Christopher S. Streckenbach, Plaintiff-Appellant,
Charles VanDensen, et al., Defendants-Appellees.
August 8, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 15-C-451 - Rudolph T. Randa,
Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge.
November 2014 Christopher Streckenbach, an inmate of
Redgranite Correctional Institution in Wisconsin, left two
boxes of personal property for his son to pick up. Under the
prison's policy, property on deposit had to be collected
within 30 days. If that did not occur, the prison's staff
was to ship the property to someone the inmate had
designated. But if the inmate's account did not have
enough money to cover shipping costs, the property was to be
destroyed. The policy warned inmates that they were
responsible for ensuring that their accounts had enough money
on the 30th day. Streckenbach's son did not retrieve the
boxes within the allotted time, and Charles VanDensen, the
sergeant in charge of the mailroom, calculated a shipping
cost of about $9.50, some $2 more than Streckenbach had
available. VanDensen had the property destroyed. Streckenbach
could have covered the shipping costs had he planned for this
expense and anticipated the possibility that his son would
contends in this suit under 42 U.S.C. §1983 that
VanDensen violated the Due Process Clause of the Fourteenth
Amendment by destroying his property without notice. He
maintains that the policy, which Redgranite's warden
promulgated in 2013, had not been communicated to the
prisoners. Streckenbach contends that he did not see it on
the bulletin board (he asks the court to infer that whatever
he didn't see was not there), that the prison's
library had only an older policy, and that the officer who
received his boxes failed to calculate the shipping charges
and warn him that he must maintain that amount in his
account. According to Streckenbach, the older policy he read
in the library provided that, if the property was not picked
up within 30 days, the staff would ask the inmate how he
wanted to proceed. VanDensen did not do that and,
Streckenbach contends, thereby violated the Constitution.
district court granted summary judgment to VanDensen, giving
two reasons. 2016 U.S. Dist. Lexis 36994 (E.D. Wis. Mar. 21,
2016). The first is that the complaint did not specify the
legal theories that Streckenbach relied on to op- pose the
motion for summary judgment, and the second is that VanDensen
has qualified immunity. Neither of those reasons suffices.
Complaints need not plead law or spell out theories of
liability. Johnson v. Shelby, 135 S.Ct. 346 (2014).
And immunity depends on legal uncertainty. The proposition
that property owners, including inmates, are entitled to
notice before their property is destroyed has been
established for a long time. See, e.g., Zinermon v.
Burch, 494 U.S. 113, 132 (1990); Montanez v.
Secretary, Pennsylvania Department of Corrections, 773
F.3d 472, 484 (3d Cir. 2014).
problem with holding VanDensen liable is different: it is
that he was not responsible for giving notice. The policy
called for general notice by posting and specific notice by
calculating shipping costs when property was delivered for
pickup. We must accept Streckenbach's contention that
both means of notice failed in his situation. But that
failure cannot be blamed on VanDensen. He was not responsible
for managing the bulletin board or the library, and he was
not the guard who received the boxes and failed to calculate
the shipping charges. All VanDensen did was carry out the
policy after no one collected the boxes within 30 days.
Streckenbach does not contend that VanDensen miscalculated
the shipping charges or the balance in his account. Errors
occurred, to Streckenbach's detriment, but they were not
VanDensen's errors, and he is not vicariously liable for
other persons' mistakes. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662, 675-77 (2009); Vance v.
Rumsfeld, 701 F.3d 193, 203-05 (7th Cir. 2012) (en
maintains that VanDensen did make one mistake: when looking
over the paperwork, he should have noticed that the file
lacked a shipping-cost calculation made when the boxes were
received; from this absence, Streckenbach insists, VanDensen
should have inferred that the guard who received the property
failed to alert Streckenbach to the 2013 policy's
workings. That's not an inevitable inference. VanDensen
might have thought that the guard who received the boxes had
notified Streckenbach but failed to fill out all forms. It
does not matter which inference is appropriate-or indeed
whether VanDensen noticed, or should have noticed, the
omission. For this aspect of Streckenbach's argument
accuses VanDensen of negligence, and negligent bureaucratic
errors do not violate the Due Process Clause. Daniels v.
