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Wheeler v. Radtke

United States District Court, E.D. Wisconsin

February 10, 2017



          LYNN ADELMAN United States District Judge.

         The pro se plaintiff, Tingia Wheeler, a Wisconsin state prisoner, filed this civil rights action under 42 U.S.C. § 1983. Wheeler filed a third amended complaint alleging that the defendant, Captain Cynthia Radtke, issued him a retaliatory conduct report.[1]The parties have filed cross-motions for summary judgment. For the reasons explained in this order, I will deny plaintiff’s motion, grant defendant’s motion, and dismiss this case.

         I. FACTS

         A. Parties

         Wheeler is confined at the Waupun Correctional Institution (Waupun). Defendant Radtke is a supervising officer 2 (captain) at Waupun and has been employed in this position since February 2012. In addition to her position as captain, between November 2012 and April 2016, Radtke was also the security threat groups/gang coordinator at Waupun. She left that position to assume the position of administrative captain at Waupun.

         B. Conduct Report 2303800

         On January 14, 2013, Captain Radtke issued Wheeler Conduct Report 2303800 for violating Wis. Admin. Code § DOC 303.20,[2] Group Resistance and Petitions, among other charges. The conduct report was based on an investigation Radtke oversaw regarding the Gangster Disciples actively recruiting at Waupun. During the investigation, Radtke obtained sworn statements from three confidential informants who testified that Wheeler held a leadership position in the Gangster Disciples at the institution and was engaging in gang activity.[3] Wheeler was found guilty of the charges and he was disciplined by being removed from general population. Once his disciplinary separation ended, Wheeler was put in an administrative confinement status that kept him out of general population and prevented him from continuing gang activity.

         Wheeler challenged Conduct Report 2303800 in Dane County Case Number 13-CV-2390, State ex. rel. Fredrick Jones and Tingia Wheeler v. William Pollard. On April 16, 2014, Dane County Circuit Court Judge Frank Remington affirmed the finding of guilt. Judge Remington found that the three confidential informant statements corroborated one another, and provided sufficient evidence to support Wheeler’s guilt.

         C. Mail Monitoring Investigation

         Around April 2014, Waupun staff learned through monitoring Wheeler’s mail that he was engaging in efforts to identify the confidential informants who gave statements against him for Conduct Report 2303800. At the time this issue arose, Captain Radtke decided that the best course of action was to investigate Wheeler’s actions by monitoring his mail, and by monitoring the mail of inmates he contacted to assist him in outing informants. Radtke decided to monitor Wheeler’s mail in lieu of immediate action because she believed the benefit of doing so outweighed any potential risks. By monitoring Wheeler’s mail prison staff could gain valuable information about his intentions, plans, potential gang activity, and inmates who were helping him. Waupun staff could also learn which inmates were aligned with Wheeler or on good terms with him by evaluating the responses received.

         Radtke decided against putting Wheeler on notice that Waupun staff were aware of his actions because that would likely cause him to use a method they could not monitor as effectively, such as in-person communications with other inmates, to out perceived informants. At the time, Radtke believed the risk of potential harm from letting Wheeler continue his letter writing campaign was somewhat remote. The information Wheeler had about who informed on him was inaccurate. Additionally, his information about the inmates he identified as informants was also largely inaccurate. The inaccuracies ranged from identifying inmates who did not exist, to having the wrong location. When Wheeler inaccurately named an actual inmate as one of the informants in his letters, Radtke took steps to make sure that harm was unlikely. Radtke made sure that the inmates he named were a safe distance from Wheeler. She also had them interviewed by officials at their institution to inform them of Wheeler’s actions, and to make sure they did not have any concerns about their safety.

         Between April and July 2014, Wheeler made intensive efforts through his letters to determine the identities of inmates he believed were his confidential informants. He wrote letters to other inmates throughout the Wisconsin Prison System, and in the community. In his letters, Wheeler labeled the perceived informants as “snitches,” “coward,” “fag ass niggas,” “rats,” and “fuck niggas.”

         In one letter, he states “I can never be paroled with the allegations that I’m some kind of gang leader. I can’t win in court even with my intelligence. The only way to win is by hook or crook just like these white folks are playing it.” (8/31/16 Radtke Decl., ¶ 13; Dkt. 39-2, Ex. B, p. 5.) Wheeler’s letters showed that he was engaging in efforts to strong arm perceived informants into recanting any prior statements. At the same time, he was also seeking retribution against the informants, especially if they would not give him what he wanted. For example, in one letter he wrote the following about Steward Williams, a perceived informant:

I’ve written this nigga twice to no avail & it’s time to play the game. Bruh if I can’t never be free then let this bitch ass nigga sleep in the bed with the same motherfuckas that he got in bed with. He must be on parole because you don’t go from Waupun to the streets and don’t have no papers. The white girl said get on & put his name Steward Earl Williams [address listed] & his landline and next of kin will pop up. If he has a job, he should lose it if people are continuously calling him. If he’s got a bitch, she should know he’s a weak ass bitch ass nigga. To be publically ridiculed & shamed could convince him to do right. If worse comes, check to see if he’s on the bracelet. If not, could you or someone ride up to Madison & then report a two eleven? That would be sweet music to my ears.
In this instance – social media (Facebook, Instagram, Twitter) is our friend. The police are our friends this time – it’s only fitting if we can’t get what we need – then we flip the script on his bitch ass. …

         (8/31/16 Radtke Decl., ¶ 14; Dkt. 39-2, Ex. B pp. 5-6.) “Two eleven” is a common code word for robbery.

         In another letter Wheeler stated:

The only way to beat a CI statement is recantation. This fuck nigga “Will” just got out on Parole. Jamil wrote me & told me that he got down on John Brown at Stanley & that’s why he was here so he’s positively one of my three. I’m gonna drive on juice next week, also I wrote him & that wasn’t persuasive so since he’s on parole he gotta have a P.O. so we’re going that route. Little Bruh said if you are in the club then you’re facing revocation. We need every asset that we got in Madison bruh. See what your connects can do. Without that recantation then we stuck here.

         (8/31/16 Radtke Decl., ¶ 15; Dkt. 39-2, Ex. B, p. 16.)

         At one point, Wheeler sent an affidavit he wrote for “Steward Williams” to a third inmate to be passed to his sister. In the letter included with that affidavit he wrote:

Tell her this is ole boy who pulled that dirty mack move on me. He’s out on papers and I need that affidavit in the next 14 days. If I can’t be free then why should he be? She should contact community corrections (Parole Officer) or ...

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