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Walker v. Pitzen

United States District Court, E.D. Wisconsin

August 28, 2017

LAMONT WALKER, Plaintiff,
v.
KEVIN PITZEN, CHAD KELLER, BRIAN FRANSON, AND DON MORGAN, Defendants.

         ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 16), GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 22), DENYING AS MOOT PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 37), GRANTING PLAINTIFF'S MOTION FOR A DECISION AND ORDER (DKT. NO. 39), DENYING AS MOOT PLAINTIFF'S MOTION TO COMPEL (DKT. NO. 40) AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff Lamont Walker is a Wisconsin state prisoner representing himself. He alleges that the defendants retaliated against him after he filed a lawsuit against defendant Chad Keller and other correctional officers. The plaintiff has filed a motion for summary judgment, dkt. no. 16, as have the defendants, dkt. no. 22. For the reasons explained below, the court will deny the plaintiff's motion, grant the defendants' motion, and dismiss this case.

         I. RELEVANT FACTS[1]

         A. Parties

         The plaintiff was an inmate in the custody of the Wisconsin Department of Corrections housed at the Columbia Correctional Institution (Columbia) at the time relevant to his claims. Dkt. No. 24 at ¶1. The defendants worked at Columbia at all times relevant-defendant Kevin Pitzen as a correctional officer, id. at ¶2, Chad Keller and Brian Franson as captains, id. at ¶4, and Don Morgan as an administrative captain, id. at ¶6. Morgan and Franson also served as due process hearing officers. Id. at ¶8.

         B. Conduct Report #2085566

         On October 7, 2010, Captain Keller received a letter addressed to Security Director Nickel with the name of inmate Brandon Wingo on the envelope. Id. at ¶10. On October 8, 2010, Captain Keller gave Officer Pitzen a copy of the letter. Id. ¶11. The letter stated in part:

But you've been trying to escape me but I'm going to get out and wait for you to get off work and kidnap you and stick my dick in your pink azz pussy suck your pretty tities and grip your big azz round booty . . . . after I'm done I'm gone shoot you in the head with my gun ha! Ha! Ha! . . . I go home less than 30 days, do something if you want to I'll kill you . . . . Just give me the pussy bitch!!

Id. ¶12.

         Captain Keller was responsible for investigating the letter. Id. at ¶13. When Security Director Nickel gave him the letter, she told him that she believed that it could be from the plaintiff, because she recognized the handwriting and believed it to be similar to the plaintiff's. Id. at ¶14. The goal of Captain Keller's investigation was to determine who wrote the letter. Id. at ¶15. During the investigation, he confiscated several pieces of paper with handwriting on them from the plaintiff's cell, which was located across the hall from inmate Wingo. Id. at ¶16.

         Officer Pitzen assisted Captain Keller in analyzing the handwriting from the letter and from the pieces of paper from the plaintiff's cell. Id. at ¶18. Captain Keller had received training on handwriting analysis, and he determined that the handwriting of the letter to Security Director Nickel was consistent with the handwriting of the plaintiff's papers from his cell. Id. at ¶¶18-21. Particularly, there was similar construction of the letters “s” and “c.” Id. at ¶20. Captain Keller and Officer Pitzen also noted that inmate Wingo's first name was misspelled on the envelope, which led them to believe that Wingo did not actually write the letter, because they anticipated that someone would spell their first name correctly. Id. at ¶¶22-23. Based on the investigation, Captain Keller concluded that it was more likely than not that the plaintiff wrote the letter to Security Director Nickel, due to (1) the consistency of the handwriting between the letter and the plaintiff's papers, (2) the close proximity of the plaintiff's cell to Wingo's cell, and (3) the unlikelihood that Wingo would misspell his own first name. Id. at ¶24. Therefore, Captain Keller directed Officer Pitzen to write a conduct report to the plaintiff for violating institution rules. Id. at ¶25.

         On October 8, 2010, Captain Keller told the plaintiff that he would be receiving a conduct report for threats, sexual conduct and disrespect based on the letter to Security Director Nickel. Dkt. No. 19 at ¶3. The plaintiff responded that he didn't do anything wrong and that he didn't write the letter. Id.

         On October 8, 2010, Officer Pitzen issued the plaintiff Conduct Report #2085566 for violation of Wis. Admin. Code §§ DOC 303.15(1)(c) (sexual conduct), 303.16 (threats), and 303.25 (disrespect). Dkt. No. 24 at ¶27; Dkt. No. 19 at ¶4. Captain Keller and Officer Pitzen had no further involvement in the matter. Dkt. No. 24 at ¶28.

         When Officer Pitzen issued the plaintiff the conduct report, he was not aware of any lawsuits that the plaintiff had filed against him, Captain Keller or other institution staff. Id. at ¶¶29-30. Officer Pitzen wrote the conduct report based on the finding that the plaintiff had written the letter making statements of sexual conduct and threats to kill Security Director Nickel. Id. at ¶31.

         Captain Keller investigated the statements in the letter because, as captain, he was required to investigate all possible rule violations that came to his attention. Id. at ¶36. Captain Keller directed Officer Pitzen to write the conduct report because he concluded that the plaintiff had written the letter making statements of sexual conduct and threats to kill Nickel. Id. at ¶37.

         Captain Higbee reviewed the conduct report and decided that it could proceed as a major offense, noting that the plaintiff previously had been found guilty of the same or similar offenses. Id. at ¶38.

         C. Disciplinary Hearing of Conduct Report #2085566

         Captains Franson and Morgan were the assigned hearing officers at the November 1, 2010, disciplinary hearing on Conduct Report #2085566. Id. at ¶¶41-42 As the hearing officers, Franson and Morgan reviewed all of the testimony and evidence, and made a credibility determination as to whether the alleged rule violation “more likely than not” occurred. Id. at ¶¶43-49.

         The plaintiff attended the hearing and made the following statement:

I didn't write that letter. I wrote those other ones, but that's not my handwriting on the letter in the ticket. I've got distinctive handwriting. Keller is a defendant in my civil suit and that's why he did this. The ticket said the name was misspelled. That's impossible I couldn't misspell the name of a guy who lives across the hall from me. The advocate refused to answer some ...

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