Santiago v. Ware, No. 95-0079

CourtCourt of Appeals of Wisconsin
Writing for the CourtSUNDBY
Citation205 Wis.2d 295,556 N.W.2d 356
Decision Date30 September 1996
Docket NumberNo. 95-0079
PartiesLydia SANTIAGO, as Personal Representative of the Estate of Jaime Santiago, Plaintiff-Respondent, d v. Kathleen WARE, Wayne Mixdorf, Todd Zangl and Dennis Danner, Defendants-Appellants.

Page 356

556 N.W.2d 356
205 Wis.2d 295
Lydia SANTIAGO, as Personal Representative of the Estate of
Jaime Santiago, Plaintiff-Respondent, d
v.
Kathleen WARE, Wayne Mixdorf, Todd Zangl and Dennis Danner,
Defendants-Appellants.
No. 95-0079.
Court of Appeals of Wisconsin.
Submitted on Briefs July 10, 1996.
Decided Sept. 30, 1996.

Page 359

[205 Wis.2d 304] For the defendants-appellants the cause was submitted on the briefs of James E. Doyle, attorney general, and Stephen J. Nicks, assistant attorney general.

For the plaintiff-respondent the cause was submitted on the brief of Lawrence Bensky and Melanie Cohen of Lafollette & Sinykin of Madison.

Before DYKMAN, P.J., and PAUL C. GARTZKE and ROBERT D. SUNDBY, Reserve Judges.

GARTZKE, Reserve Judge.

Kathleen Ware, Todd Zangl and Dennis Danner appeal from a judgment awarding damages to Jaime Santiago, an inmate at Waupun Correctional Institution (WCI). The defendants are state prison employees whose duties include the disciplining of inmates. The underlying [205 Wis.2d 305] action is for damages under 42 U.S.C. § 1983 and damages under state law for negligence.

The § 1983 issues are whether: (1) Santiago had a liberty interest in not having his mandatory release date extended and in remaining in a community residential confinement program; (2) Santiago waived procedural due process objections by not raising them at his disciplinary hearing and on administrative appeal; (3) the evidence presented at Santiago's disciplinary hearing satisfies due process requirements; (4) the defendants' acts were random and unauthorized and did not deprive Santiago of due process because he had adequate state remedies; and (5) the defendants enjoy qualified immunity from this suit. The issue on the state law negligence claims against Ware, Zangl and Danner is whether the defendants enjoy discretionary immunity.

We conclude Santiago had a liberty interest in not having his mandatory release date extended, but not in remaining in a community-residential confinement program. We conclude that Santiago waived all procedural due process objections, except for one: that the evidence presented at his hearing did not satisfy due process requirements. Because that objection is one of procedural rather than substantive due process, we conclude

Page 360

defendants prevail under the random and unauthorized conduct defense. Because of our disposition, we do not reach the issue of qualified immunity. 1 We also conclude defendants Ware, Zangl [205 Wis.2d 306] and Danner enjoy discretionary immunity from Santiago's state law negligence claim. We reverse.

I.

BACKGROUND 2

Jaime Santiago was a thirty-seven-year-old inmate in the Wisconsin correctional system who resided at Plymouth Manor Nursing Home in Milwaukee under care for progressive amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease. 3 He had been transferred from Columbia Correctional Institution to the Community Residential Confinement (CRC) program on January 8, 1992, the same date on which he entered Plymouth Manor. 4

By June 1992, Santiago's ALS had progressed to the point where he could not use his hands or stand without assistance. He had little or no use of most of his [205 Wis.2d 307] muscles. He had to be fed, bathed and cared for by others. By July 1992, his speech was badly impaired, making it difficult for others to understand him.

On June 18, 1992, Santiago had an argument with a cook at Plymouth Manor. The next day, the director of Plymouth Manor met with Jon Schubert, Santiago's probation and parole agent, and Schubert's supervisor, defendant Kathleen Ware. At the end of the meeting, the director decided Santiago would no longer reside at Plymouth Manor.

On June 20, 1992, Santiago was transferred to WCI, where he resided at the Health Services Unit. He remained in temporary lockup status pending investigation of the incident at Plymouth Manor.

