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Peace v. Kemper

United States District Court, E.D. Wisconsin

September 30, 2016

DANIEL ANTHONY PEACE, Plaintiff,
v.
WARDEN PAUL KEMPER, LISA AVILA, ROBIN DIEBOLD, KIMBERLY ENGEL, CO JONES, CO II LAMKE, TERRY ZIEM, CO JOHN DOE 1, and CO JOHN DOE 2, Defendants.

         DECISION 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

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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. No. 25.

         On 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.

         Since 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. No. 56.

         The 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.

         I. Motion to Dismiss Retaliation Claim

         The 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.

         A. Motion to Dismiss Standard

         A 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).

         “A 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).

         In 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”).

         B. Legal Analysis

         The 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 Amendment.

         To 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 ...


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