Wesley v. Nickels, 91-1067

• Court: Wisconsin Court of Appeals
• Writing for the Court: Before WILLIAM EICH, C.J., GARTZKE, P.J., and SUNDBY; WILLIAM EICH; SUNDBY
• Citation: Wesley v. Nickels, 482 N.W.2d 669, 167 Wis.2d 487 (Wis. App. 1992)
• Decision Date: 20 February 1992
• Docket Number: No. 91-1067,91-1067
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Battites WESLEY, and Tayr Kilaab al Ghashiyah (Kahn), Plaintiffs-Appellants, v. Thomas NICKELS, Thomas Bornick, Danielle Meekham, Leo Baldus, and Daniel Wethal, Defendants-Respondents.

Page 669

482 N.W.2d 669

167 Wis.2d 487

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Battites WESLEY, and Tayr Kilaab al Ghashiyah (Kahn) Plaintiffs-Appellants, v. Thomas NICKELS, Thomas Bornick, Danielle Meekham, Leo Baldus, and Daniel Wethal, Defendants-Respondents.

No. 91-1067.

Court of Appeals of Wisconsin.

Feb. 20, 1992. ^*

Appeal from a judgment of the circuit court for Dodge county: Joseph E. Schultz, Judge.

Circuit Court, Dodge County

AFFIRMED.

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

WILLIAM EICH, Chief Judge

Battites Wesley and Tayr Kilaab al Ghashiyah, inmates at the Waupun Correctional Institution, appeal from a summary judgment dismissing their action against several correctional officers who had issued several conduct reports against them, charging violation of various prison rules. When the reports were eventually dismissed by a prison administrative tribunal, Wesley and Kilaab sued, claiming that the officers "maliciously" filed the conduct reports "kn[owing them] to be false and untrue," and that this was done with the intent "to deprive the [inmates] of their liberty." ¹

The trial court construed their claim as one for abuse of process and granted the officers' motion for summary judgment dismissing the complaint. We affirm.

In reviewing summary judgments, we employ the same analysis as does the trial court. Spring Green Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Generally, the remedy is appropriate where there are no issues of material fact and the moving party is entitled to judgment as a matter of law. In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct.App.1983).

There is a summary judgment "methodology," the first step of which looks to the complaint to determine whether it states a claim upon which relief may be granted. C.L. v. Olson, 143 Wis.2d 701, 706, 422 N.W.2d 614, 615 (1988). If the complaint states a claim, and if the answer joins the issues, we then look to the moving party's affidavits and other proofs to determine whether that party has made a prima facie case for summary judgment--in this case, a prima facie defense to the action. State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 511, 383 N.W.2d 916, 917-18 (Ct.App.1986). If the moving party's proofs meet that test, we then consider the opposing party's affidavits for evidentiary facts to determine whether a genuine issue exists as to any material fact--or whether reasonable conflicting inferences may be drawn from the undisputed facts. If there are conflicting facts or inferences, a trial is necessary and summary judgment is inappropriate. If not, the legal issues are appropriate for determination on summary judgment. ² Id. at 511-12, 383 N.W.2d at 918.

We apply that analysis to the two theories of relief advanced by Wesley and Kilaab. As indicated, the trial court construed their complaint as alleging a single claim for abuse of process, and they claim on appeal that this was error. Alternatively, they contend that the complaint states a claim never considered by the trial court: a "constitutional" claim that the officers' actions have "interfere[d] with [their] right of meaningful access to the courts"--one they suggest is "a civil rights claim cognizable under 42 U.S.C. § 1983." ³ Paring appellants' assertions down to their essentials, we read their argument as one that the officers issued the conduct reports in retaliation for the inmates' activities in pursuing grievances against the prison, its administrators and employees, on several fronts in the past.

Finally, the state, inferring from the inmates' brief that they are also claiming their complaint states a cause of action for malicious prosecution, argues the point at some length. While we find no mention of "malicious prosecution" in the inmates' brief, and no reference to the cases discussing the elements of such a claim, we will address it.

As indicated, the first step in the summary judgment analysis is to test the legal sufficiency of the complaint. When we do so, we pursue the same inquiry used on a motion to dismiss the complaint for failure to state a claim. Prah v. Maretti, 108 Wis.2d 223, 228, 321 N.W.2d 182, 185 (1982). We accept as true all properly-pleaded facts and the inferences arising therefrom, and we construe the document liberally to do substantial justice between the parties. Id. at 229, 321 N.W.2d at 186; Strid v. Converse, 111 Wis.2d 418, 422, 331 N.W.2d 350, 353 (1983). And we will not dismiss a complaint as legally insufficient unless it appears that no relief can be granted under any set of facts that the plaintiffs can prove in support of their allegations. Id. at 422, 331 N.W.2d at 353.

