United States District Court, E.D. Wisconsin
JOHN J. CASTELLANO, Plaintiff,
JENNIFER SPOTTS, Defendant.
STANDTMUELLER, UNITED STATES DISTRICT JUDGE
December 2, 2016, the Court screened the plaintiff's
first amended complaint. (Docket #12). The Court found that
the plaintiff had yet again improperly attempted to include
unrelated claims against multiple defendants. Id. at
3-4. The Court struck the complaint and required the
plaintiff to offer a second amended complaint to continue
this action. Id. at 4. On December 21, 2016, the
plaintiff submitted a second amended complaint. (Docket #15).
noted in its November 3, 2016 screening order on the initial
complaint, the Court is required to screen complaints brought
by prisoners seeking relief against a governmental entity or
an officer or employee of a governmental entity. See
(Docket #10 at 1); 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). The same
standards cited in the original screening order apply here.
(Docket #10 at 1-3).
second amended complaint is presented against a single
defendant, Jennifer Spotts (“Spotts”). (Docket
#15 at 2). The plaintiff complains that Spotts, a
psychologist, lied about him in various ways, resulting in
the revocation of his supervised release in January 17, 2014.
See id. at 2-16. Most of the alleged
falsities come from a report dated May 18, 2011, titled a
“Sex Offender Program Report.” (Docket #15-1 at
Spotts offered her opinions on the plaintiff after his
completion of a sex offender treatment program she
supervised. Id. The plaintiff states that there are
a number of inaccuracies in the report, including facts
regarding his underlying offenses and his relationship with
other underage girls. (Docket #15 at 5-16). The plaintiff
maintains that these alleged misstatements influenced various
people involved in the revocation process, including the
plaintiff claims that Spotts' lies were retaliation in
violation of his First Amendment rights. Id. at 2.
These allegations begin with the plaintiff's
participation in the SO-2 program. Id. at 4-5. The
plaintiff does not describe the contours of this program and
the process for entering it, but Judge Adelman has:
SO-2 is a short-term, eleven-month sex offender treatment
program that is designed for inmates who have been identified
through risk assessment as having a low to moderate risk for
sexual re-offense and low to moderate treatment needs. Upon
successful completion of SO-2, a treatment progress report is
placed in an inmate's clinical file, and completion is
noted for future case planning and classification. Completion
of sex offender treatment is required for some
parole-eligible inmates before they will be considered for
release on parole. The Parole Commission makes this
determination. When an inmate becomes parole-eligible or the
Parole Commissioner provides an endorsement for treatment,
the inmate is then reviewed by [the supervising doctor] for
possible participation in SO-2. This typically occurs when an
inmate is within a few years of eligibility for release.
There are a limited number of seats available in each sex
offender treatment group and there is a lengthy wait-list to
enroll. Inmates who are closest to their release date are
considered for enrollment first to try to ensure that they
receive treatment before they enter the community. When
considering enrolling an inmate in SO-2, [the doctor] would
consider an inmate's release date and would give
additional consideration to whether the inmate had received
from the Parol[e] Commission an endorsement for treatment.
Such an endorsement signals to [the doctor] that the inmate
may be eligible for parole release in the near future.
Inmates are selected for participation in SO-2 on a
case-by-case basis. This occurs through a review of the
current wait list and a review of the inmate's relevant
records, including, but not limited to, the judgment of
conviction, presentence investigation, criminal complaint,
and Parole Commission endorsements. An inmate is then
interviewed and asked to briefly explain their sexual offense
history. Based on the information available, [the doctor]
exercises professional discretion in selecting program
Glover v. Dickey, No. 14-CV-87-LA, 2015 WL 5521858
*1-2 (E.D. Wis. Sept. 18, 2015).
that primer, the Court addresses the plaintiff's relevant
allegations. In January 2009, the plaintiff met with Spotts.
He told Spotts that parole commissioner Steven Landreman
(“Landreman”) had “give [the plaintiff] his
endorsement for SO-2.” (Docket #15 at 4). Spotts
responded that “there were inmates with five and six
SOT endorsements from Mr. Landreman, but they had been
denied, that he knows this, [and] that they have had several
discussions on his endorsements[.]” Id. Spotts
further stated that “there were 395 inmates on the SOT
waiting list, and that she needed another (“87")
facilitators for SOT programs. . . . She then said that
inmates are not allowed to participate in SOT until they are
within two years from their mandatory release dates.”
(Docket #15-1 at 16).
January 2010, the plaintiff met again with Landreman. The
plaintiff had previously complained to Landreman that
“his SOT/SO-2 recommendation(s) [had fallen] on deaf
ears.” (Docket #15 at 2). Landreman told the plaintiff
“that he had just talked with [Spotts] about the . . .
allegation that [the plaintiff's] SO-2 endorsements fell
on deaf ears.” Id. at 4. Landreman “said
that [Spotts] called [the plaintiff] a
(“LIAR”).” Id. In March 2010,
however, the plaintiff was enrolled in Spotts' SO-2
program, and successfully completed it in February 2011.
Id. at 4-5. He was released on parole in May 2011.
Id. at 5.
Court concludes that the plaintiff has stated a viable claim
for First Amendment retaliation. To state such a claim, the
plaintiff must show 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 Defendants' decision to
take the retaliatory action.” Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quotation
omitted). The Court is not convinced that the plaintiff's
complaint about the SO-2 program was protected speech, or
that retaliatory motive can be inferred across the time span
between the January 2010 “liar” comment and
Spotts' May 18, 2011 report. See Watkins v.
Kasper, 599 F.3d 791 (7th Cir. 2010) (addressing
protected speech); Banks v. Thomas, No. 11-301-GPM,
2011 WL 6151637 (S.D. Ill.Dec. 12, 2011) (discussing timing
issue). However, given the Seventh Circuit's extremely
liberal approach to retaliation claims, the Court concludes
that further factual development is needed before the claim
is subject to dismissal.
plaintiff's other related claims do not survive. The
plaintiff fails to state a valid equal protection claim. He
alleges a “class-of-one” style claim, which
requires that “he was ‘intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in
treatment.'” Swanson v. City of Chetek,
719 F.3d 780, 783-84 (7th Cir. 2013) (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Other
than to state that legal conclusion, the plaintiff does not
allege that he was treated differently than any other ...