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Anderson v. Olson

United States District Court, W.D. Wisconsin

January 6, 2017




         After granting summary judgment to defendants on pro se plaintiff Tracy Anderson's First Amendment free exercise claim, the court gave Anderson a chance to respond to defendants' motion for summary judgment on his remaining Fourteenth Amendment due process claim, since defendants did not seek summary judgment on that claim until their reply brief. (Op. & Order 6/4/15 (dkt. #45).) Anderson has since responded to defendants' motion. (Dkt. #36.) Below, the court identifies a number of reasons it appears Anderson's due process claim must fail under recent, straightforward Seventh Circuit case law. Accordingly, defendants' motion for summary judgment on plaintiff's last remaining claim will be granted.


         Anderson was transferred to the segregation unit at Waupun Correctional Institution (“WCI”) on May 6, 2013. On May 9, 2013, when Anderson's property was inventoried, Correctional Officer Feucht determined that Anderson had thirty-one books and publications over the limit for the general population, and fifty-two over the limit for segregation.

         At the times relevant to this lawsuit, defendant Levey, the property segregation officer, was responsible for delivering an inmate's property and property documents to the segregation unit. Anderson confirms that Levey noted “ICI” on the DOC-237 form dated May 9, 2013, which indicates that Anderson stated his intent to file an offender complaint regarding his over-the-limit property. Moreover, Anderson admits that he initially decided to file an inmate complaint before deciding to mail out some of his books. (Aff. of Tracy Anderson (dkt. #35) ¶ 13.) Nevertheless, the form also includes the note, “refused to sign, ” in a blank space near another notation with the same date as the form. (Exs. (Dkt. 1-1) ECF 21.)

         The parties dispute whether Anderson ever notified defendants that he wanted them to mail his contraband property. Defendants further deny that Anderson ever informed anyone else at WCI that he wanted to mail out his over-the-limit property, either orally or by submitting the required forms, before it was destroyed consistent with established policy.

         Anderson, on the other hand, asserts that he sent a form to defendant Olson to request that some of the books in his excess property be mailed out to family members. The record also contains just such a form, written by Anderson, making that very request, addressed to Captain Olson, and dated May 15, 2013. (Aff. of Linda G. Alsum-O'Donovan Ex. 107 (dkt. #31-3) at 16.) However, Olson specifically denies that he ever received the request slip. Moreover, the form contained in the record does not have any indicia that Olson received it; instead, the form is stamped to indicate that it was “Inmate Submitted” on July 1, 2013, and attached as an exhibit to the inmate complaint that Anderson filed after his property was destroyed. (Id.)

         It is undisputed, however, that Anderson had a balance of $15.21 in his trust account statement on May 15, 2013, after two deposits of $12 and $13 that same day. While there is no evidence as to how much money Anderson would have needed in his account to mail out his property, the parties also agree that he had enough money in his account to mail his property at some point before it was destroyed.

         Even if Olson received Anderson's request slip, he still would have needed to submit a disbursement form authorizing the release of funds from his account for the purpose of mailing out his property. Anderson asserts that after he sent the request slip to Captain Olson, Officer Levey returned to his cell in segregation on one of his daily rounds to ask him what shipping address he wanted used for his property. (Aff. of Tracy Anderson (dkt. #47) ¶ 3.) Anderson claims that he then filled out the necessary forms for shipping when Officer Levey returned to his cell, including a disbursement form.[2]

         Anderson also attached two other request forms to his complaint, which reference a request to have his property mailed out. One form, addressed to Olson, is dated June 19, 2013, and reports Anderson's concern that his mother had still not received the property he wanted mailed. (Exs. (dkt. #1-1) ECF 7-8.) The other form is addressed to defendant Dahlke and dated June 25, 2013. (Exs. (dkt. #1-1) ECF 11-12.) That form references a conversation Anderson claims to have had with Sergeant Dahlke on June 20, 2013, during which Dahlke apparently told Anderson that he did not have enough money to mail his property, but that Dahlke would hold it until Anderson had sufficient funds in his account. (Id. at ECF 11.) As with the other request slip, however, neither of these forms has any markings indicating that they were actually received by any of the defendants or by any other DOC official.

         Dahlke ultimately disposed of Anderson's contraband property on June 20, 2013. The DOC-237 property disposition form indicates that Anderson's property was destroyed on that date because of “No Contact.” (Aff. of Linda G. Alsum-O'Donovan Ex. 107 (dkt. #31-3) ECF 18.) The parties agree that June 20 was more than thirty days after Anderson's excess property was originally confiscated, so the disposal would be authorized by WCI policy if Anderson never actually indicated to the defendants or someone else in the WCI property department that he wanted to mail his property.

         After the disposal of his property, Anderson sent Captain Olson a request form on June 26, 2013, complaining that Dahlke had destroyed his property despite Anderson specifically telling Dahlke that he wanted to mail it to his family. This request form does indicate that Olson received it and responded that contraband property is held for thirty days, after which it is destroyed. Anderson then filed an offender complaint concerning his property, which was ultimately rejected.

         The DOC investigation into Anderson's complaint concluded that “Anderson did not have any funds to send property out when he talked with Officer Levey, ” adding that when Anderson “talked with Sgt. Dahlke, when he finally did have funds, the property was already disposed after being ...

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