It is not a hypertechnical analysis. "A plaintiff is not required to put labels on the allegations in the complaint in order to state a valid claim. It is the sufficiency of the facts alleged that control the determination of whether a claim for relief is properly pl[e]d." Strid, 111 Wis.2d at 422-23, 331 N.W.2d at 353.

[A] cause of action is not constituted by labeling the operative facts with the name of a legal theory. The operative facts themselves, if they show the invasion of a protected right, constitute the cause of action. What they are called is immaterial. If the facts reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action. Id. at 423, 331 N.W.2d at 353 [citation omitted].

With those rules in mind, we consider each of appellants' theories of relief in turn.

Abuse of Process

Abuse of process and malicious prosecution are related. As will be discussed below, the latter remedy exists when the plaintiff has been injured by a prior legal action commenced against him/her by the defendant, and where that action was commenced or maintained maliciously and without probable cause and was unsuccessful. The tort of abuse of process, on the other hand, is designed to provide a remedy in situations where a malicious prosecution action is inadequate because the prior action was "set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed." Brownsell v. Klawitter, 102 Wis.2d 108, 113, 306 N.W.2d 41, 44 (1981) (citation omitted).

A cause of action for abuse of process is stated if two requirements are satisfied. First, there must be "a willful act in the use of process not proper in the regular conduct of the proceedings" and, second, there must be an "ulterior motive." Brownsell, 102 Wis.2d at 115, 306 N.W.2d at 45. "In order to establish the first of these elements, the evidence must reflect more than the proper use of process with a bad motive." Pronger v. Odell, 127 Wis.2d 292, 297, 379 N.W.2d 330, 332 (1985). The plaintiff must allege and prove "that something was done under the process which was not warranted by its terms." Id. The existence of an improper purpose must culminate in an actual misuse of the process to obtain some ulterior advantage. Thompson v. Beecham, 72 Wis.2d 356, 363, 241 N.W.2d 163, 166 (1976). "[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Id. at 362, 241 N.W.2d at 166.

There is no suggestion in the inmates' complaint that the process--the prison disciplinary process outlined in Wis.Adm.Code sec. DOC 303.66--was misused. The matter proceeded, as stated in the rule, from conduct report to hearing and decision, and Wesley and Kilaab do not allege otherwise. Nor does the complaint suggest the presence of a "definite act or threat not ... authorized by the process." Thompson, 72 Wis.2d at 364, 241 N.W.2d at 167.

While it is true that pro se complaints are to be liberally construed, Caldwell v. Miller, 790 F.2d 589, 595 (7th Cir.1986), all Wesley and Kilaab allege is that the guards falsely based the conduct reports on nonexistent facts. It is a claim not that the process itself was abused, but simply that it was used for improper purposes. And, as indicated, "[i]n order to maintain an action for abuse of process, the process must be used for something more than a proper use with a bad motive." Thompson, 72 Wis.2d at 263, 241 N.W.2d at 166; see also Novick v. Becker, 4 Wis.2d 432, 435-36, 90 N.W.2d 620, 621-22 (1958).

Retaliation

As indicated, Wesley and Kilaab argue that their complaint must be read to state a claim for retaliation under 42 U.S.C. § 1983. ⁴ Here, too, we conclude that it does not.

We find no reference in the complaint to any past activities by the inmates for which the officers would have retaliated against them. While it alleges that the defendants filed false conduct reports against the plaintiffs, it fails to allege any facts from which we may conclude or infer that they did so in order to retaliate for the inmates' past activities.

We acknowledge that the affidavits submitted by Wesley and Kilaab in opposition to the motion do discuss retaliation. But summary judgment procedures do not permit them to rely on a theory not pleaded in their complaint. Omernik v. Bushman, 151 Wis.2d 299, 304, 444 N.W.2d 409, 412 (Ct.App.1989). Only if a claim has been stated in the complaint do we proceed to consider the parties' affidavits and other proofs. C.L., 143 Wis.2d at 706, 422 N.W.2d at 615.

Malicious Prosecution

A claim for malicious prosecution is stated where there has been (a) a former judicial proceeding against the plaintiff (b) instituted or continued by the defendant (c) maliciously and (d) without probable cause, and where the former action has (e) caused injury or damage to the plaintiff and (f) was terminated in the plaintiff's favor. Strid, 111 Wis.2d at 423, 331 N.W.2d at 353-54. The absence of any one of...