Maddox v. Berge

• Decision Date: 08 February 2007
• Docket Number: No. 06-C-761-C.,06-C-761-C.
• Citation: 473 F.Supp.2d 888
• Parties: Cornelius R. MADDOX, Petitioner, v. Gerald BERGE, Jon E. Litscher, Randy Hepp, Peter Huibregtse, Capt Blackbourn, Ms. T. Hanson, Lt. Grondin, Linda Hoddy-Tripp, Tim Haines and Mr. & Mrs. Miles, Respondents.
• Court: U.S. District Court — Western District of Wisconsin

Page 888

473 F.Supp.2d 888

Cornelius R. MADDOX, Petitioner, v. Gerald BERGE, Jon E. Litscher, Randy Hepp, Peter Huibregtse, Capt Blackbourn, Ms. T. Hanson, Lt. Grondin, Linda Hoddy-Tripp, Tim Haines and Mr. & Mrs. Miles, Respondents.

No. 06-C-761-C.

United States District Court, W.D. Wisconsin.

February 8, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Respondents.

OPINION AND ORDER

CRABB, District Judge.

This is a proposed civil action for monetary relief, brought under 42 U.S.C. § 1983. Petitioner, who is presently confined at the Green Bay Correction Institution in Green Bay, Wisconsin, asks for leave to proceed under the in forma pauperis statute, 28 U.S.C. § 1915. From the financial affidavit petitioner has given the court, I conclude that petitioner is unable to prepay the full fee for filing this lawsuit. Petitioner has made the initial partial payment required under § 1915(b)(1).

In addressing any pro se litigant's complaint, the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, if the litigant is a prisoner, the 1996 Prison Litigation Reform Act requires the court to deny leave to proceed if the prisoner has had three or more lawsuits or appeals dismissed for lack of legal merit (except under specific circumstances that do not exist here), or if the prisoner's complaint is legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks for money damages from a defendant who by law cannot be sued for money damages. This court will not dismiss petitioner's case on its own motion for lack of administrative exhaustion, but if respondents believe that petitioner has not exhausted the remedies available to him as required by § 1997e(a), they may allege his lack of exhaustion as an affirmative defense and argue it on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Massey v. Heiman, 196 F.3d 727 (7th Cir. 1999); see also Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532 (7th Cir.1999).

In his complaint, petitioner alleges the following facts.

ALLEGATIONS OF FACT

Petitioner is an inmate at the Green Bay Correctional Institution in Green Bay, Wisconsin. At all material times, petitioner was a prisoner confined either at the Whiteville Correctional Facility in Whiteville, Tennessee or the Wisconsin Secure Program Facility in Boscobel, Wisconsin. At all relevant times, Gerald Berge was warden and Peter Huibregtse was deputy warden of the Wisconsin Secure Program Facility; Jon E. Litscher was secretary of the Department of Corrections; Randy Hepp was a Department of Corrections investigator; Capt. Blackbourn was a security captain at the Wisconsin Secure Program Facility; and Ms. T. Hanson, Lt. Grondin, Linda Hoddy-Tripp, Tim Haines and Mr. and Mrs. Miles served on the administrative confinement review committee at the Wisconsin Secure Program Facility.

On November 11, 1999, petitioner was confined as a Wisconsin state prisoner at the Whiteville Correctional Facility in Whiteville, Tennessee. At that time, a riot occurred at the facility. Petitioner was not a participant in the riot. Nevertheless, on December 20, 1999, he was issued a disciplinary report charging him with insurrection and theft incident to the alleged insurrection. The incident report did not include any information telling petitioner why he was believed to be a participant in the riot or identify any witnesses who might have implicated petitioner. This meant petitioner had to guess how to defend himself.

On December 22, 1999, petitioner attended a disciplinary hearing on the charges against him. He testified on his own behalf and contested the charges. Nevertheless, he was found guilty of both charges and sentenced to 60 days' disciplinary segregation. The hearing form petitioner received listed the reason for the disciplinary committee's decision as "Inmate has been advised that anything he says can and will be used against him in any outside agency" and the reason for the punishment imposed as "due to investigation." Petitioner's own testimony was not recorded on the form and the form did not list the evidence relied on in finding petitioner guilty. Respondent Hepp was the investigator responsible for investigating the riot. He made findings without any evidence that petitioner was one of the prisoners involved.

