Wilson v. Watters

• Decision Date: 10 December 2004
• Docket Number: No. 04-C-776-C.,04-C-776-C.
• Citation: 348 F.Supp.2d 1031
• Parties: Michael Lee WILSON, Petitioner, v. Steve WATTERS, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

348 F.Supp.2d 1031

Michael Lee WILSON, Petitioner, v. Steve WATTERS, Respondent.

No. 04-C-776-C.

United States District Court, W.D. Wisconsin.

December 10, 2004.

Michael L. Wilson, pro se.

Charles D. Hoornstra, Assistant Attorney General, Madison, WI, for Defendant.

ORDER

CRABB, District Judge.

This is a proposed civil action for monetary and injunctive relief, brought under 42 U.S.C. § 1983. Petitioner Michael Lee Wilson is presently confined at the Wisconsin Resource Center as a patient pursuant to Wisconsin's Sexually Violent Persons Law, Wis. Stat. ch. 980. He seeks leave to proceed without prepayment of fees and costs or providing security for such fees and costs, pursuant to 28 U.S.C. § 1915. From the affidavit of indigency accompanying petitioner's proposed complaint, I conclude that petitioner is unable to prepay the full fees and costs of instituting this lawsuit. Because he is a patient and not a prisoner, petitioner is not subject to the 1996 Prison Litigation Reform Act.

In addressing any pro se litigant's complaint, the court must construe the complaint liberally. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, pursuant to 28 U.S.C. § 1915(e)(2), if a litigant is requesting leave to proceed in forma pauperis, the court must deny leave to proceed if the action is frivolous or malicious, fails to state a claim on which relief may be granted or seeks money damages from a defendant who is immune from such relief.

In his complaint, petitioner alleges the following facts.

ALLEGATIONS OF FACT

Petitioner Michael Lee Wilson is presently confined at the Wisconsin Resource Center as a patient pursuant to Wisconsin's Sexually Violent Persons Law, Wis. Stat. ch. 980. Prior to July 15, 2003, he had been confined at the Sand Ridge Secure Treatment Center in Mauston, Wisconsin. Defendant Steve Watters is the director of the Sand Ridge facility.

While petitioner was incarcerated at the Sand Ridge facility, he was enrolled in the Sand Ridge conventional treatment track program which was commonly referred to as the "Core" program. On May 13, 2002, petitioner was called into the office of Doug Belial, a manager of one of Sand Ridge's medium security units, where Belial told petitioner that he was being transferred to to High Management/Initial Unit AA (presumably from Belial's unit). The decision to transfer petitioner was made by the Sand Ridge treatment center clinical director, Dr. David Thorton, for the sole reason that petitioner had refused to take a polygraph examination. Petitioner had received a memo (presumably from an employee at the Sand Ridge center), indicating that refusing a polygraph exam would "NOT BE A GENERAL REFUSAL OF TREATMENT."

After petitioner was transferred to the High Management/Initial Unit, he was subjected to a more restrictive work policy, an earlier curfew and increased security restrictions. On May 18, 2002, petitioner and other similarly situated patients filed complaints about not receiving a hearing before they were transferred to a more restrictive unit. The Sand Ridge official stance was that these patients had opted out of treatment. During the grievance process, petitioner argued that he had not refused treatment and did not wish to refuse treatment. Linda Alsum-O'Donovan and respondent denied the complaints. Their decisions "boiled down" to denying petitioner treatment and placing him on a more secure unit.

On June 3, 2002, one of the Sand Ridge social workers, Ms. Wheeland, gave petitioner an "individualized treatment opportunity" which was designed to change petitioner's mind about submitting to a polygraph test. Petitioner refused to participate in the treatment session or sign a treatment form. On July 10, 2002, Wheeland again tried to hold an individualized treatment session with petitioner. This time, no mention of petitioner's refusal to take a polygraph examination was made. Petitioner provided Wheeland and the Sand Ridge clinical staff a written explanation of his reasons for refusing to participate in this second treatment session and reiterated that he was not refusing treatment.

