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Zach v. Lewis

United States District Court, W.D. Wisconsin

January 20, 2017

THOMAS W. ZACH, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Thomas Zach, a former prisoner at the Thompson Correctional Center, located in Deerfield, Wisconsin, is proceeding on a claim that defendants Troy Hermans and Randy Lewis violated his First Amendment rights by placing him in temporary lockup in retaliation for filing a grievance.[1] Defendants have filed a motion for summary judgment, acknowledging that Zach was placed in TLU but stating that he was placed there for a non-retaliatory reason: he was being investigated for a violation of prison rules. Defendants contend that the circumstantial evidence Zach provides is too scant to lead a reasonable jury to conclude that they acted with a retaliatory motive. I disagree with defendants' assessment and will deny their motion. This case will proceed to trial on the retaliation claims.


         Unless otherwise indicated, the following facts are undisputed.

         Plaintiff Thomas W. Zach worked as inmate driver at the Thompson Correctional Center (TCC) and was responsible for transporting other inmates to various civilian worksites in nearby counties. TCC staff did not accompany Zach during his rides. But TCC staff provided Zach with a phone equipped with a global positioning system to keep in contact with him as he drove other inmates to the worksites.

         Zach had a reputation among TCC staff that he was a frequent grievance filer.[2]During his time at TCC, Zach filed numerous grievances against TCC staff. Many of these grievances complained of TCC Officer Brian Beahm's conduct. One such grievance arose out an incident that occurred on April 3, 2009. Zach and Beahm got into an argument about buckling the seatbelt in an institution vehicle. It was Zach's practice to buckle the seatbelt after leaving the vehicle to remind the next driver to wear it. Beahm did not approve of Zach's practice, and told him that if he did it again he would be written up. Feeling harassed, Zach requested a grievance form from defendant Sergeant Randy Lewis, who was responsible for distributing grievances forms to inmates who requested them.

         TCC uses the Department of Corrections' Inmate Complaint Review System (ICRS). Under the ICRS, an inmate who wishes to file a grievance related to his imprisonment must draft an offender complaint and submit it to the institution complaint examiner (ICE). In April 2009, Captain Robert Schenck was TCC's ICE.

         Zach states that around noon on April 17, 2009, he approached Schenck while he was sitting at the officer's table with defendant Lewis in the TCC dining room, and hand delivered an offender complaint about the April 3, 2009 encounter with Beahm. Zach also says that Lewis saw this transaction, and that Schenck kept Zach's complaint. Defendants dispute this account. They dispute that Zach handed the grievance to Schenck, and state that Schenck did not accept offender complaints by hand delivery. Though the facts surrounding this dining-room encounter are disputed, I will accept Zach's allegations as true for the purposes of this summary judgment motion. There is no dispute that Schenck ultimately rejected Zach's grievance, stating that it was late, because he did not receive it until April 20, beyond the 14-day deadline. Zach did not appeal the rejection.

         About six hours after Zach delivered the complaint to Schenck, defendant Warden Troy Hermans decided to place Zach in temporary lock up (TLU), and Lewis provided Zach with a Notice of TLU. One purpose of TLU is to separate the inmate from the general population pending an administrative investigation. DOC § 303.10(4). The notice stated that Zach was being placed in TLU because of a “[p]ending investigation for unauthorized forms of communication.” The notice did not explain what the alleged unauthorized communications were.

         Zach says that when he asked Lewis why he was being placed in TLU, Lewis responded, “You tell me, seems you pissed off someone.” Lewis denies this. Lewis then escorted Zach to the Oakhill Correctional Institution, where Zach remained in TLU for 12 days. (Because TCC does not have segregation cells for inmates placed in TLU, inmates placed in TLU are temporarily transferred to Oakhill.)

         While in TLU, Zach was not allowed access to a law library or other legal resources needed to work on pending litigation matters in active briefing, and was confined to his segregation cell except for an hour of optional “recreation time” each day and to shower for 20 minutes every other day. The cell contained a thin, mold-infested mattress that caused Zach various health problems and made him unable to sleep.

         Prison officials never questioned Zach about the alleged communications.[3] Upon his return to TCC, Zach contacted multiple staff members trying to find out why he was placed in TLU, but he was not given an answer.

         Defendants do not have any contemporaneous documentation of the investigation other than the TLU notice. Defendant Hermans says, “If TCC staff suspected Zach of unauthorized forms of communication, there was likely a suspicion of Zach making unauthorized stops to either mail items, retrieve items, make phone calls, or meet someone, ” meaning that the suspicion must have been connected to Zach's job as driver. Dkt. 28, at 4, ¶ 11. But defendants admit that they ...

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