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Jones v. Russell

United States District Court, W.D. Wisconsin

December 9, 2015

JOEVAL JONES, Plaintiff,

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          Joeval Jones, Plaintiff, Pro se, Waupun, WI.

         For C.O. Russell, Captain O'Donovan, Defendants: Corey Francis Finkelmeyer, LEAD ATTORNEY, Wisconsin Department of Justice, Madison, WI.

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         BARBARA B. CRABB, District Judge.

         Plaintiff Joeval Jones, an inmate at the Waupun Correctional Institution, has filed

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this civil rights lawsuit under 42 U.S.C. § 1983 against defendants Todd Russell and John O'Donovan, two correctional officers at the Waupun prison. Plaintiff contends that defendants Russell and O'Donovan violated his freedom of speech by confiscating an affidavit he sent to another inmate and punishing him on the grounds that the affidavit was " gang-related." Additionally, plaintiff contends that defendants violated his due process rights by failing to provide him fair notice that sending the affidavit to a fellow inmate was prohibited and could result in discipline.

         The parties have filed cross-motions for summary judgment on both of plaintiff's claims. Moreover, plaintiff has moved for summary judgment on the ground that defendants are not entitled to qualified immunity. Defendants have opposed plaintiff's motion for a finding that defendants are not entitled to qualified immunity, but only with respect to defendant Russell. Finally, defendants have moved for summary judgment on whether plaintiff is entitled to the various forms of relief he is seeking.

         I will enter summary judgment in plaintiff's favor on both his freedom of speech claim and his due process claim. Defendants have failed to carry their burden of demonstrating that there is a valid, rational connection between their decision to confiscate and destroy plaintiff's affidavit and any legitimate penological interest. With respect to plaintiff's due process claim, defendants have failed to raise a genuine issue of fact with respect to whether plaintiff had fair notice that sending the affidavit could result in punishment.

         I will also enter summary judgment in plaintiff's favor on the question whether defendant Russell is entitled to qualified immunity. A reasonable prison official in Russell's position would have understood that he could not confiscate plaintiff's affidavit and issue plaintiff a conduct report unless doing so furthered a legitimate penological interest; a reasonable prison official in Russell's position would have known also that plaintiff was entitled to fair notice that sending the affidavit to another inmate could result in punishment under DOC § 303.20. As for defendant O'Donovan, by failing to respond to plaintiff's argument, defendants concede implicitly that he is not entitled to qualified immunity.

         This leaves only the question whether plaintiff is entitled to any compensatory damages and punitive damages. This question and the amount of any damages to which plaintiff is entitled will have to be determined at a trial.

         From the parties' proposed facts, I find that the following are relevant and not genuinely disputed.


         On January 15, 2013, two Waupun inmates, Tingia Wheeler and Frederick Jones, received conduct reports for allegedly holding leadership positions in the Gangster Disciples gang and actively participating in the organization and recruitment of its members. Relying on the allegations in these conduct reports, Waupun prison officials held disciplinary hearings and found that both Wheeler and Jones had violated Wisconsin Administrative Code § DOC 303.20, which prohibits unapproved " group activity," participation in an " inmate gang" and gang recruitment. (The Wisconsin Administrative Code was revised in January 2015. As a result of these revisions, the code provisions at issue were renumbered and are now found at DOC § 303.24. However, I will continue to refer to the relevant code section as DOC § 303.20.) After their respective disciplinary hearings, Wheeler and Jones filed a

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joint petition for a writ of certiorari in a Wisconsin state court seeking review of the disciplinary proceeding.

         After plaintiff heard that Wheeler had been disciplined for alleged gang activity and was challenging the disciplinary decision, he prepared an affidavit for Wheeler to use in support of Wheeler's state court certiorari petition. In the affidavit, plaintiff stated that he was a former high-ranking member of the Gangster Disciples and that he had previously offered Wheeler a position in the gang, but Wheeler refused to join because of his religious beliefs. Plaintiff further explained that he had found it " extremely disrespectful" that Wheeler would refuse the opportunity to join the Gangster Disciples, so he put the word out to the gang's members at the Waupun prison that Wheeler should be " eradicated." Certain gang members chose to " eradicate" Wheeler by lying to prison officials about Wheeler's gang involvement in an effort to have Wheeler disciplined and segregated. In essence, plaintiff averred that gang members had orchestrated a misinformation campaign intended to give prison officials the false impression that Wheeler was significantly involved in the Gangster Disciples.

         After drafting the affidavit, plaintiff asked WCI Program Assistant Angelia Kroll to notarize it before he sent it to Wheeler. In his request, he explained that the affidavit was intended to " help a prisoner named Tingia Wheeler in a writ of certiorari action that he has pending in Court" and that the contents of the affidavit were " relevant to the merits of [Wheeler's] certiorari action." He added that he " [did not] know the certiorari case number," but that Wheeler intended to insert it after he received the affidavit. Plaintiff's request for notary services was approved and on May 5, 2014, Kroll went to plaintiff's cell and notarized the affidavit. Plaintiff then sent the affidavit to Wheeler through the prison's " inmate-to-inmate" mail system.

         Later that day, defendant Russell was sorting the inmate-to-inmate mail and discovered the letter from plaintiff to Wheeler. Russell read the affidavit and noticed that it referred to gang activity, so he confiscated the letter and brought it to Security Threat Group Specialist Bret Mierzejewski to review. Mierzejewski told Russell that he believed the affidavit violated DOC § 303.20, which prohibits " group resistance and petitions."

         On the basis of what Russell himself read in the affidavit, as well as the opinion of Specialist Mierzejewski that the affidavit violated DOC § 303.20, Russell issued plaintiff a conduct report (CR #2422807) on May 16, 2014 in which Russell alleged that plaintiff had violated DOC § 303.20. Russell wrote in the conduct report that he questioned whether plaintiff was telling the truth in the affidavit or was instead lying in an effort to exculpate Wheeler from alleged wrongdoing. The conduct report also stated that plaintiff was a " member of the gangster disciples, and due to his continuous involvement with this security threat group he poses a threat to inmates and staff, and he continues to try to disrupt the climate and operations of Waupun Correctional Institution."

         On June 3, 2014, a disciplinary hearing was held at which defendant O'Donovan served as the hearing officer. At the hearing plaintiff argued that he was not lying in the affidavit, and that although the incidents described in the affidavit implicated him in gang activity, he had already been disciplined for those activities. Defendant O'Donovan stated that plaintiff was not being disciplined for lying, so the veracity of the affidavit was irrelevant. However, ...

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