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Kozlowski v. Rybroek

United States District Court, W.D. Wisconsin

October 31, 2017

GREGORY VAN RYBROEK, et al., Defendants.



         In this civil action under 42 U.S.C. § 1983, pro se plaintiff Gregory Wayne Kozlowski brought First, Fifth, Eighth, and Fourteenth Amendment claims against a number of defendants allegedly involved in restricting his telephone, mail, and visitation privileges in response to his involvement in an escape attempt. In response to defendants' motion for summary judgment as to all claims (dkt. #8), Kozlowski now concedes that judgment should be entered against him as to: (1) his claims against defendants Michael Van Sistene and James Strand, who were involved in responding to Kozlowski's internal grievances; (2) his constitutional claims, other than those sounding under the First Amendment; and (3) his state law claims. (Dkt. #18.) As a result, what remains of Kozlowski's lawsuit are his First Amendment claims against defendants Gregory Van Rybroek, Paul Lane, Richard Schaller, Randy Klas and Patrick Cork, all of which arise out of institutional restrictions placed on his incoming and outgoing mail, calls and visits.

         After considering the parties' summary judgment submissions as to these remaining claims, the court will grant defendants' motion with respect to plaintiff's challenges to restrictions on his incoming mail, calls and visits, while denying their motion as to outgoing mail restrictions. If anything, on the record before the court, plaintiff appears likely to prevail as a matter of law with respect to the restrictions placed on his outgoing mail claims. Conversely, the record does not appear to support plaintiff's claim for punitive damages. Accordingly, pursuant to Fed.R.Civ.P. 56(f), the parties will be given an opportunity to address: (1) why judgment should not be entered against defendants as a matter of law on liability with respect to plaintiff's challenge to restrictions on his outgoing mail; and (2) whether the evidence of record precludes plaintiff from pursuing punitive damages at trial.


         A. Parties

         1. Kozlowski

         During all relevant times, Kozlowski was committed to the Department of Health Services ("DHS") under Wis.Stat. § 971.17, under a Not Guilty by Reason of Mental Disease or Defect ("NGI") Commitment. His NGI is a life commitment and he is currently housed at the Mendota Mental Health Institute ("Mendota"). Kozlowski has been diagnosed with schizophrenia, personality disorder with antisocial features, and substance abuse disorder. He also has a history of psychiatric hospitalizations.

         Since the NGI finding, Kozlowski has been housed at different mental health facilities in Wisconsin, including Mendota from March 1984 to October 1998, and again from April 6, 2014, to the present date. At various times since December 1982, Kozlowski has also been a patient at the Winnebago Mental Health Institute. During his most recent stay at Mendota, Kozlowski was placed in a medium security housing unit -- the Medium Admission and Rehabilitation Unit ("MARU").

         2. Defendants

         Dr. Van Rybroek has worked as the Director at Mendota since August of 2000. Dr. Lane has worked as the Deputy Director of Mendota since 2015. During the time relevant to Kozlowski's remaining claims, Lane has been Mendota's Program Director. Schaller was the security captain at Mendota at all times relevant to Kozlowski's claims. Richard Klas worked as the Unit Manager of Mendota's Secure Assessment Treatment Unit ("SATU") Unit. While Patrick Cork has been employed by DHS since 1997, since January 26, 2015, he has worked for DHS as the Administrator of the Division of Care and Treatment Services and was involved in handling Kozlowski's grievances.

         B. Mendota

         Mendota is a DHS-operated psychiatric hospital that provides individualized and specialized care for patients with mental health needs. Mendota's patients are involuntarily detained or committed with complex behavioral problems under Wisconsin Statutes Chapters 51, 971, 975 and 938. Mendota currently has 16 separate, secure units totaling over 290 beds and an average daily population of 284 patients, putting it at or over capacity on a regular basis. One of the maximum security units, called the Assessment Treatment Unit ("ATU"), houses approximately 20 patients on a regular basis.

         At Mendota, a Client Rights Limitation or Denial Documentation ("CRLD") may be issued to patients for a number of reasons, including pending investigations into security threats at the facility. CRLDs are issued for the temporary limitation or denial of a patient right, such as phone calls, visits or access to property. After issuance, a CRLD is monitored and reviewed at least on a monthly basis, depending on the circumstances. A CRLD is discontinued when conditions for restoration of the patient's rights have been met. Over the course of a year, approximately 50 CRLDs are issued.

         Upon receipt of a CRLD, the patient is permitted an informal hearing. Wis.Stat. § 51.61 (2). During that hearing, the patient receives the opportunity to ask questions and provide input. At the end of the hearing, the patient's rights may be restored, or the limitation or denial is either continued or modified.

         C. July 9, 2014, Security Breach

         During early morning perimeter checks on July 9, 2014, security discovered that three chain fences outside the courtyard of the ATU had been cut. These cuts were large enough that a patient could have escaped from Mendota. As a result, both the Madison Police Department and Mendota investigated the incident. At Mendota, security completed a census count and accounted for all patients. The Madison Police Department also dispatched a police K-9, which located a pair of wire cutters near the cuts in the fences.

