United States District Court, E.D. Wisconsin
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
PAMELA PEPPER United States District Judge.
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.
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.
Conduct Report #2085566
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!!
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.
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.
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.
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
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
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.
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.
Disciplinary Hearing of Conduct Report #2085566
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.
plaintiff attended the hearing and made the following
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 ...