West v. Frank

• Decision Date: 27 June 2007
• Docket Number: No. 06-C-269-C.,06-C-269-C.
• Citation: 492 F.Supp.2d 1040
• Parties: William F. WEST, Plaintiff, v. Matthew FRANK, Richard Schneiter, Gerald Berge, Vicki Sebastian, Bradley Aspenson, Timothy Laxton And Leonard Johnson<SMALL><SUP>1</SUP></SMALL>, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

492 F.Supp.2d 1040

William F. WEST, Plaintiff, v. Matthew FRANK, Richard Schneiter, Gerald Berge, Vicki Sebastian, Bradley Aspenson, Timothy Laxton And Leonard Johnson¹, Defendants.

No. 06-C-269-C.

United States District Court, W.D. Wisconsin.

June 27, 2007.

William F. West, Oshkosh Correctional Institution Oshkosh, WI, for Plaintiffs.

Ma. Manee Moua, Assistant Attorney General, Wisconsin Dept. of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Plaintiff William West, a prisoner, wanted to stay abreast of the nation's current events while he was incarcerated. To accomplish this, he subscribed to USA Today using his own funds. Some might be surprised to learn that prison authorities at the Wisconsin Secure Program Facility (where plaintiff was incarcerated) did not approve of plaintiff's efforts to stay informed. Instead, they refused to deliver the newspaper, citing a prison policy that prohibited prisoners from receiving publications in the mail so long as the prisoners were on "Level 1" or "Level 2" of the prison's behavior modification program.

In response, plaintiff filed this lawsuit under 42 U.S.C. § 1983, contending that the prison's publication ban violated his rights under the First Amendment. He seeks both monetary and injunctive relief. In addition, plaintiff contends that defendants violated his right to equal protection by throwing out his newspapers instead of saving them as they did for other prisoners. (Plaintiff brought other claims in his complaint, but I dismissed these when I performed the screening of his complaint required under 28 U.S.C. §§ 1915 and 1915A.)

Defendants have moved for summary judgment on both of plaintiff's claims. With respect to plaintiff's First Amendment claim, I conclude that defendants Matthew Frank and Vikki Sebastian may not be held liable because they had no involvement in the adoption or implementation of the publication ban. Nanda v. Moss, 412 F.3d 836 (7th Cir.2005). With respect to the remaining defendants, although I find the publication ban to be constitutionally dubious, plaintiff's damages claim is barred by the doctrine of qualified immunity because of the great uncertainty in the law regarding prison restrictions justified by a behavior modification theory. Further, plaintiff's request for injunctive relief is moot because the policy at issue has been abandoned and because plaintiff has been transferred from the only Wisconsin prison that banned newspapers.

In addition, I conclude that plaintiff's equal protection claim must fail because plaintiff has failed to adduce any evidence that he was treated differently from other prisoners or that any differential treatment he received was intentional. Accordingly, I will grant defendants' motion for summary judgment.

Before setting forth the undisputed facts, I make one observation about the parties' proposed findings of fact. Each time plaintiff disputed any of defendants' proposed facts, defendants gave the following response:

A specific response to defendants' proposed findings of fact is required by the Court's "Procedure to be followed on motions for summary judgment" (hereinafter Court Procedure). The plaintiff does not sufficiently dispute defendants' proposed finding of fact. Therefore, pursuant to Fed.R.Civ.P. 56(e) and Court Procedure II D and E, plaintiffs' response to defendants proposed findings must be disregarded and/or stricken from the record, and this proposed finding must be deemed undisputed.

The meaning of defendants' ongoing objection is not clear. Do defendants mean that plaintiff failed to set forth "specific facts" as required by Fed.R.Civ.P. 56 or do they mean that plaintiffs response was not directly responsive to their proposed fact? Although defendants repeat this objection numerous times, they never elaborate further or explain how the objection applies to a particular response provided by plaintiff. In any event, they raised the objection in a number of instances in which it was obviously inappropriate to do so.