         During this investigation, Dr. Van Rybroek, Dr. Lane, and Mendota's deputy director at the time, Kathleen Bretl, placed Mendota on lockdown, which meant visits were temporarily stopped for all patients, patients could not access courtyards, and all patient movement was stopped. As a result of these lockdown measures, patients also could not perform their job duties nor attend treatment programming.

         While patients were in the ATU courtyard on July 20, 2014, staff also discovered three buried weapons, including two sheathed hunting knives and a pair of wire cutters. Moreover, hidden inside one of the knife cases was a typed letter.

         D. Investigation of Kozlowski

         Very early in the investigation of the security breach, Mendota administration believed that a man named "Daniel C." was responsible for the actual fence cutting and that Kozlowski was implicated. They came to this conclusion following their and the police departments' investigations of: (1) Kozlowski's behavior surrounding a July 8 visit; and (2) Daniel C.'s behavior before and after that visit. The location of the knives and wire cutters later found buried in the ATU courtyard, as well as the content of the accompanying letter, further supported the Mendota administration's ongoing investigation of Kozlowski's involvement in the fence cutting.

         As for the July 8 visit, the July 9, 2014, progress notes related to that visit - labeled a "notable observation" - included the note that when Kozlowski learned he had a visitor and was transported to the visitors room, he "appeared very anxious - walking and talking at a more than usual quickened state." (Ex. 108 (dkt. #13-2) at 1.) The July 9 note added that although Kozlowski brought along a pen and piece of paper to his visit with Daniel C., Kozlowski left with only the pen. The next day, July 9, Kozlowski also received a phone call from a person named Daniel, and Kozlowski was overheard asking that person if he "got home okay." Afterwards, Kozlowski continued to "act nervous, " and he was asking questions about the possibility of his room being searched. (Id. at 3.)

         Daniel C.'s own background and behavior likewise were integral to the conclusion that Kozlowski may have been involved in the fence cutting. For starters, Daniel had been previously found not guilty by reason of insanity ("NGI") for crimes involving criminal damage to property and arson, and had himself previously been a patient at Winnebago Mental Health Institute. As of his July 8 visit with Kozlowski, however, Daniel was out on conditional release.

         On July 8, Daniel C. took a bus from Racine, where he was living, to visit Kozlowski. Daniel arrived at Mendota before visiting hours began, asking staff if he could walk around the property while waiting for the visit to start. Staff consented, but told him that he could not walk behind the buildings. A psychologist at Mendota also saw Daniel roaming the property for about an hour carrying a plastic bag. When he checked into the visiting room, Daniel commented to an officer, "[Y]ou sure have a lot of fences here. It's like a prison." (Van Rybroekdecl. (dkt. #13) ¶ 18.)

         Moreover, after Daniel C.'s visit with Kozlowski, his story about how and when he returned to Racine was inconsistent and ultimately a mystery. For example, when Daniel's agent asked him what bus he took home after the visit, Daniel first responded that he took a 9:00 p.m. Greyhound. When informed that the last Greyhound left before 7:30 p.m. (when he was still visiting Kozlowski), however, Daniel changed his response. He then stated that he took a Badger bus, even though no Badger bus left Madison after 7:30 p.m. that night either.

         On July 17, 2014, Daniel C. was taken into custody in Kenosha after a person reported a suspicious person walking around with a suitcase. In the suitcase, police found a Taser and pepper spray. As a result, police arrested Daniel C. for Felony Possession of a Weapon. During the ensuing investigation, Mendota administration learned that the typing, font and content of the letter found inside one of the two knife cases in the ATU courtyard on Mendota property, along with the knives and wire cutters, was consistent with other correspondence found in Daniel's apartment.

         On August 4, 2014, Madison police interviewed Daniel C, who said that he was friends with Kozlowski, having met him while they were both at Winnebago. Daniel also said that Kozlowski expressed his desire "to get out really bad, that he didn't care about anything but getting out...., " but that he was not trying to break Kozlowski out because he was old and unable to escape. (Ex. 115 (dkt. #15-1) at 21-24.)

         Finally, the Mendota defendants learned that the knives, wire cutters and letter were buried under the window of Kozlowski's longtime friend, James S., who was known to communicate with Kozlowski for improper purposes, including breaking policies related to sharing, borrowing and lending between patients, bringing in contraband, and creating liaisons with other patients, prisoners or the community. James S. had also completed multiple, successful escapes throughout his incarceration ~ having escaped from a Pennsylvania prison and detention cell in 1964 - and attempted multiple, unsuccessful escapes in Wisconsin since his own NGI commitment. Although Mendota staff had taken steps to separate Kozlowski physically from James, staff believed that they were still able to communicate through three-way phone calls and by sending letters to each other through a third party.

         Following the July 8 fence cutting, staff moved James S. to another room in his unit that did not overlook the courtyard. Mendota also repaired the fences, and it now uses ...

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