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Walker v. Hamblin

United States District Court, E.D. Wisconsin

February 29, 2016

TONY D. WALKER, Plaintiff,
v.
GARY HAMBLIN, JAMES SCHWOCHERT, MARC CLEMENTS, RICHARD W. PHILLIPS, KAREN LARSEN, and RICK A. RASMUSSEN,

DECISION AND ORDER

LYNN ADELMAN, DISTRICT JUDGE

The pro se plaintiff, Tony D. Walker, filed this lawsuit under 42 U.S.C. § 1983. He is proceeding in forma pauperis on a procedural due process claim based on allegations that defendants failed to provide him with notice of a disciplinary hearing that resulted in a 120-day segregation disposition. The parties have filed cross-motions for summary judgment. For the reasons explained in this order, I will deny plaintiff’s motion and grant defendants’ motion.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

FACTS[1]

A. Defendants’ Proposed Findings of Fact

On December 7, 2010, while at Dodge Correctional Institution, plaintiff was served with a copy of Conduct Report 1879205. (Dkt. 60 ¶ 1.) Sergeant Grahn wrote the conduct report on December 5, 2010, accusing plaintiff of violating Wis. Admin. Code §§ DOC 303.27, lying; 303.34, theft; 303.40, unauthorized transfer of property; and 303.47, possession of contraband miscellaneous. (Id.) The conduct report alleged that plaintiff took items from the library without permission, and lied about it when confronted by staff. (Id.)

Also on December 7, 2010, plaintiff was served with a copy of a Notice of Major Disciplinary Hearing Rights and Waiver of Major Hearing and Waiver of Time, which explained his rights with regard to a disciplinary hearing. (Id. ¶ 2.) Among other things, this form notified plaintiff that he would receive a hearing on the conduct report sometime between two and twenty-one days from the date he received the conduct report. (Id. ¶ 3.) Plaintiff signed the Notice of Major Disciplinary Hearing Rights and Waiver of Major Hearing and Waiver of Time, acknowledging that he understood his rights. (Id. ¶ 4.)

On December 13, 2010, at 12:45 p.m., a disciplinary hearing was held at Dodge Correctional Institution (Id. ¶ 5.) A decision was issued on December 15, 2010, finding plaintiff guilty of violating Wis. Admin. Code §§ DOC 303.27, lying; 303.34, theft; and 303.47, possession of contraband miscellaneous. (Id. ¶ 6.) He was found not guilty of violating Wis. Admin. Code § DOC 303.40, unauthorized transfer of property. (Id.) The disposition was 120-days disciplinary separation and restitution in the amount of $10.80. (Id.)

Plaintiff filed an Appeal of Adjustment Committee of Hearing Officer’s Decision, which he dated December 15, 2010. (Id. ¶ 7.) On January 31, 2011, defendant Deputy Warden Marc Clements issued a decision on plaintiff’s appeal, which modified the hearing officer’s decision. (Id. ¶ 8.) Defendant Clements dismissed the violation of Wis. Admin. Code § DOC 303.47 because it is a lesser included offense of Wis. Admin. Code § DOC 303.34. (Id.) He also modified the disposition from 120 days of disciplinary separation to 90 days. (Id.) Defendant Clements affirmed the remainder of the hearing officer’s decision. (Id.)

Plaintiff was in disciplinary separation from December 15, 2010, to February 4, 2011, at which time he was transferred to Green Bay Correctional Institution and housed in general population. (Id. ΒΆ 9.) Plaintiff served 52 days of his 90-day ...


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