For example, in defendants' proposed findings of fact nos. 42 and 43, defendants state that defendant Laxton does not "recall" throwing out plaintiff's newspapers but that Laxton "would have" put any newspapers that he received for plaintiff in the property room. Plaintiff disputed this fact by saying that he personally observed defendant Laxton throwing out his newspaper, citing his own affidavit. This response was both sufficiently specific to satisfy Rule 56 and directly responsive to defendants' proposed fact. In fact, it was defendants' proposed fact that came up short because a statement by a witness that he "does not recall" a particular event happening is not enough to place in to dispute another witness's testimony that it did happen. Tinder v. Pinkerton Security, 305 F.3d 728, 735-36 (7th Cir.2002). In any event, I anticipate that in the future, counsel will consider more thoughtfully whether an objection is appropriate with respect to a particular response.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

Plaintiff William West was a prisoner at the Kettle Moraine Correctional Institution in Plymouth, Wisconsin from January 17, 2002, until September 24, 2002. In August 2002, plaintiff purchased a 13-week subscription for USA Today, a national daily newspaper, which plaintiff was permitted to receive at the Kettle Moraine prison.

On September 24, 2002, plaintiff was transferred to the Wisconsin Secure Program Facility in Boscobel, Wisconsin, where he stayed until February 2005. On September 26, 2002 a copy of USA Today addressed to plaintiff was delivered to the Boscobel prison. At the time, a prison policy called "Procedure Number 300, Subject: Level System Program" prohibited prisoners on Level 1 or Level 2 of the prison's behavior modification program from receiving publications, including newspapers and magazines. The policy was developed specifically for the Wisconsin Secure Program Facility. However, another policy gave prisoners the option of mailing out property that was not allowed or giving the property to one of the prisoner's visitors. Defendants Gerald Berge and Richard Schneiter, who were wardens of the Wisconsin Secure Program Facility while plaintiff was incarcerated there, were responsible for implementing the prison's policies.

In 2002, the secure program facility was intended to house Wisconsin prisoners with "serious behavioral problems." Some prisoners at the facility were serving long periods of disciplinary segregation as a consequence of their unwillingness to comply with prison rules. Others were administratively transferred there in response to assaultive conduct, gang activities or escape histories. Prisoners were placed in a "level system," a behavior modification program under which they were required "to earn their way out of a highly secured environment."

Prisoners began on Level 1, a very restrictive classification with few privileges. These were restricted to "limited" canteen and library access; one ten-minute telephone call a month, five hours of "leisure time activity" a week and "visiting as established by the DOC Administrative Code." Level 1 prisoners received no programming and were housed in isolated confinement.

A prisoner in the level system could advance to the next level and obtain greater privileges when prison authorities determined that the prisoner had sufficiently "demonstrated improvements in attitudes and behavior." The decision to "promote" a prisoner was made by the unit manager and unit team and was "highly individualized" for each prisoner. The reviewing team members were "allowed to exercise their discretion in applying the level system." The purpose of this system was to "provide incentives for appropriate behavior."

As of September 26, 2002, plaintiff was on Level 1. When the newspaper arrived at the prison, defendant Bradley Aspenson, a correctional officer working on plaintiff's cell block, told plaintiff that he could not receive any publications until he reached Level 3.

Plaintiff moved to Level 2 in October 2002. On October 30, 2002, after another copy of USA Today arrived at the prison for plaintiff, defendant Leonard Johnson, a correctional officer, told plaintiff that he could not have the newspaper. Johnson put the newspaper in the garbage, mistakenly believing that was the appropriate course of action under prison policy.

Defendant Timothy Laxton was a correctional officer assigned to plaintiffs housing area in September and October 2002. Plaintiff saw Laxton throw out a copy of his USA Today.

Defendants Matthew Frank and Vikki Sebastian had no involvement in the enactment or implementation of Procedure Number 300.

In 2005, the level system was abandoned. Currently, all prisoners at the Secure Program Facility are allowed to have newspapers and other publications.

Plaintiff is now incarcerated at the Oshkosh Correctional Institution in Oshkosh, Wisconsin.

OPINION

A. First Amendment: Publication Ban

The right to be informed is one of the cornerstones of the First Amendment. As the Supreme Court has recognized many times, an informed and engaged citizenry is essential for a vital and robust democracy. Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) ("speech concerning public affairs is more than self-expression; it is the essence of self-government"); Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936) ("informed public opinion is the most potent of all restraints upon misgovernment"). When a person is denied this right, he is "shut ... out of the marketplace of ideas and opinions that it is the purpose of the free-speech clause to protect." King v. Federal Bureau of Prisons, 415 F.3d 634, 638 (7th Cir.2005) (Posner, J.). In fact, it is difficult to think of many situations more...