Shaw v. Wall

• Decision Date: 30 September 2014
• Docket Number: 12-cv-497-wmc
• Court: U.S. District Court — Western District of Wisconsin
• Parties: TERRANCE J. SHAW, Plaintiff, v. EDWARD WALL et al., Defendants.

TERRANCE J. SHAW, Plaintiff, v. EDWARD WALL et al., Defendants.

12-cv-497-wmc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

September 30, 2014

OPINION & ORDER

In this civil action, plaintiffTerrance J. Shaw brings claims against various staff members at the Oshkosh Correctional Institution ("OSCI"), alleging violation of his First and Fourteenth Amendment rights, as well as disability discrimination in violation of the Rehabilitation Act,29 U.S.C. § 701 et seq.Shaw has moved for partial summary judgment on his claims that: (1)defendantsMatthew Jones and Debby Loker violated his First Amendment rights by refusing his request to donate to a political party; and (2)defendants Jones and Edward Wall violated the Rehabilitation Act by requiring Shaw to attend canteen after able-bodied inmates, when necessities were frequently sold out.(Dkt. #31.)Defendants have, in turn, moved for summary judgment on all but one of Shaw's claims.¹(Dkt. #42.)The court grants defendants' motion with respect to Shaw's First Amendment retaliation and freedom of speech claims, and denies Shaw's motion with respect to the latter.However, it will deny both parties' motions for summary judgment with respect to the Rehabilitation Act claim, because factual disputes preclude resolving that claim at this time.

UNDISPUTED FACTS

I.Background

PlaintiffTerrence Shaw is a State of Wisconsin Department of Corrections("DOC") inmate currently incarcerated at OSCI, where he has been since April 23, 2004.Defendants concede for purposes of summary judgment that Shaw has a number of disabilities that limit his life activities, including his ability to work.Specifically, on October 6, 2011, Shaw was diagnosed with a mild inferior wall ischemia, a condition in which the heart's oxygen supply is decreased due to deficient blood flow to the heart muscle.²On November 29, 2011, arthritis was added to Shaw's "problem list," and by September 13, 2012, Shaw's range of motion in his hands was at 50% for his left hand and 30% for his right.³A psychiatric report dated January 2, 2014, indicates that Shaw also has a history of chronic post-traumatic stress disorder.

Defendants are all DOC employees at OSCI in various capacities.DefendantMatthew Jones is a Corrections Unit Supervisor (Unit Manager) at OSCI and worked as Unit Manager of OSCI's "W Building" from approximately July of 2010 until July of 2011.DefendantJimmy Messing is a Social Worker - Senior at OSCI and has been employed there since May 15, 1994.DefendantDebby Loker was a Corrections Unit Supervisor (Unit Manager) from November 7, 2010, until her retirement on March 1, 2013.Before that, she was OSCI's Human Resource Director.

W Building houses inmates in the general population, as well as those serving disciplinary sanctions.Shaw, along with about 163 other inmates, is housed in WBuilding's general population.W Building has "wet cells," meaning that inmates have personal toilets in their cells.Toilet paper is made available as needed on the unit at no cost to inmates; the same is true of soap, toothbrushes and toothpaste, although some inmates prefer to purchase particular brands from OSCI's canteen.

II.Canteen Access

A.General Canteen Procedures

OSCI maintains a canteen accessible to inmates, which facilitates the purchase of approved property.In W Building, the canteen is available to the general population on alternating Thursdays.Items for canteen arrive from a warehouse every morning and at noon.It is open during normal business hours, starting after the morning truck is unloaded at 8:30 a.m., except for a lunch break around noon to restock the supply for the afternoon.Inmates are allowed to spend a maximum of $75.00 every two weeks in the canteen.

The canteen usually offers more than one brand or variety of a particular item, especially if the item is popular.While the items featured are periodically updated to reflect changes in vendor supply and inmate requests, there have always been at least a few varieties offered for those items that are popular or considered essentials.For example, the canteen currently offers five different varieties of toothpaste, six different varieties of soap, two varieties of laundry soap and two types of cough drops -- regular Hall's brand and cherry-flavored, generic cough drops.⁴In contrast, nasal spray, a less popular item, is available in just one brand, but is usually in stock when an inmate requests it, because it is less popular and inmates may only purchase one at a time.