On June 29, 1992, Schubert prepared a conduct report on the incident. He did not interview Santiago or the cook about their argument. 5 He did not personally [205 Wis.2d 308] determine the nursing home rules Santiago had violated. He relied on another correctional officer's recommendation for the charges he made against Santiago. The conduct report alleged that Santiago violated WIS.ADM.CODE §§ DOC 303.16 (threats), 303.28 (disruptive conduct), and 303.63 (violation of institution policies and procedures). The report did not

Page 361

specify the pertinent institution policies or procedures.

Serving as acting security director, Ware reviewed the conduct report. She incorrectly classified the offenses as major under WIS.ADM.CODE § DOC 303.68(3) without looking at that provision. WISCONSIN ADM.CODE § DOC 303.68(3) lists certain DOC rule violations as automatic major offenses. None of Santiago's charged violations fell into this category. 6

On July 1, 1992, Sergeant Alvin Krueger served Santiago with the conduct report and with the Notice of Major Disciplinary Hearing Rights Form. That form contains a section entitled "Waiver of Formal Due Process (Major) Hearing," to be completed by the inmate. When Krueger helped Santiago fill out the form, Krueger mistakenly marked a box in the middle of the form to indicate Santiago waived his right to a formal due process hearing. Santiago pointed out the mistake, and Krueger scratched it out. Krueger did not [205 Wis.2d 309] check a second box, located at the bottom of the form, that also would indicate waiver of a formal due process hearing.

On July 20, 1992, defendant Todd Zangl, a Division of Intensive Sanctions supervisor, held a hearing at WCI on the conduct report. Santiago had not been told that Zangl was coming to hold the hearing, and he had not been contacted by an advocate or prepared a defense. He had not been told which policy or procedure he was charged with violating under WIS.ADM.CODE § DOC 303.63.

Zangl conducted the hearing as a "waiver hearing" rather than a due process hearing. 7 Zangl did not carefully review Santiago's Waiver of Major Hearing Form, despite his responsibility to do so, and he missed the cross-out in the waiver box. No rule or regulation requires a hearing officer before holding a waiver hearing to speak with the inmate to verify that he has waived his due process rights. Because Zangl could not understand Santiago, he asked Holly Meier, a nurse at WCI, to translate. With her help, Santiago told Zangl he wanted a due process hearing, but Zangl continued with the waiver hearing.

At the conclusion of the hearing, Zangl found Santiago guilty of violating WIS.ADM.CODE §§ DOC 303.28 (disruptive conduct) and 303.63 (violation of [205 Wis.2d 310] institution policies and procedures) and not guilty of violating WIS.ADM.CODE § DOC 303.16 (threats). Zangl imposed a ten-day extension of Santiago's mandatory release date and referred him to the program review committee (PRC). 8 On July 21, 1992, the PRC terminated Santiago from CRC. The trial court

Page 362

found that as a result of referral to PRC, Santiago remained at WCI, in the hospital, until June 30, 1993. 9

Santiago appealed Zangl's determination to Dennis Danner, a Division of Intensive Sanctions supervisor. Santiago cited as ground for his appeal only [205 Wis.2d 311] that he was not guilty and Zangl had not considered his account of what happened. On September 1, 1992, Danner affirmed Zangl's decision. Danner found that Zangl considered Santiago's account of what happened before rendering his decision and that "Santiago's behavior [at Plymouth Manor] created a risk of serious disruption and risk of injury to another person."

On September 9, 1992, Santiago filed his complaint in circuit court. While that action was pending, Danner ordered a rehearing on Santiago's conduct report. Santiago received a due process hearing on February 8, 1993, before a new examiner, Daniel Benzer. Santiago had an advocate. Schubert was the only witness. Examiner Benzer found Santiago not guilty of violating WIS.ADM.CODE § DOC 303.63 (violation of institution policies and procedures) and guilty of violating WIS.ADM.CODE § DOC 303.28 (disruptive conduct). He imposed a ten-day extension of Santiago's mandatory release date, without a referral to the PRC.

II.

TRIAL COURT DECISIONS

Santiago's complaint alleged defendants had: (1) violated his right to due process under the Fourteenth Amendment of the United States Constitution and (2) negligently performed ministerial duties. 10 He requested compensatory and punitive damages for each day he spent out of the CRC program and for [205 Wis.2d 312] violation of his rights, and "[a]ll other and further relief deemed appropriate."

A. Pretrial Decisions

The parties filed numerous motions for summary judgment and reconsideration. We summarize the trial court's four written opinions on the motions.

