the DACC, Kerr participated in two drug programs — the Drug and Alcohol Treatment Unit (DATU) and another he calls "NEXUS." Kerr failed to complete either program before he was transferred to Oakhill on November 22, 1994.

Kerr's Amended Complaint raises twelve "causes of action" against one or more of the Defendants. In a rambling and jargon-laden narrative, Kerr alleges that, after he entered the Wisconsin prison system, he voluntarily participated in drug programs because his goal was "to live drug-free and sober for the remainder of his life." [Amended] Civil Rights Complaint With a Jury Demand at ¶ 20. Kerr soon concluded, however, that he did not agree with the philosophical underpinnings of the drug programs. He claims that the programs included "intense political re-education and/or indoctrination," and branded him as a hard-core, career criminal in need of moral re-education. According to Kerr, the program directors tried to force him to feel guilt. He says he was compelled to lie and to pretend that he agreed with laws that criminalize drug use, when he really believes that drug use should be legalized. Although Kerr did not think that he needed the drug programs, he claims that he was coerced into participating because it was the only way that he could win early release. Kerr alleges that he was denied due process when he was initially classified as eligible for the drug programs and again when he was terminated from the programs. After he was terminated, Kerr became aware that DACC personnel had noted in his record that he had refused to participate in the rehabilitation programs. Kerr says that this information is false. Kerr began investigating the drug programs through State Open Records requests and discovered that one of the social workers was not properly certified by the state. Although the record shows that the Defendants responded to this complaint and conducted an investigation, see Plaintiffs' Brief Opposing Summary Judgment at Exhibits 24a-29b, Kerr complains that he was denied access to the courts to present other criticisms of the drug programs.

Based on these events, Kerr charges that all the Defendants conspired to deprive him of federal and state rights derived from the Due Process Clause, the Equal Protection Clause, the First, Fourteenth and Eighth Amendments, the Wisconsin Mental Health Act, the Ex Post Facto Clause, the constitutional prohibition against bills of attainder, and Sections 1983, 1985 and 1986 of Title 42 of the United States Code. In an affidavit submitted in opposition to the Defendants' summary judgment motion, Kerr adds that his First Amendment rights were violated because a "serenity prayer" and the Our Father were recited by those running the drug program. See Supplemental Affidavit of James Kerr (filed November 1, 1996).

In responding to the summary judgment motion, Kerr condenses his twelve causes of action as follows:

The gravamen of KERR's complaint is simple. He alleges the drug rehabilitation programs he was required to complete, i.e., NEXUS and DATU, in order to secure the earliest possible parole violated

1) the Eighth Amendment prohibition against cruel and unusual punishment because the "criminal thinking" portions of the programs used psychological torture to achieve political and moral re-education outside the scope of proper rehabilitation and

2) the First Amendment prohibition against establishment of religion because an explicitly religious philosophy was promoted in these programs. Cf. Kerr v. Farrey, 95 F.3d 472, 479-480 (7th Cir.1996).

As to damages, KERR claims his failure to complete the required drug rehabilitation programs due to these constitutional violations lengthened his time in prison, causing him irreparable harm because he was unable to see his mother one last time before she died of cancer.

Plaintiff Kerr's Brief Opposing Summary Judgment at 1-2.

II. DEFENDANTS' POSITION

In moving for summary judgment, the Defendants argue that they are entitled to qualified immunity because they did not deprive Kerr of any constitutional right. They point out that, even if prison regulations infringe on an inmate's constitutional rights, the regulations can still be valid if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987). The Defendants maintain that their drug treatment programs do not violate due process or equal protection and that the programs conferred no property or liberty interest upon Kerr. In their view, Kerr is not entitled to any type of drug treatment while in prison, let alone a course of treatment which comports with his philosophy of life.

They also point out that there is no support in the record for Kerr's contention that his sentence was lengthened due to his failure to complete the drug rehabilitation program. Even though his 1992 sentence was for eight years and his mandatory release date was in 1997, he was released in 1995.

III. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56(c), a party moving for summary judgment must show that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); McGraw-Edison Company v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir.1986). When faced with a properly supported motion for summary judgment, the nonmovant may not avoid judgment by simply resting on his pleadings. If the nonmovant bears the burden of persuasion on an issue at trial, he must affirmatively demonstrate, by specific showings, that there is a genuine issue of material fact requiring a trial. See First National Bank of Cicero v. Lewco Securities Corporation, 860 F.2d 1407, 1411 (7th Cir.1988).

A "genuine" factual issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either side. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2511.

A summary judgment procedure is not meant to be a trial on affidavits. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The inferences are to be drawn in [the nonmovant's] favor." Id., at 255, 106 S.Ct. at 2513. At...