United States District Court, E.D. Wisconsin
DECISION AND ORDER
E. JONES, UNITED STATES MAGISTRATE JUDGE.
Taran James, a Wisconsin state prisoner who is representing
himself, filed a civil rights action under 42 U.S.C. §
1983, alleging that defendants violated his Fourteenth
Amendment rights at the Oshkosh Correctional Institution. On
August 9, 2016, the Court screened the complaint and allowed
Mr. James to proceed with two procedural due process claims:
(1) Defendants James Zannon, Stan Doman, and Kathy Sabel
denied Mr. James's request to see full statements from
four confidential informants, and (2) Defendant Mark
Weisgerber denied Mr. James's request for three
additional inmate witnesses for his disciplinary hearing.
(ECF No. 34 at 9 and 11).
matter comes before the Court on cross-motions for summary
judgment. (ECF Nos. 42 and 58). For the reasons discussed
below, the Court will grant defendants' motion for
summary judgment and will dismiss the case.
time relevant to this matter, Mr. James was an inmate at
Oshkosh Correctional Institution ("Oshkosh"). (ECF
No. 77, ¶ 1.) Defendants were employees at Oshkosh:
James Zanon was Captain in the Segregation Unit
(id., ¶ 2); Stan Doman was Lieutenant in the
Segregation Unit (id., ¶ 3); Kathy Sabel was
Unit Supervisor (id., ¶ 4); and Mark Weisberger
was Security Director (id., ¶ 5).
22, 2013, Mr. James received Conduct Report #2347074 for
"inciting a riot." (Id., ¶¶ 6-7;
see also ECF No. 55-1). According to the conduct
report, Mr. James allegedly participated in an anonymous
letter to the Warden, which stated that "actions will be
taken by all inmates in the 'very near' future which
will cause for the lock down of this institution." (ECF
No. 77, ¶7; see also ECF No. 56-2 at 1). The
letter notified the Warden that correctional staff often
failed to follow "DAI policy" on disciplinary
matters and failure to remedy the problem "will receive
an aggressive response." (ECF No. 56-2 at 1). The letter
also stated that inmates "will not comply with any work,
schooling, or programing" until there was a solution.
(Id. at 3)
with the conduct report, Mr. James received a document
entitled "Notice of Major Disciplinary Hearing
Rights." (ECF No. 77, ¶ 8). The document explained
that Mr. James could request two eye-witnesses and a staff
member witness at his disciplinary hearing. (Id.) It
also explained that Mr. James would need "good
cause" to call more than two eye-witnesses.
James timely requested inmates Milton Brown and David Gatlin
as eyewitnesses and Unit Manager Chris Kuchinski as character
witness. (Id., ¶ 9; see also ECF No.
55-1 at 7). Mr. Doman approved the inmate witnesses but
denied the request for Unit Manager Kuchinski, concluding
that his testimony would be irrelevant to the issue in the
conduct report. (Id., ¶ 12; see also
ECF No. 55-1 at 7).
to Mr. James, he then sent a letter to his staff advocate,
Neyhard, and to Mr. Weisgerber requesting three more inmate
witnesses for his disciplinary hearing: Michael Shelton,
Cortez Kennedy, and Darwin McKnight. (ECF No. 81,
¶¶ 1-2). Inmate Shelton "would have admitted
sending the letter to the Warden;" inmate Kennedy
"would have admitted to previously being found guilty of
the same letter being sent to the Warden;" and inmate
McKnight "would have corroborated the fact that Mr.
James had no part or motive to be involved."
(See ECF No. 74 at 11).
to Mr. Weisgerber, he never received any letters requesting
additional witnesses, and even if he had, he would have
directed the requests to the segregation supervisor who was
responsible for reviewing witness requests. (ECF No. 77,
¶¶ 10-11, 15, 18-19). To the best of Mr.
Weisgerber's knowledge, no circumstances existed that
would have warranted adding witnesses beyond the allotted
two. (Id., ¶ 20).
