United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
action under 42 U.S.C. § 1983, the claims of plaintiff
Roy Collins, an inmate at Columbia Correctional Institution,
all center around allegations that two officials of the
Wisconsin Department of Corrections violated the First
Amendment by refusing to send his outgoing mail. Before the
court is defendants' motion for summary judgment. Because
the court finds that Collins has failed to put forth
sufficient evidence to support a finding that his First
Amendment rights were violated (or that he was retaliated
against for exercising his First Amendment rights), the court
will grant defendants' motion as to plaintiff's
federal constitutional claims. As for his remaining,
supplemental state law claims, the court declines to exercise
its supplemental jurisdiction and will dismiss those without
Roy Collins was confined at all times material to this action
at Columbia Correctional Institution (“CCI”), a
maximum-security institution located in Portage, Wisconsin.
Defendant Michael Meisner is presently employed as Warden of
the Redgranite Correctional Institution, but was employed as
Warden of CCI for all times relevant to Collins' claims.
Defendant Erin Berglund is presently employed at Oregon
Correctional Institution, but was employed as a Sergeant at
CCI from January 2011 through September 2015. Though not a
named defendant, Sandra Hautamaki is currently employed as
the Deputy Warden of Redgranite Correctional Institution, but
was employed at CCI during times relevant to plaintiff's
claims, first as the Corrections Unit Supervisor beginning in
June 2011 and then as Deputy Warden in June 2013.
2012, defendant Berglund was assigned to the third shift in
CCI's Housing Unit 9. As part of her duties, Berglund
would process incoming and outgoing inmate mail. In addition
to checking for contraband, this included reviewing mail to
make sure it complied with the Wisconsin Department of
Corrections (“DOC”) administrative code,
specifically Wis. Admin. Code § DOC 309.04, and other
institution rules. When reviewing mail between
inmates, Berglund would refer to a Mail Read Log DOC-240
Form. (Hart Decl., Ex. 1003 (dkt. # 27-4) 2.) That form
provides that incoming and outgoing mail between inmates
shall not be delivered if it contains various types of
content, including obscene materials. The form defines
if the average person, applying state contemporary community
standards, would find that the work, taken as a whole: a.
appeals to the prurient interest; b. depicts or describes, in
a patently offensive way, acts involving necrophilia,
masochism, sadism, bestiality, or an unnatural preoccupation
with excrement; and c. lacks serious literary, artistic,
political, or scientific value.
(Id.) This definition of obscenity is consistent
with that adopted in Wis. Admin. Code § DOC
incoming or outgoing mail is not delivered, the inmate will
be sent a completed DOC-243, a Notice of Non-Delivery of
Mail.” Department of Adult Institutions Policy
#309.04.01(IV)(G). An inmate may appeal decisions regarding
the non-delivery of mail to the warden by filing form
DOC-400. Wis. Admin. Code § DOC 309.04(4)(c)(f).
January 30, 2012, Letter
January 30, 2012, Collins attempted to send a letter
addressed to a female inmate, incarcerated in Louisiana.
Based on her recollection, defendant Berglund represents that
the letter described “sexual things [Collins] was going
to do to the recipient, ” including “sexual
violence.” She specifically recalls that he was going
to “fuck up her cervix.” (Defs.' PFOFs (dkt.
#26) ¶ 10 (citing Berglund Decl. (dkt. #28) ¶ 11).)
part, Collins contends that the tone of the letter was
“reflective about what he's learned to make his
future Relationships better.” (Pl.'s PFOFs (dkt.
#36) ¶ 39 (citing Collins Decl. (dkt. #37) ¶
12).) Collins further represents that the letter
contained a “short fiction love-story/romantic fantasy,
” and that the “sexual descriptions were both
blunt and poetic, ” but characterizes the content as
“artistic in nature” and specifically represents
that the letter “did not include any obscene
material.” (Id. at ¶ 40 (citing Collins
Decl. (dkt. #37) ¶ 15).) Collins further represents that
he “never wrote the phrase ‘fuck up her
cervix' in this Jan. 30, 2012 letter, nor did he write
anything similar to that phrase.” (Pl.'s Resp. to
Defs.' PFOFs (dkt. #35) ¶ 10 (citing Collins Decl.
(dkt. #37) ¶ 12).)
returned the letter to Collins with a post-it note on it, but
did not provide a DOC-243 notice. Collins kept that note,
which he includes with his summary judgment submission, but
he apparently discarded the letter itself. The note cites:
“ADMINISTRATIVE CODE 309.02(16) PG 60 SECTION (16)(C).
NO WRITTEN MATERIALS MAY BE PORNOGRAPHIC.” (Collins
Decl., Ex. 014 (dkt. #37-5).) While Berglund contends that
she returned the letter to provide him an opportunity to
amend the letter, Collins points out that the post-it note
contains no such instruction. Berglund explains this by
representing that “[t]o the best of her recollection
she instructed Collins to remove the portions of the letter
involving descriptions of sexual acts.” (Defs.'
PFOFs (dkt. #26) ¶ 11 (citing Berglund Decl. (dkt. #28)
¶ 12).) In response, Collins directly disputes this,
representing that Berglund, at no time, instructed him to
remove any portions of the letter. (Pl.'s Resp. to
Defs.' PFOFs (dkt. #35) ¶ 11; see also
Pl.'s PFOFs (dkt. #36) ¶¶ 11, 12.) To the
contrary, Collins states that Berglund simply left the letter
with the attached post-it note in the crack of his cell door.
February 13, Collins submitted an interview/information
request slip about the January 30th letter to his then-Unit
Supervisor, Sandra Hautamaki. Hautamaki responded that she
would need to see the letter to determine whether it could be
mailed out. Hautamaki has no knowledge of what happened to
this letter, though she understands that Collins told the
Inmate Complaint Examiner that he no longer had the letter.
Collins does not dispute this, other than to note that the
January 30th letter was never mailed.