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Wilks v. Rose

United States District Court, E.D. Wisconsin

March 28, 2017

TIMOTHY B. WILKS, Plaintiff,


          C. N. CLEVERT, JR. U.S. District Judge.

         Plaintiff, Timothy B. Wilks, is proceeding on claims that the defendants' decisions to deny him the opportunity to possess and mail postcards for use in marketing his published book and/or to sell his published book outside the Waupun Correctional Institution violate his First Amendment rights.[1] This matter is now before the court on plaintiff's motion for judgment on the pleadings and cross motions for summary judgment.


         On September 13, 2016, plaintiff filed a motion for summary judgment and a motion for judgment on the pleadings. In the motion for judgment on the pleadings, plaintiff argues that the court should strike defendants' answer (filed March 18, 2016) because it violated Federal Rule of Civil Procedure 8(b). He cites several provisions of Federal Rule of Civil Procedure 12. While Rule 12(c) addresses motions for judgment on the pleadings, plaintiff really wants the court to strike defendants' answer as deficient under Rule 12(f).

         As an initial matter, a party must bring a motion to strike under Rule 12(f) “within 21 days after being served with the pleading.” Plaintiff suggests that the court's Scheduling Order, of March 22, 2016, modified that deadline by providing a later deadline for motions under Rule 12 and Rule 56. However, the Scheduling Order mentions “motions to dismiss” under Rule 12, not motions to strike. (Doc. 11.) In any event, for the reasons discussed below, defendants' answer is sufficient.

         Plaintiff submits that defendants failed to “state in short and plain terms” their defenses to plaintiff's legal claims, which were set forth in paragraphs fourteen to eighteen of plaintiff's complaint. See Fed. R. Civ. P. 8(b)(1)(A). He argues that he was forced to speculate regarding defendants' defenses in pursuing summary judgment because the answer was insufficient. Regardless, notice pleading under the Federal Rules of Civil Proceedings does not require parties to plead legal theories, and there is no indication that plaintiff served formal discovery requests in this case, or informal inquiries about the specifics of defendants' defenses.

         Plaintiff also contends that defendants' affirmative defenses were conclusory and insufficient. However, the affirmative defenses were appropriately set forth at the pleading stage; defendants must err on the side of including certain defenses in their answer to preserve their right to pursue those defenses later in the case. Usually, defendants must prepare their answers and choose their affirmative defenses before they have the opportunity to investigate a plaintiff's claims or conduct discovery to determine whether certain defenses apply. Also, as defendants argue, of the affirmative defenses raised in their answer, they are pursuing only qualified immunity in their motion for summary judgment.


         A. Undisputed Facts[2]

         1. Parties

         Plaintiff Timothy Wilks has been incarcerated at Waupun Correctional Institution (Waupun) since February 3, 1992. Defendants Craig Coda, John Dahlke, Linda Alsum-O'Donovan, Meli, and Muenchow were all employees of the Wisconsin Department of Corrections (DOC) who worked at Waupun in 2014. Coda was a correctional officer whose duties included processing incoming packages, Dahlke was a Property Sergeant, Alsum-O'Donovan was the Program Support Supervisor, Meli was the Security Director, and Muenchow was an Institution Complaint Examiner. Defendant Welcome Rose worked at the DOC's Central Office in 2014 as a Corrections Complaint Examiner.

         2. Plaintiff's Earlier Lawsuit Settlement

         In 2008, plaintiff sued several Waupun staff members alleging the prison's interference with his efforts to publish religious books he had written violated his rights under the First Amendment's free exercise and freedom of speech clauses, the Fourteenth Amendment's equal protection clause, and the Religious Land Use and Institutionalized Persons Act. This lawsuit was settled in 2010. The terms of the settlement included an agreement that Waupun or DOC personnel would review the books plaintiff wanted to publish and an agreement that plaintiff would be permitted to publish his current and future books if the content (1) did not revictimize the victim, (2) did not result in him profiting from his crime, (3) was consistent with rehabilitation and treatment, and (4) did not include the type of publication that inmates not receive under Wis. Admin. Code § DOC 309.05(2)(b). On August 3, 2010, then Waupun Warden Thurmer wrote to plaintiff and advised him that his three written works had been reviewed and could be sent to a publisher.