Williams, 474 U.S. 327, 336 (1986).
the remedy (the "process due") for careless
blunders that destroy property is litigation, under state
law, to recover the property's value. See, e.g.,
Parratt v. Taylor, 451 U.S. 527 (1981), applied by
Hudson v. Palmer, 468 U.S. 517, 530-36 (1984), to
the intentional but mistaken destruction of prisoners'
property. And that litigation need not be against the person
who made the mistake, a person who might have immunity as a
matter of state law even if not as a matter of federal law.
See Wis.Stat. §893.80(4) (immunity for state employees
who act within the scope of their duties); but see Pries
v. McMillon, 2008 WI.App. 167 ¶17 (no immunity for
negligent performance or omission of ministerial duties).
Wisconsin allows many kinds of tort claims against the state.
Wis.Stat. §893.51(1) (claims dealing with destruction of
personal property), §893.80(1d) (waiver of immunity).
The state requires a claim to be filed with the Attorney
General within 120 days of the loss, Wis.Stat.
§893.82(3), and Streckenbach missed that deadline, but
VanDensen cannot be blamed- nor can a would-be plaintiff
avoid Parratt by waiting until a state deadline has
passed before filing a federal suit. Even after missing the
deadline, Streckenbach has potential state-law remedies
against the responsible persons under the theory of
Pries, though not against the Department of
Corrections. See Mayhugh v. Wisconsin, 2015 WI
77 (July 10, 2015).
complaint included as defendants several state employees in
addition to VanDensen. The district court dismissed all of
the additional defendants at the screening stage, ruling that
they were not responsible for the mistakes made by the
prison's staff and could not be held vicariously liable
for those errors. Streckenbach asks us to remand to allow
further proceedings against the defendants who were warden,
and deputy warden, of Redgranite in 2013, when the policy was
adopted. Administrators might be deemed liable for the
consequences of an unconstitutional policy, but the 2013
policy cannot be condemned on the ground that it authorizes
property to be destroyed without notice. The policy itself
provides for notice-both general notice by posting and
specific notice by calculating shipping costs when property
is received for pickup. That it does not provide for a
third notice (after the 30 days have lapsed) does
not call its validity into question. Notice matters only when
there are choices to be made. Once 30 days have run, the
property has not been picked up, and funds to ship it are
unavailable, there's no choice left under the 2013
for Streckenbach told us at oral argument that the warden
could be personally liable because it was foreseeable that
subordinates would make operational errors. But that's
just an argument for vicarious liability. As we have already
explained, the people who make the errors, not the people who
devised the policy, are the ones responsible for those
errors. Every policy, in and out of prison, can be
undermined by operational gaffes. Applications for Social
Security disability benefits may be denied erroneously,
sometimes without hearings, but this does not imply personal
liability for Members of Congress and Administrators of
Social Security who devised the policies being misapplied.
Zoning laws may be misunderstood and lawful development
prevented, producing losses to property owners. People may
engage in costly but unnecessary repairs when inspectors
misread building codes. Yet these errors do not lead to
liability for the persons who wrote the zoning laws or the
building codes. See Vance, 701 F.3d at 203-05
(majority opinion), 209-10 (Wood, J., concurring).
grant that some policies lead to more errors than others. The
more complex the policy, the more occasions for something to
go wrong. The 2013 policy may have been in that category, for
it was replaced in 2015 with a simpler rule that remains in
effect. Under the 2015 policy inmates who want to get rid of
property have two options: ship it at their own expense or
have it destroyed. The option to leave the property for
pickup has been abolished. The new policy eliminates the risk
that inmates will misunderstand their options, since they
must pay shipping costs when they drop off the property. It
also eliminates an option that some inmates found valuable.
Whether the 2015 policy is beneficial for inmates on balance
is not a question we need answer. All we hold today is ...