August 6, 2013, Mr. Zanon, Ms. Sabel, and Mr. Doman
("the Committee") held the disciplinary hearing for
Conduct Report #2347074. (Id., ¶25). The Committee
reviewed the following evidence: (a) the conduct report
(see ECF No. 55- 1 at 1-3), (b) the anonymous letter
sent to the Warden (see ECF No. 56-2), (c) four
confidential informant statements (see ECF No. 28;
see also ECF No. 55-1 at 8), (d) a written statement
by Mr. James (see ECF No. 55-1 at 15-17), and (e)
testimony from inmate Gatlin and inmate Brown denying Mr.
James's involvement in the incident (id. at 5).
(Id., ¶ 28).
regard to the four confidential informant statements, Mr.
Zanon believed that the physical safety of the informants
would be jeopardized if their identities were released.
(Id., ¶ 38). According to Mr. James's
complaint, the "Gangster Disciples" may have been
involved in the non-work sit down. (ECF No. 35 at 17, ¶
13). Mr. Weisgerber explained that there was no way to redact
the confidential informant statements in a way to ensure that
Mr. James would not be able to identify those individuals.
(ECF No. 27, ¶ 4). Thus, Mr. James received a copy of
DOC-78A "Summary of Confidential Informant Statements,
" a document used to summarize information from a
confidential informant without revealing the informant's
identity. (ECF No. 77, ¶ 39).
summary of the confidential informant statements indicated
that informants #1 and #3 implicated Mr. James and inmate
Brown in the letter to the Warden. (ECF No. 55-1 at 8;
see also ECF No. 28). Informants #2 and #4
implicated Mr. James, inmate Brown, and inmate Gatlinin the
letter to the warden. (Id.) Earlier in the
litigation, the Court conducted an in camera review
of the confidential informant statements and agreed that
defendants' need to maintain prison security was greater
than Mr. James's need to possess the statements. (ECF No.
34 at 2-3). It also noted that the summaries were an accurate
reflection of what the confidential informants had stated.
regard to Mr. James's written statement, he argued that
the institution could not "prove guilt by a
preponderance of the evidence." (ECF No. 55-1 at 15-17).
He explained that inmates Shelton, McKnight, and Kennedy were
all accused of the same crime, yet the confidential informant
statements did not mention any of their names. (Id.
at 16). Mr. James also explained that there was no
handwriting sample or DNA to prove his participation in the
letter. (Id. at 17.)
James then made an oral statement at the disciplinary hearing
denying his involvement in the letter and reiterating the
arguments from his written statement. (ECF No. 77,
¶¶ 27-29). According to Mr. James, he asked to call
inmates Shelton, McKnight, and Kennedy as witnesses but the
committee denied the request. (Id., ¶ 30).
According to defendants, Mr. James never made an oral request
for additional witnesses, and if he had, there would have
been a notation on the record showing that they denied the
request. (Id., ¶ 33).
Committee found Mr. James guilty of inciting a riot.
(Id., ¶ 41). It noted that Mr. James argued
technicalities about the evidence, i.e., that there
was no DNA evidence or handwriting samples to prove his
involvement, rather than generally denying guilt or providing
alternative facts. (ECF No. 55-1 at 4). Further, the
allegations in the confidential informant statements were
"quite specific" as to the inmate involved and the
steps that inmate took to organize the work stoppage.
(Id. at 4-5). Mr. Zanon stated that the statements
were taken "independently of one another" and
"corroborated each other." (ECF No. 77, ¶ 40).
The Committee noted that Mr. James's two witnesses
(inmate Brown and inmate Gatlin) were identified as
co-conspirators, and thus their testimonies at the
disciplinary hearing were less credible. (ECF No. 55-1 at 4).
The warning letter to the Warden also threatened an
"aggressive response, immediately." (Id.)
Therefore, the Committee found Mr. James guilty of inciting a
James received 360 days in disciplinary separation. (ECF No.
77, ¶ 42). He timely appealed the decision, and the
Warden affirmed the finding of guilt. (Id.,
¶¶ 44-46). The Department of Corrections
("DOC") then reviewed his file for possible
transfer to the Wisconsin Secure Program Facility
("WSPF"). (Id., ¶ 47). Mr. James