Saenz v. Murphy

• Decision Date: 14 December 1989
• Docket Number: No. 88-2084,88-2084
• Citation: 153 Wis.2d 660,451 N.W.2d 780
• Parties: Jerry SAENZ, Plaintiff-Appellant, v. James P. MURPHY, Coleen James, and Marv Prieve, Defendants-Respondents. d
• Court: Wisconsin Court of Appeals

Page 780

451 N.W.2d 780

153 Wis.2d 660

Jerry SAENZ, Plaintiff-Appellant, v. James P. MURPHY, Coleen James, and Marv Prieve Defendants-Respondents. ^d No. 88-2084.

Court of Appeals of Wisconsin.

Submitted on Briefs June 8, 1989.

Opinion Released Dec. 14, 1989.

Opinion Filed Dec. 14, 1989.

[153 Wis.2d 667] Jerry Saenz, Portage, pro se.

Donald J. Hanaway, Atty. Gen., John J. Glinski, Asst. Atty. Gen., on the brief, for defendants-respondents.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

SUNDBY, Judge.

Jerry Saenz, an inmate of Columbia Correctional Institution (CCI), appeals from a summary judgment dismissing his complaint. The defendants are James P. Murphy, superintendent of CCI, Colleen James, CCI adjustment committee hearing officer, and Captain Marv Prieve, CCI adjustment committee member. Saenz brings this action against the defendants in both their official and individual capacities. He seeks compensatory and punitive damages under 42 U.S.C. sec. 1983, declaratory relief under 28 U.S.C. secs. 2201 and 2202, and injunctive relief. We affirm in part, reverse in part and remand the cause for further proceedings consistent with this opinion.

BACKGROUND

The material facts are undisputed. Saenz alleges that the defendants denied him procedural due process in the following circumstances. ¹

On November 7, 1987, Saenz was involved in an altercation with a correctional officer. A security supervisor placed Saenz in temporary lockup (TLU) and served him with a Notice of Inmate Placed in Temporary Lockup. The security director reviewed the TLU notice and retained Saenz in TLU. On November 9, 1987, Saenz wrote to the director requesting that he be informed of the reason for his TLU. The director did not respond.

On November 10, 1987, Saenz was served with an Adult Conduct Report charging him with offenses arising out of the November 7 incident. The security director determined that the offenses were major offenses to be heard under Wis.Adm.Code, sec. HSS 303.76. On that date, Saenz was also served with a Notice of Major Disciplinary Hearing Rights.

On November 11, 1987, Saenz requested that Dr. Eugene Strangman, a CCI employee, appear at his disciplinary hearing. The security director determined that Dr. Strangman would not be available and noted on Saenz's request: "Advocate will receive statement. The Doctor will not be available for testimony."

The Notice of Major Disciplinary Hearing Rights advised Saenz that a named staff advocate was appointed to represent him. On Saenz's Request for Attendance of Witnesses he added: "Requesting the appointment of a trained advocate and not an 'incompetent correctional officer advocate.' " (Emphasis in original.)

On November 19, 1987, Saenz was brought to a disciplinary hearing before the adjustment committee. Saenz stated to the committee: "I plead not guilty, my due process is being violated, I never received notice of the hearing." The committee, comprised of defendant Colleen James, hearing officer, and defendant Captain Marv Prieve, found Saenz guilty of all charges. The committee stated the reason for its decision as follows: "[I]nmate refused to give committee any information, got up and proceeded out of the hearing room. Therefore committee had to totally rely on statements in conduct report. Advocate (Sampson) stated inmate refused to have an advocate." The committee sentenced Saenz to ten days cell confinement and sixty days program segregation. On December 4, 1987 defendant Superintendent Murphy affirmed the adjustment committee's finding of Saenz's guilt and decision of disposition.

On November 25 and December 2, 1987, Superintendent Murphy dismissed Saenz's complaints relating to his confinement in TLU. The superintendent did not state the reasons for his decisions.

I.

SUMMARY JUDGMENT: FAILURE TO STATE A CLAIM

The first step of the summary judgment review procedure is to determine whether the complaint states a claim. Grams v. Boss, 97 Wis.2d 332, 339, 294 N.W.2d 473, 477 (1980). We therefore examine Saenz's complaint.

