United States District Court, E.D. Wisconsin
AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S RETALIATION CLAIM (DKT. NO. 31), GRANTING
DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON
EXHAUSTION GROUNDS (DKT. NO. 34), DENYING DEFENDANTS'
MOTION IN LIMINE (DKT. NO. 50), DENYING DEFENDANTS'
MOTION TO STAY BRIEFING ON PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT (DKT. NO. 56), DENYING PLAINTIFF'S
MOTION TO STRIKE DEFENDANTS' MOTINO FOR PARTIAL SUMMARY
JUDGMENT (DKT. NO. 60), DENYING PLAINTIFF'S REMAINING
MOTIONS (DKT. NOS. 51, 52, 57), AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, Daniel Anthony Peace, is proceeding on (1) Eighth
and Fourteenth Amendment claims that staff spread information
about a sexual assault the plaintiff reported, and (2) a
First Amendment retaliation claim that he received a conduct
report in retaliation for reporting a sexual assault. Dkt.
November 13, 2015, the defendants filed a motion to dismiss
the plaintiff's retaliation claim (Dkt. No. 31), and a
motion for partial summary judgment on exhaustion grounds on
the plaintiff's other claims, Dkt. No. 34. On February
10, 2016, the court stayed discovery on the merits until
after it could decide the motion to dismiss and motion for
partial summary judgment. Dkt. No. 46.
the court stayed discovery on February 10, 2016, the
plaintiff has filed: a motion to appoint officer of the court
(Dkt. No. 51), a motion for partial summary judgment on his
retaliation claim (Dkt. No. 52), a motion for order allowing
use of his release account for copies and legal supplies
(Dkt. No. 57), and a motion to strike the defendant's
motion for partial summary judgment on exhaustion grounds
(Dkt. No. 60). The defendants have filed: a motion in
limine (Dkt. No. 50) and a motion to stay briefing on
the plaintiff's motion for partial summary judgment, Dkt.
court will deny the plaintiff's motion to strike the
defendant's motion for partial summary judgment on
exhaustion grounds, because it is an improper attempt to
supplement the plaintiff's response to the
defendants' motion more than two months after his
original response. Dkt. No. 60. The court will deny the other
post-February 10, 2016 motions, based on the fact that it is
granting both the defendants' motion to dismiss the
retaliation claim and their partial summary judgment motion.
Motion to Dismiss Retaliation Claim
defendants ask the court to dismiss the plaintiff's
retaliation claim. Dkt. No. 31. They submit that it is not
plausible to infer that the plaintiff received a conduct
report in retaliation for reporting a sexual assault.
Instead, based on the conduct report itself, which the
plaintiff attached to his amended complaint, the defendants
argue that the only plausible bases for the conduct report
were (1) the plaintiff being less than truthful during the
sexual assault investigation and (2) the plaintiff engaging
in sexual acts.
Motion to Dismiss Standard
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). When evaluating a motion to dismiss
under Rule 12(b)(6), the court accepts as true all
well-pleaded facts in the complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a motion to dismiss under Rule
12(b)(6), a complaint must allege “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937 (2009). In this context,
“plausible, ” as opposed to “merely
conceivable or speculative, ” means that the plaintiff
must include “enough details about the subject-matter
of the case to present a story that holds together.”
Carlson v. CSX Transp., Inc., 758 F.3d 819, 826-27
(7th Cir. 2014) (quoting Swanson v. Citibank, N.A.,
614 F.3d 400, 404-05 (7th Cir. 2010)). “[T]he proper
question to ask is still could these things have happened,
not did they happen.” Id. at 827 (internal
quotation and citation omitted). The plaintiffs “need
not ‘show' anything to survive a motion under Rule
12(b)(6)-[they] need only allege.” Brown v.
Budz, 398 F.3d 904, 914 (7th Cir. 2005).
their motion to dismiss, the defendants may rely only on the
pleadings, but exhibits are part of a complaint. See
Fed.R.Civ.P. 10(c) (“A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading
for all purposes.”). Plaintiffs may oppose a motion to
dismiss with “materials outside the pleadings to
illustrate the facts the party expects to be able to
prove.” Geinosky v. City of Chicago, 675 F.3d
743, 745 n.1 (7th Cir. 2012) (citing Early v. Bankers
Life and Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) for
the proposition that a “plaintiff is free to assert new
facts in [a] brief opposing [a] motion to dismiss”).
defendants argue that the plaintiff's complaint failed to
state a First Amendment retaliation claim because retaliation
is not a plausible reason for the conduct report the
plaintiff received. Rather, the conduct report attached to
the amended complaint sets forth the reasons it was issued:
the writer determined the plaintiff was “less than
truthful” and had engaged in sexual acts, which
violates the Wisconsin Administrative Code. Additionally, the
defendants submit that if the plaintiff's report of
sexual assault was false, it was not protected by the First
state a retaliation claim, the plaintiff must allege that
“(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the
First Amendment activity was at least a motivating factor in
the [d]efendants' decision to take the retaliatory