Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Atkinson v. Mackinnon

United States District Court, W.D. Wisconsin

May 18, 2016

CHRISTOPHER SCOTT ATKINSON, Plaintiff,
v.
FELIPA MACKINNON, JOSEPH WARNKE and CRYSTAL SCHWERSENSKA, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         In this prisoner civil rights case, pro se plaintiff Christopher Atkinson alleges that defendants Felipa MacKinnon, Joseph Warnke and Crystal Schwersenska (prison officials at the Federal Correctional Institution in Oxford, Wisconsin) discriminated against him because of his Muslim faith and then retaliated against him when he complained about his poor treatment. In particular, plaintiff is proceeding on the following claims: (1) defendants Warnke and Schwersenska violated his rights under the free exercise and establishment clauses of the First Amendment, the equal protection component of the Fifth Amendment and the Religious Freedom Restoration Act when they changed plaintiff’s pay, job title, duties and hours; (2) defendant Mackinnon violated the free speech, free exercise and establishment clauses of the First Amendment, the equal protection component of the Fifth Amendment and RFRA by refusing to reinstate his job privileges, submitting poor work performance evaluations of plaintiff and telling plaintiff that he must find new work.

         Defendants have filed a motion for summary judgment, dkt. #45, which is ready for review. The primary issued raised in defendants’ motion is whether they disciplined plaintiff because of an honest belief that he stole food from the prison kitchen or because plaintiff is a Muslim and filed grievances against defendants. Because I conclude that genuine issues of material fact remain on these questions, Fed.R.Civ.P. 56, I am denying defendants’ motion.

         After the parties finished briefing defendants’ summary judgment motion, plaintiff filed several of his own motions: (1) a motion to supplement his responses to defendants’ proposed findings of fact, dkt. #81; (2) two requests for a subpoena duces tecum for the Bureau of Prisons, dkt. ##83 and 86; and (3) a request to require the Bureau of Prisons to provide the court an unredacted copy of defendant Schwersenska’s time and attendance report, dkt. #85. (In addition, plaintiff has filed a petition for a writ of habeas corpus ad testificandum with respect to prisoner Gregg Vandyke, dkt. #91, but defendants have not had the opportunity to respond to the request yet.)

         In his motion to supplement his responses to defendants’ proposed findings of fact, plaintiff says that he inadvertently failed to include one page of his responses when he submitted them to defendants and the court. Because defendants have not objected to plaintiff’s motion, I will grant it. Further, because plaintiff submitted his proposed supplement with his motion, no additional action is needed.

         I am denying both of plaintiff’s subpoena requests because he has not shown that he is entitled to the materials he is requesting. Finally, I am granting plaintiff’s request for an in camera inspection.

         From the parties’ proposed findings of fact and the record, I find that the following facts are undisputed.

         UNDISPUTED FACTS

         Plaintiff Christopher Atkinson is a federal prisoner incarcerated at the Federal Correctional Institute at Oxford, Wisconsin. In November 2013, plaintiff worked in the prison’s food services department as a “Grade 2” inmate worker. He was assigned to the morning shift (4:30 a.m. to 12:30 p.m.), working on the serving line.

         On November 12, 2013, defendant Joseph Warnke, a cook supervisor, confronted plaintiff about one or more chicken patties that plaintiff was holding. (The parties dispute most of the details about this incident. I will discuss the parties’ different versions in the context of the opinion.) The incident ended with Warnke confiscating the patty or patties and directing plaintiff to leave the food service area. After defendant Warnke spoke to defendant Crystal Schwersenska, another cook supervisor, about what he had observed on November 12, Schwersenska reassigned plaintiff to a new position away from the food service line. (The parties debate in their briefs and proposed findings of fact whether Schwersenska had authority to reassign plaintiff, but I need not resolve that dispute to decide defendants’ motion. The parties do not identify what plaintiff’s new position was.)

         On November 13, 2013, plaintiff received a “poor” rating on a work evaluation on the ground that he “grabbed a handful of chicken patties from the hotbox and took off with them.” Dkt. #1-1 at 4. (Defendants do not identify the person who gave plaintiff the negative evaluation. Plaintiff alleges that defendant Felipa Mackinnon, the food services administrator, admitted that she was responsible. Cpt. ¶ 46, dkt. #1.)

         Also on November 13, 2013, plaintiff submitted an administrative grievance in which he described the events on November 12 and 13 and alleged that defendant Warnke was mistreating him because of his religious beliefs. In response, the warden stated that plaintiff’s “allegation of staff misconduct has been referred to the appropriate department for investigation.”

         Soon after the incident, plaintiff requested a meeting with defendant Felipa Mackinnon, the food services administrator. At the meeting, plaintiff denied stealing the chicken patties, but he did not accuse Warnke of making disparaging comments about the Muslim faith. Mackinnon did not give plaintiff his old job back.

         Plaintiff was scheduled to work fewer hours in his new position. In October 2013, plaintiff worked 147 hours. In November 2013, he worked 74 hours. He worked 20 hours each month from December 2013 to March 2014. In April 2014, he worked 30 hours. In May, June and July 2014, he worked 32 hours. After that plaintiff received “maintenance pay” because he refused to participate in the “Financial Responsibility Program.” (Plaintiff does not allege that defendants were involved in that decision.)

         In March 2014, plaintiff’s “poor” rating was changed to “good” retroactively. A notation on the unsigned evaluation form states that plaintiff “has a consistent institution work history.” (Defendants do not say who made the change or why. Plaintiff alleges that Mackinnon admitted that she was responsible for the retroactive changes, but she did not explain the reasons for them. Cpt. ¶ 46, dkt. #1.)

         Plaintiff remained an employee in food services until March 2015, when the Special Investigative Services unit recommended a reassignment because of plaintiff’s alleged involvement in making a threat to a coworker. (Plaintiff denies that he threatened anyone.) Neither defendants nor anyone else in food services participated in making the recommendation for reassignment.

         OPINION

         I. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

         Defendants raise several arguments in support of their motion for summary judgment:

         (1) plaintiff’s constitutional claims must be dismissed because plaintiff does not have the right to sue federal employees for damages under the First Amendment or Fifth Amendment; (2) plaintiff’s claims under RFRA and the free exercise clause should be dismissed because defendants did not substantially burden plaintiff’s religious exercise and their conduct furthered a compelling interest by the least restrictive means; (3) plaintiff’s claims under the establishment clause and the equal protection component of the Fifth Amendment should be dismissed because defendants did not discriminate against plaintiff on the basis of his religion; and (4) plaintiff’s retaliation claim against defendant Mackinnon should be dismissed because Mackinnon did not take any adverse actions against plaintiff and plaintiff has no evidence of retaliatory intent. In addition, defendants argue that plaintiff is not entitled to seek damages for mental or emotional injuries. I will address each of these arguments in turn. (Defendants discuss a retaliation claim against defendants Warnke and Schwersenska as well, but I did not allow plaintiff to proceed on such a claim, so I need not address it.)

         A. Scope of Right to Sue for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.