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Smith v. Pollard

United States District Court, W.D. Wisconsin

September 5, 2017

JAMES A. SMITH, JR., Plaintiff,



         Pro se plaintiff James Smith is proceeding on Eighth Amendment claims against defendants William Pollard and Edward Wall for the manner in which they responded to his reports that he was being sexually assaulted and threatened with sexual assault. According to Smith, both defendants failed to protect him from sexual assault and threats of sexual assault and failed to follow the requirements of the Prison Rape Elimination Act (PREA). Pollard and Wall filed separate motions for summary judgment, contending first that Smith failed to exhaust his administrative remedies, and second, that the record would not permit a reasonable fact-finder to infer deliberate indifference. For the reasons that follow, I am granting both motions and closing this case.


         I. Parties

         On November 20, 2014, plaintiff James Smith was transferred to Waupun Correctional Institution (Waupun) from Dodge Correctional Institution. Smith remained incarcerated at Waupun until December 20, 2016 when he was released and placed on extended supervision. (Smith recently was reimprisoned because he violated his terms of supervision).

         Defendant William Pollard is employed by the Wisconsin Department of Corrections (DOC), and served as Waupun's warden from March 2011 until January 9, 2016, when he became the warden at Dodge. So, Pollard and Smith were both at Waupun from November 20, 2014, through January 9, 2016.

         As warden, Pollard was responsible for the overall administration and operation of Waupun, which included implementing DOC policies, relevant statutes and applicable judicial decisions at an institutional level. With respect to the Prison Rape Elimination Act (PREA) and the Inmate Complaint Review System (ICRS), Pollard relied on his staff to conduct thorough investigations and to comply with the law.

         Defendant Edward Wall was the Secretary of the DOC from October 27, 2012, until February 27, 2016. As secretary, Wall had general supervisory authority over DOC operations, but he did not provide day-to-day supervision of DOC institutions because he deferred those types of decisions to DOC staff working at those institutions. When Wall was secretary, his office reviewed letters that inmates wrote to Wall. Generally, Wall did not read those letters himself and delegated the task of responding to those letters to the relevant DOC division. Wall had no involvement in any of Smith's written offender complaints. Smith alleges that in January of 2015 Wall sent him a letter telling him to direct sexual harassment and assault concerns to the Special PREA Investigator Chief; Wall has no recollection of that letter.

         II. PREA Reporting System

         The Prison Rape Elimination Act (PREA) was enacted to address the problem of sexual assault and harassment in prisons. DOC accordingly provides various means by which inmates can report sexual assault and harassment and implements procedures to properly review such reports. Specifically, the warden at each institution appoints a PREA compliance manager, who assigns PREA complaints to investigators who are tasked with following up on the complaint and reporting back. When a PREA complaint involves a potential crime, DOC staff inform local law enforcement, which can investigate the complaint independently.

         During the relevant time period, Security Director Anthony Meli worked as Waupun's PREA compliance manager. Pollard's role in PREA investigations was to ensure compliance with PREA in general, ensure that Meli was properly assigning PREA complaints to investigators, and review the final investigation for appropriateness and outcome. In addition to handling PREA investigations on a day-to-day basis, Meli also was responsible for responding to the letters Smith wrote to Pollard that included PREA-related allegations. Pollard delegated this task to Meli because his office receives a substantial number of letters on a regular basis and Meli's responsibilities were related to Smith's complaints. Pollard never learned from his subordinates that Smith's complaints were not being properly investigated or that Meli was ignoring Smith's complaints.

         III. Smith's PREA Investigations

         Between 2014 and the beginning of 2016, Smith's complaints to Waupun staff resulted in three different PREA investigations.[1]

         A. PREA #2253-14

         When Smith arrived at Waupun in December of 2014, PREA investigation #2253-14 was initiated after he reported to a doctor that an inmate at Dodge overpowered him and grabbed his genital area. Meli assigned investigators to this complaint and filled out a form that documents that DOC informed law enforcement about the complaint. The investigation was transferred to Dodge because that was where the incident occurred. Apparently Dodge staff and outside law enforcement investigated and closed the matter.

         According to Smith, on December 11, 2014, Lieutenant Arndt from Dodge, and Lieutenant Lutt from Waupun, both interrogated him about his allegations. Smith claims that they threatened and intimidated him during this interview. Smith further claims that other inmates learned about the sexual assault and harassed him for complaining about it. In December 2014, Smith sent Pollard two letters about that incident. Pollard admits that he reviewed those letters, but did not have any other involvement with the investigation or disposition of PREA #2253-14.

         B. PREA #2299-15

         On December 30, 2014, Smith submitted an interview request slip to Sergeant Jeffrey Perry. In it, Smith reported that he woke up and saw his cellmate, Hiler, lying on a table, masturbating, and looking at him. Perry then provided Smith a telephone and encouraged him to call the PREA hotline, but Smith refused. Perry also notified Captain Westra and gave him Smith's request slip. Finally, Perry removed Hiler from Smith's cell and moved Hiler to another cell hall.

         On January 6, 2015, PREA investigation #2299-15 was initiated, outside law enforcement was contacted, and PREA investigators were assigned to investigate the December 30 complaint. However, records of the investigation show that Smith refused to be interviewed and Hiler denied Smith's allegations in his complaint. There were no other witnesses to the incident. For his part, Smith claims that he was “arrested, cuffed, and taken back to the conference room for an ...

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