Saenz claims that the defendants violated his right to due process by placing and continuing him in TLU without informing him of the reason for his confinement and without an opportunity to respond, contrary to Wis.Adm.Code, sec. HSS 303.11(2) and (5); by failing to give him adequate notice of the date, time and place of his disciplinary hearing, contrary to Wis.Adm.Code, secs. HSS 303.76(3) and 303.81(9); by failing to give him an adequate opportunity to prepare his defense; and by denying his request for a staff member witness to appear at his disciplinary hearing or, alternatively, failing to obtain the witness's statement, contrary to secs. HSS 303.76(1) and 303.81(1), (2), (3), (4), (5) and (7).

The defendants argue that Saenz does not state a claim because he has adequate post-deprivation remedies; because there is no causal connection between them and the violations of due process of which Saenz complains; and because they are entitled to qualified immunity. The defendants further argue that Saenz's claims against them in their official capacities are barred because sovereign immunity deprived the trial court of jurisdiction.

A. Post-Deprivation Remedies

The defendants argue that Saenz has adequate post-deprivation remedies which afford him all the process due. Decisions such as Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, reh'g denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976), Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), signal a contraction of the scope of 42 U.S.C. sec. 1983, stemming from the Court's conclusion in these cases that no constitutional cause of action exists for failure to provide pre-deprivation procedural due process if the depriving jurisdiction provides an adequate post-deprivation remedial system. See R. Smolla, The Displacement of Federal Due Process Claims by State Tort Remedies: Parratt v. Taylor and Logan v. Zimmerman Brush Company, 1982 U.Ill.L.Rev. 831, 882; L. Tribe, American Constitutional Law, sec. 10-14, at 725-26 (1988). In Zinermon v. Burch, No. 87-1965, United States Supreme Court, Burch v. Apalachee Community Mental Health Serv., 840 F.2d 797 (11th Cir.1988), the United States Supreme Court may decide whether this contraction extends to a liberty interest.

This contraction does not, however, extend to the due process rights of disciplinary-action inmates. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Court determined that an inmate who has a liberty interest of "real substance" has a constitutional right to pre-deprivation procedures. Id. at 557, 94 S.Ct. at 2975. Plainly, Saenz's interest in freedom from disciplinary cell confinement and program segregation has real substance. Where the inmate's interest has real substance, the inmate is entitled to "those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Id.

We therefore reject defendants' contention that because their acts may be reviewed by state judicial action such as certiorari, mandamus or injunction, and they may be subject to a tort action, Saenz has failed to state a claim under 42 U.S.C. sec. 1983.

B. Causal Connection

42 U.S.C. sec. 1983 creates a cause of action based upon personal liability and predicated upon fault. Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983). An official cannot be held liable in a sec. 1983 action unless he or she caused or participated in an alleged constitutional deprivation. "A causal connection, or affirmative link, between the misconduct complained of and the official sued is necessary." Id. (Citation omitted.)

We consider each of Saenz's claims to determine whether there is a causal connection between the claimed misconduct and the defendants.

1. Temporary Lockup. Saenz's first claim is that he was restrained in TLU without being given the reason for his confinement and without an opportunity to respond, either orally or in writing, contrary to Wis.Adm.Code, sec. HSS 303.11(2) and (5). We conclude that there is no causal connection between these defendants and Saenz's TLU confinement.

Saenz was placed in TLU by a security supervisor. If an inmate is placed in TLU by a security supervisor, the security director must review this action on the next working day. Wis.Adm.Code, sec. HSS 303.11(2). Before this review, the inmate shall be provided with the reason for his or her confinement in TLU and given an opportunity to respond, either orally or in writing. Id. The security director's review of the decision must include consideration of the inmate's response. Id. If, upon review, the security director determines that TLU is not appropriate, the inmate shall be released immediately. Id. The security director shall review the status of each inmate in TLU every seven days to determine whether TLU continues to be appropriate. Sec. HSS 303.11(3).

Neither defendant James nor defendant Prieve was involved in Saenz's placement and confinement in TLU. Superintendent Murphy did not participate in Saenz's TLU except to deny his inmate complaints. ² The superintendent's acts did not place or continue Saenz in TLU. Saenz does not claim that the superintendent unreasonably delayed acting on his inmate complaint. Nor does he claim that the superintendent had a duty to investigate his TLU status and release him. Murphy is not subject to Saenz's claim simply because he was superintendent of CCI. "Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981)...