While items in the canteen rarely run out, there is a chance that a particular item may run low or out of stock.Defendants contend that should an item be out of stock, there is almost always another brand, flavor or variety of the same item type available; Shaw avers that on certain occasions when he attended canteen, there were no cough drops, laundry soap, nasal spray, antibacterial bar soap or floss picks available.When an item is out of stock, a note is posted on the canteen door so inmates may change their order form.Inmates may also change their order form at the register if an item they originally requested is out of stock.

Generally, to visit the canteen, inmates must sign up on sheets posted at the officer's station on the Wednesday afternoon before a canteen day.On the appointed day, canteen staff members notify the eligible unit to send approximately ten to twelve inmates.When they arrive, eight inmates are allowed in the canteen at any given time, while the rest wait in the hallway outside until it is their turn.As the line lessens, canteen staff call the unit to send another group.The number of groups called depends on how many inmates sign up for canteen on a given day.Typically, approximately ten to fifteen groups from W Building attend canteen during normal business hours.Regardless, the process continues until all inmates who have signed up have been able to go to canteen.

Usually, inmates with jobs or school obligations visit the canteen in the first group of the day, since their schedules require them to be at certain places at certain times.In contrast, inmates who do not work usually are allowed to attend the canteen in later groups, since they have more open schedules and thus more flexibility.

B. Shaw's Work Classification

When first entering a DOC institution, an inmate receives a medical evaluation to determine what restrictions or special needs he may have.A registered nurse reviews this medical classification information and notes it for a provider's review as part of the intake process.Pursuant to this procedure, Shaw has been classified since August 24, 1988, as having a "Light Activity" physical activity level, meaning that he is restricted from work assignments requiring steadily-paced activity and may only work jobs in which he is permitted to work at his own pace.⁵Under this classification, Shaw is technically cleared to hold numerous job placements, including librarian, tutor, worm food collector, knitting, window washer, laundry folder, unit duster, vermiculture, sweeper, light gardening, food preparation, food server and clerical work.

Despite his "Light Activity" classification, Shaw does not have a job and is on "unassigned" status.Shaw maintains that his disabilities have rendered him unable to work and resulted in his "unassigned" classification, while defendants argue that Shaw is "unassigned" because he has not asked to work.Indeed, it is undisputed that Shaw has made no inquiries or requests to seek out employment at OSCI.On this basis, defendants contend that Shaw's decision not to work is voluntary, while Shaw avers that he is willing to accept any job assignment consistent with his disabilities but has not been offered such a job.

C. Shaw's Use of the Canteen

Because of his "unassigned" status, Shaw is not among those allowed in the canteen in the first group.Although the record does not make clear when his group attends in the context of all ten to fifteen W Building groups who attend canteen, Shaw avers that he attends canteen with the last "unassigned" group of inmates.Defendants maintain that even if he is in the last "unassigned" group of inmates, Shaw attends canteen in the first half of the W Building groups overall, and that at least half of the W Building inmates who attend canteen go after Shaw's group.⁶

From June 10, 2010, through May 26, 2011, Shaw spent a total of $1,994.75 in the canteen.During that period, he purchased laundry soap (on four separate occasions); sixteen body soap products (on ten separate occasions); toilet paper; toothpaste; nasal spray (on two separate occasions); and cough drops.

D.Complaints and Communication with Disability Rights of Wisconsin

Before December of 2010, Shaw repeatedly complained to defendant Jones that he was suffering disability-based discrimination, because he could not attend canteen until after inmates who work.Jones told Shaw in response that his canteen attendance time had nothing to do with his disabilities and that he was not suffering discrimination.⁷

On December 13, 2010, defendant Jones received a letter from Attorney Michele Hughes of Disability Rights of Wisconsin.In the letter, Hughes explained that she was writing on Shaw's behalf, based on an understanding that he is required to attend canteenlast because of his disabilities.Hughes explained that Shaw is a qualified individual protected by the ADA, based on statements that he would like to work but is unable due to his disability.Hughes further explained that the ADA prohibits prison officials from discriminating against a qualified individual with a disability, meaning Shaw's denial of meaningful access to canteen services violated the ADA and the rehabilitation Act.Jones did not respond to the letter.Instead, he forwarded it to the OSCI ADA coordinator.

On May 27, 2011, Shaw filed Offender ComplaintOSCI-2011-10477, alleging that a "two-tier"...