Approximately six months after being transferred to the high management unit, petitioner attended a staffing meeting at which patients and staff discuss treatment planning. The Sand Ridge treatment staff, including Steve Hamilton, a unit manager, informed petitioner that committees who scored above a twenty-five on a psychopathy test were eligible to be treated through the facility's "Corrective Thinking Program." The cut-off minimum score had just been lowered from thirty. Because petitioner's psychopathy score was a twenty-nine and because he had been having trouble in the Core program, the treatment team recommended that he be placed in the Corrective Thinking Program.. Petitioner rejected this recommendation, arguing that the only problems he was having in the Core program stemmed from his refusal to take a polygraph examination.

On July 15, 2003, petitioner was transferred to the Wisconsin Resource Center. He was not given a hearing before the transfer. Petitioner has fewer freedoms and privileges at the resource center than he had at the Sand Ridge facility. At the Wisconsin Resource Center, petitioner is not allowed to use as many electronic devices, he is charged higher canteen prices, made to wear prison clothing when visiting with friends and family, offered fewer recreational opportunities, and has less furniture and fewer electrical outlets in his cell than he had at Sand Ridge. Sex offender treatment is not offered to civil patients at the Wisconsin Resource Center.

Shortly after arriving at the Wisconsin Resource Center, petitioner began rethinking his position and came to the conclusion that he would rather be taking the corrective thinking program at Sand Ridge, even though it was inappropriate for him, than be housed at the Wisconsin Resource Center. Petitioner began negotiations with Scott Trippe, a psychologist at the resource center, attempting to arrange a return to Sand Ridge. Petitioner signed a new consent to treatment form and took several tests. Trippe told petitioner that several calls would have to be made to Sand Ridge before petitioner could be returned there.

Petitioner was presented with a new individualized treatment opportunity form, listing requirements necessary for his reinstatement in treatment program. The first three of these requirements were things petitioner had already done when he was still in the Core program. Requirements three through seven were designed to make petitioner prove he had the motivation and self-control that the Sand Ridge treatment staff thought was necessary for his participation in a treatment program. In addition, the Sand Ridge treatment staff expected petitioner to encourage other participants to participate appropriately and to generally be a role model. Petitioner was informed that the reason for these requirements was because he had interfered with other patients' treatment. Petitioner had not interfered with any other patient's treatment and he refused to participate in these individualized treatment opportunity requirements. Other patients were not made to meet these same requirements before receiving treatment. Petitioner remains at the Wisconsin Resource Center with no hope of receiving treatment, release or less restrictive confinement for the sole reason that he refused to take a polygraph examination.

DISCUSSION

A. Due Process

Unlike criminally confined offenders, who may be subject to punishment as long as it is not cruel and unusual under the Eighth Amendment, persons civilly confined (including those confined under ch. 980) may not be punished. Youngberg v. Romeo, 457 U.S. 307, 320, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Punishment of civilly confined patients violates their substantive due process rights under the Fourteenth Amendment. Id. However, ch. 980 patients "may be subjected to conditions that advance goals such as preventing escape and assuring the safety of others." Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir.2003). The question is whether the conditions petitioner complains of are punitive.

In examining whether conditions of civil confinement are punitive, "courts must show deference to the judgment exercised by the qualified professional." Youngberg, 457 U.S. at 321, 102 S.Ct. 2452. Professional decision makers include persons "competent, whether by education, training, or experience, to make the particular decision at issue." Id. at 323 n. 30, 102 S.Ct. 2452. Decisions made by such professionals are "presumptively valid." Id. at 323, 102 S.Ct. 2452; see also Barichello v. McDonald, 98 F.3d 948 (7th Cir.1996); Estate of Cole v. Fromm, 94 F.3d 254 (7th Cir.1996) (applying same standard to pretrial detainee committed to psychiatric ward).

Liability arises when the decision by the professional is such a departure from accepted professional judgment, practice or standards that it demonstrates that the person responsible did not base the decision on such judgment. However, even when the professional's decision deviates this far from accepted practice, liability will not lie if the decision was based on budgetary constraints; in such a situation, good faith immunity would bar liability. Youngberg, 457 U.S. at 320, 102 S.Ct. 2452.

I understand petitioner to allege that his due process rights were violated because he was a participant in a treatment program in which polygraph examinations are used, the alternative treatment program he was offered was inadequate and his placement in a more restrictive environment constitutes punishment. Before turning to the merits of petitioner's claims, I must address petitioner's failure to sue the appropriate party.

1. Personal Involvement

Petitioner has failed to allege any conduct on the part of respondent Watters except that he denied petitioner's grievance regarding his removal from the Core...