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Rudebush v. Lenski

United States District Court, W.D. Wisconsin

September 28, 2016


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiffs Damien Rudebush and Ronald Knipfer, civil detainees confined at the Sand Ridge Secure Treatment Center, are not allowed to possess books about video game “cheat codes, ” codes can that unlock content within video games. They are proceeding on federal First Amendment and due process claims, as well as state law conversion and negligence claims, against defendant Mitchell Lenski for wrongfully withholding two cheat code books that plaintiffs ordered from outside the facility.

         Defendant has filed a motion for summary judgment. After the parties completed summary judgment briefing, plaintiffs filed a motion to voluntarily dismiss their claims for money damages, leaving only their claims for injunctive and declaratory relief. I will grant defendant's summary judgment motion on plaintiffs' due process claim but deny it on plaintiffs' First Amendment claim. Because this court cannot grant injunctive or declaratory relief on plaintiffs' state law claims, I will dismiss those claims. I will direct defendant to show cause why the court should not enter judgment in plaintiffs' favor on the First Amendment claim and order defendant to deliver the cheat code books to plaintiffs.


         Unless otherwise indicated, the following facts are undisputed.

         A. Parties

         Plaintiffs Damien Rudebush and Ronald Knipfer are both persons civilly committed to the Sand Ridge Secure Treatment Center as sexually violent persons under Wisconsin Statutes Chapter 980. Sand Ridge is a secure treatment facility operated by the Wisconsin Department of Health Services (DHS). Defendant Mitchell Lenski is employed by DHS as a supervising officer (captain) at Sand Ridge. Defendant supervises staff and is responsible for the administration and coordination of security at the facility.

         B. Sand Ridge policies

         Sand Ridge's mission is to provide specialized mental health treatment, rehabilitation, training, and supervision to patients housed in the facility. A secure setting is necessary to ensure the effectiveness of the treatment, and to ensure patients and staff are afforded a safe therapeutic environment.

         Sand Ridge allows patients to obtain and possess personal property subject to DHS rules and institution policies, taking into account security and treatment concerns. All property entering Sand Ridge must be screened, searched, x-rayed, and approved prior to the patient receiving the item. All property items must be sent new from an approved retail vendor. If a piece of property is denied, the patient has the option to send it back to the vendor at the patient's expense. Alternatively, the item will be thrown away.

         Sand Ridge policy #SR 115, titled “Patient Personal Property, ” states that “[questionable items that need review for treatment/security reasons will be processed in accordance with policy SR479 Review of Patient Reading Materials and Pictures, ” and that “[s]taff will review incoming publications for contraband.” Dkt. 38-1, at 8, 22.

         Sand Ridge policy #SR 479 states, “Content of reading materials and pictures are scanned for contraband upon arrival at the facility. The Security Director, Administrative Captain or Mail and Property Captain will review materials suspected of containing material that threatens the security of the facility.” Dkt. 38-3, at 1-2. It also states that “[a]n item defined as contraband for the facility due to security reasons will be banned from the facility without further review.” Id. at 2. Staff denies approximately 800 property or mail items each year.

         Policy #SR 401, titled “Client Rights Limitation or Denial Documentation Process, ” describes the process used when curtailing a patient's rights to “make telephone calls, wear one's own personal clothing or keep one's personal property, adequate storage space, privacy in toileting and bathing, and to see visitors daily.” Dkt. 40-2, at 1. When a staff member concludes that it is necessary to curtail a patient's right under this procedure, the staff member fills out a Client Rights Limitation or Denial Documentation (CRLDD) form. The form is given to the patient and the patient is given a chance to attend an “Informal Hearing/Meeting” within three days. The policy also states that “[c]ertain property items are prohibited per policy for all patients at SRSTC. When property is not allowed under these circumstances, a CRLDD does not have to be completed.” Id. at 4.

         Sand Ridge Policy #SR 477 prohibits patients from communicating with another person “by a method not authorized by the facility.” Dkt. 38-7, at 7. Some examples of unauthorized communication include “unrecognizable languages, alphabets, symbols or codes.” Dkt. 38-4, at 2. Symbols or codes can conceal gang messages, escape plans, plans to injure another, or messages regarding counter-therapeutic behavior.

         Since 2005, patients have been prohibited from purchasing any new video games or video game systems, components, or accessories. Sand Ridge has grandfathered the use of pre-existing approved systems to play pre-approved games on a limited basis. Policy #SR 485, titled “Video Game Policy, ” describes access to video games. Patients are prohibited from possessing games that depict the following:

1. Normalizes violence
2. Sensationalizes and/or supports criminal or illegal activity
3. Encourages drug use
4. Depicts degrading sex or sadomasochism
5. Depicts gratuitous violence or senseless killing
6. Includes sex with minors
7. Includes full front ...

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