1. Section 1983 Claim

The court ruled that Santiago's procedural due process rights were violated at the first conduct report hearing because he did not have a staff advocate or an adequate opportunity to prepare a defense. Santiago did not waive his § 1983 claims by failing to raise the waiver hearing issue in his administrative appeal before Danner. Santiago had been denied substantive due process because insufficient evidence existed on which to find him guilty. The rehearing in February 1993 was "an incomplete cure" for the constitutional deprivations Santiago sustained in the first hearing.

The court held Santiago's intent not to waive a full due process hearing was undisputed but that a factual dispute existed whether his attempt to communicate that intent to Zangl was effective.

The court held that Zangl was not entitled to qualified immunity from suit on Santiago's claim that Zangl had violated his procedural and substantive due process rights. The court ruled that Zangl unreasonably held the hearing if he knew Santiago had not waived his due process rights. If the fact-finder found at trial that...

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48 practice notes
  • Jackson v. Buchler, No. 2006AP948.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 14, 2010
    ...evidence to support the adjustment committee's determination that, more likely than not, he incited the riot.20 See Santiago v. Ware, 205 Wis.2d 295, 337, 556 N.W.2d 356 (Ct.App.1996). The question is "whether reasonable minds could arrive at the same conclusion reached by" the adjustment c......
  • State ex rel. L'Minggio v. Gamble, No. 01-0535.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2003
    ...decision and remit the punishment imposed. See, e.g., Irby v. Macht, 184 Wis. 2d 831, 847-48, 522 N.W.2d 9 (1994); Santiago v. Ware, 205 Wis. 2d 295, 337-38, 556 N.W.2d 356 (Ct. App. [16] ¶ 25. Accordingly, since L'Minggio has an adequate remedy via a writ of certiorari and since prison dis......
  • Jackson v. Pollard, 11-cv-737-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • December 22, 2014
    ...inmate has a protected liberty interest in his earned good-time credit, which is authorized by state statute. Santiago v. Wire, 205 Wis. 2d 295, 318, 556 N.W.2d 356 (Ct. App. 1996). Thus, Wisconsin prisoners such as Jackson have the right to due process in disciplinary actions that result i......
  • State ex rel. Ortega v. McCaughtry, No. 97-2972
    • United States
    • Court of Appeals of Wisconsin
    • August 6, 1998
    ...of the evidence before the adjustment committee to support a finding of guilt. The trial court, citing our decision in Santiago v. Ware, 205 Wis.2d 295, 327-28, 556 N.W.2d 356, 368-69 (Ct.App.1996), review denied, 207 Wis.2d 284, 560 N.W.2d 273 (1996), and cert. denied, --- U.S. ----, 117 S......
  • Request a trial to view additional results
48 cases
  • Jackson v. Buchler, No. 2006AP948.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 14, 2010
    ...evidence to support the adjustment committee's determination that, more likely than not, he incited the riot.20 See Santiago v. Ware, 205 Wis.2d 295, 337, 556 N.W.2d 356 (Ct.App.1996). The question is "whether reasonable minds could arrive at the same conclusion reached by" the adjustment c......
  • State ex rel. L'Minggio v. Gamble, No. 01-0535.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2003
    ...decision and remit the punishment imposed. See, e.g., Irby v. Macht, 184 Wis. 2d 831, 847-48, 522 N.W.2d 9 (1994); Santiago v. Ware, 205 Wis. 2d 295, 337-38, 556 N.W.2d 356 (Ct. App. [16] ¶ 25. Accordingly, since L'Minggio has an adequate remedy via a writ of certiorari and since prison dis......
  • Jackson v. Pollard, 11-cv-737-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • December 22, 2014
    ...inmate has a protected liberty interest in his earned good-time credit, which is authorized by state statute. Santiago v. Wire, 205 Wis. 2d 295, 318, 556 N.W.2d 356 (Ct. App. 1996). Thus, Wisconsin prisoners such as Jackson have the right to due process in disciplinary actions that result i......
  • State ex rel. Ortega v. McCaughtry, No. 97-2972
    • United States
    • Court of Appeals of Wisconsin
    • August 6, 1998
    ...of the evidence before the adjustment committee to support a finding of guilt. The trial court, citing our decision in Santiago v. Ware, 205 Wis.2d 295, 327-28, 556 N.W.2d 356, 368-69 (Ct.App.1996), review denied, 207 Wis.2d 284, 560 N.W.2d 273 (1996), and cert. denied, --- U.S. ----, 117 S......
  • Request a trial to view additional results

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