         The settlement agreement also provided that Waupun and/or the DOC would develop a policy that would guide staff members in making publication decisions in the future. In 2011, Waupun adopted a written procedure that provided inmates with guidelines for writing and seeking publication of written works. The Waupun publishing policy provides that “[a]n inmate may prepare a manuscript . . . while in the custody of the Department of Corrections.” (Doc. 27, ¶ 18.) The policy defines “publish” as “[t]he process of production and dissemination of literature or information-the activity of making information available for public view.” Id. ¶ 19. The policy states that any inmate who receives payment from a publication must direct the payment to the Institution Financial Program Supervisor and otherwise comply with state law regarding inmate deposits and trust accounts.

         Waupun may not prohibit publication of a manuscript on the basis of its general appeal to a particular ethnic, racial, or religious audience, or because of the political beliefs expressed therein. The policy states that an inmate whose manuscript has been approved by the institution may submit unsealed mailings of manuscripts to a staff member designated by the warden to oversee the publication process, with appropriate disbursements. The receipt of publications, including publications authored by other inmates, is governed by DOC 309.04 and 309.05. That an inmate's manuscript has been published does not mean that the manuscript will be approved for receipt by other inmates. Additionally, inmates who author publications may not encourage other inmates to purchase their publications. The policy says: “General correspondence with individuals outside the prison about an inmate's writing is allowable provided it does not attempt to circumvent prison rules regarding inmate publication.” (Doc. 27, ¶ 25.)

         3. Plaintiff's Publication Contract

         In April 2011, plaintiff entered a “Print on Demand Publishing Agreement” with RoseDog Books, a publishing company that charges authors a fee to perform services including printing and limited promotional activities. Id. ¶ 26. The contract pertained to plaintiff's book entitled, “The Holy Ghost Christ's Past, Present, and Future Revelations of the Holy Spirit-God's Eternal Life Evolution.” Id. ¶ 27. Under the contract, RoseDog agreed to create and print three hundred full-color direct-mail marketing postcards that contained a copy of the book's cover image and back “ad copy” (About the Author and About the Book information) along with the book ordering information. RoseDog would mail up to two hundred of the postcards to the author's personal mailing list, send the author a personal supply of the direct mail pieces, and keep the balance of the three hundred postcards for possible future use.

         4. Marketing Postcards

         In 2014, RoseDog Books mailed plaintiff one hundred book marketing postcards. The mail room at Waupun received the postcards but withheld them from plaintiff as contraband. On September 16, 2014, plaintiff received a notice signed by Coda indicating that marketing postcards sent to plaintiff by RoseDog Books had been deemed contraband and would not be allowed in the prison. Per DOC policy regarding disposal of contraband, plaintiff was instructed to choose a method of disposal of the marketing postcards. Plaintiff initially chose to ship the property out to a civilian but later changed his mind and indicated that he desired that the property be held pending his filing of a grievance challenging the contraband designation.

         On September 17, 2014, plaintiff submitted an Information Request asking that he be allowed to have the marketing postcards. Dahlke responded on September 18, 2014, stating that the items were not allowed because they were “a fill in the blank order form.” (Doc. 27, ¶ 32.)

         Plaintiff submitted another Information Request on September 19, 2014, disputing Dahlke's characterization of the forms as “fill in the blank order forms.” Id. ¶ 33. Alsum-O'Donovan responded on September 22, writing:

If you have non-inmate persons you want to send the cards to, you can address your embossed [postage paid] envelopes and [the Property Department] can mail them out individually. Nothing in property or mail policies allows inmates to have their own advertising or promotional materials.

Id. Alsum-O'Donovan initially averred that she intended her response to be a compromise under which plaintiff would be allowed to send his promotional materials to someone outside the prison for mailing to potential customers. He would not be allowed to possess the marketing postcards within the institution or to mail the postcards directly to customers from the institution.

         Alsum-O'Donovan was concerned that if the marketing postcards were counted as correspondence, plaintiff could only have twenty-five cards and no other letters in his property. She was also concerned that Waupun staff would find the postcards in the possessions of other inmates because they are easy for plaintiff to distribute within the institution, even though that is prohibited under Waupun's publishing policy.

         Plaintiff interpreted Alsum-O'Donovan's proposal as suggesting that he could address the one hundred envelopes in his cell and mail room staff would stuff the marketing postcards into the envelopes and mail them for him. In plaintiff's view, this would avoid the problem of having the postcards in his cell and potential distribution within the institution.

         Alsum-O'Donovan understood that plaintiff claimed to need the postcards to advertise the books, he had previously been allowed to publish. She was trying to find a way for plaintiff to advertise his books that would follow the rules about not advertising to other inmates. Alsum-ODonovan believed she was doing plaintiff a favor by coming up with the ...

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