As a result of the finding of guilt on these disciplinary infractions, petitioner was designated for placement at the Wisconsin Secure Program Facility, then known as the Supermax Correctional Institution. He arrived at the institution on January 13, 2000. There, respondent Blackbourn recommended petitioner for administrative confinement status. Respondent Blackbourn was responsible for insuring that there was a legitimate basis for recommending an inmate's placement in administrative confinement. He knew there was no evidence to support the disciplinary charges against petitioner yet relied entirely on the disciplinary report to recommend petitioner for administrative confinement status. As a result of this recommendation, respondents Hanson, Grondin, Hoddy-Tripp, Haines and Mr. and Mrs. Miles placed petitioner on administrative confinement, knowing there was no basis for holding petitioner in that status. Respondents Huibregtse, Berge and Litscher upheld petitioner's placement, also knowing there was no basis for the decision.

Petitioner's placement at the Wisconsin Secure Program Facility was for an indefinite period. He remained there for more than 20 months before he was transferred to another institution. While he was in administrative confinement he could not participate in program assignments. He Was required to leave open for inspection non-legal mail going out of the institution. His phone calls and visits were limited to a list of 12 people. He was not allowed to engage in activities with other prisoners or communicate with them. He was confined to his cell 23 hours a day. He was denied outside recreation and was deprived of magazines, newspapers and leisure television. He was exposed to 24-hour lighting in his cell and subjected to strip searches "almost any time he left his cell." He was provided no educational opportunities.

On July 12, 2001, another court in "an unrelated case" required former Whiteville Correctional Institution inmates to be released from administrative confinement at the Wisconsin Secure Program Facility. On that date, the disciplinary report was expunged from petitioner's record and he was transferred from the facility.

DISCUSSION

In his complaint, petitioner suggests that his action is brought for alleged "violations of his Eighth and Fourteenth Amendment rights." In that regard, I understand him to be contending that respondent Randy Hepp violated his Fourteenth Amendment right to procedural due process when he flailed to undertake an adequate investigation of the charges brought against petitioner in late 1999 and found petitioner guilty of the charge of participating in a riot without evidence to support the finding. In addition, I understand petitioner to allege that the remaining respondents violated his procedural due process rights by assigning him to administrative confinement upon his arrival at the Wisconsin Secure Program Facility and upholding the placement decision on the basis of a finding of guilt on the disciplinary infraction that they knew to be meritless. Finally, I understand petitioner to allege that respondents Berge and Litscher violated his Eighth Amendment rights by subjecting him to the conditions of confinement in administrative segregation at the Wisconsin Secure Program Facility for twenty months beginning on January 13, 2000. In addition to these claims specified by petitioner, I have construed petitioner's complaint to include additional constitutional claims that will be discussed separately in this opinion and order.

A. Procedural Due Process

At the outset, I note that many of petitioner's procedural due process claims must be dismissed because the statute of limitations has run on these claims. Although the basic rule is that a statute of limitations defense is an affirmative defense, the Court of Appeals for the Seventh Circuit has held that a court may raise an affirmative defense on its own if it is clear from the face of the complaint that the defense applies. United States v. Lewis, 411 F.3d 838 (7th Cir.2005); Gleash v. Yuswak, 308 F.3d 758, 760-61 (7th Cir. 2002). That exception is present here, because petitioner's complaint plainly reveals that portions of all of his claims are untimely under the governing statutes of limitations.

Actions brought under 42 U.S.C. § 1983 are governed by the personal injury statute of limitations and tolling laws in the state where the alleged injury occurred. Lewellen v. Morley, 875 F.2d 118, 120 (7th Cir.1989); see also Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Petitioner alleges that he was denied procedural due process in connection with a disciplinary hearing held in late 1999 in Whiteville, Tennessee, for which he was found guilty in December of that year. In addition, he appears to allege that he was denied due process in connection with his transfer to the Wisconsin Secure Program Facility in January of 2000 and, possibly, that he was denied due process in connection with his retention in administrative confinement at the facility.

Tennessee's statute of limitations would apply to petitioner's claims that his 1999 disciplinary hearing in Tennessee was procedurally defective and that his transfer from Whiteville to the Wisconsin Secure Program Facility in January 2000 was accomplished without appropriate procedural safeguards. In Tennessee, the statute of limitations for claims...