United States District Court, E.D. Wisconsin
TERRY C. KEMPER, Plaintiff,
WARDEN PAUL KEMPER, Defendant.
who is incarcerated at the Racine Correctional Institution
(“RCI”), filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). At the Court's suggestion,
see (Docket #9), he has filed an amended complaint.
The Court now turns to screening that complaint.
the payment of any fee, Court is required to screen
complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a
governmental entity. Id. § 1915A(a). The Court
must dismiss a complaint or portion thereof if the prisoner
has raised claims that are legally “frivolous or
malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. Id. §
1915A(b). The same standards applicable in the first
screening order remain applicable here. (Docket #4 at 1-3).
amended complaint is largely identical to his original
complaint. The thrust of it appears to be clarifying his
existing claims. Plaintiff is an inmate at RCI and is
presently serving a sentence as a registered sex offender.
(Docket #11 at 2). Defendant Paul Kemper
(“Kemper”) is the prison warden. Id.
is being denied certain publications he orders. Id.
The denials are made in the first instance by the
prison's chief psychologist, Dr. Michael Hagan
(“Hagan”). Id. Plaintiff complains that
Hagan's review of incoming materials is not done in
accordance with Wisconsin Department of Corrections
(“DOC”) policy or the policies of his specific
institution, including the RCI inmate handbook and RCI's
“chain of command” (“COC”)
procedures. Id. The DOC policies, cited in the
amended complaint, permit prison officials to deny
publications to inmates that are “injurious, ”
which is defined as material that: (1) is pornography; (2)
poses a threat to the security, orderly operation, discipline
or safety of the institution; (3) is inconsistent with or
poses a threat to the safety, treatment, or rehabilitative
goals of an inmate; or (4) facilitates criminal activity.
Wis. Adm. Code § DOC §§ 309.05(2)(b)(4),
than make careful determinations under these policies as to
whether the materials Plaintiff ordered were appropriate,
Plaintiff alleges that Hagan makes blanket denials.
Id. It appears that Hagan's decisionmaking is
motivated, at least in part, by Plaintiff's sex-offender
status and the fact that Plaintiff is currently undergoing
sex offender treatment. See Id. at 4. Despite
Plaintiff's repeated complaints to Hagan, other
psychological services staff, and supervisory prison
officials about the denials, no policy change has been made.
See Id. at 3-4. In fact, Hagan's actions have
been approved by Deputy Warden Steven Johnson, in a
memorandum he issued to Plaintiff on September 16, 2016, by
Kemper himself in another memorandum issued to Plaintiff on
October 6, 2016. Id. at 2-3. Plaintiff's inmate
grievance on the matter was also denied at all levels of
review, with the examiners citing the fact that Hagan's
review is consistent with publication review policies
applicable to sex offenders. Id. at 4.
raises several claims from these facts. First, Plaintiff
believes that Kemper violated his First Amendment free-speech
rights by approving Hagan's publication-review decisions,
as he feels that he cannot order any materials that will pass
Hagan's review. Id. Second, Plaintiff alleges
that Kemper has imposed on him an enhanced publication review
process because he is presently undergoing sex offender
treatment but has not yet completed the program. See
Id. This enhanced review is, in Plaintiff's view,
not authorized by DOC policy, the RCI inmate handbook, or
RCI's COC procedures, and it violates his procedural
due-process rights under the Fourteenth Amendment.
Id. Third, because this enhanced review procedure is
applicable only to Plaintiff as an untreated sex offender,
and is not applicable even to other general-population sex
offenders-i.e., those who are not undergoing
treatment-Plaintiff contends it contravenes his right to
equal protection of the law as guaranteed by the Fourteenth
Amendment. Id. Plaintiff prays for injunctive and
declaratory relief against future discrimination.
allegations and claims in the amended complaint closely track
Plaintiff's original complaint. As a result, the Court
finds that Plaintiff should be permitted to proceed on the
same claims as discussed in the first screening order.
See (Docket #4 at 4-9). The Court will not repeat
that lengthy analysis here. It suffices to note that, under
the narrow exception to Eleventh Amendment immunity
recognized in Ex parte Young, 209 U.S. 123 (1908),
Plaintiff may proceed against Kemper in his official capacity
to enjoin violations of Plaintiff's constitutional rights
under the First and Fourteenth Amendments. See Ameritech
Corp. v. McCann, 297 F.3d 582, 596 (7th Cir.
reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) interference with
Plaintiff's right to freedom of speech and expression
arising from denial of access to publications, in violation
of the First Amendment, against Defendant Kemper; (2) denial
of procedural due process, in violation of the Fourteenth
Amendment, against Defendant Kemper; and (3) denial of equal
protection of the law, in violation of the Fourteenth
Amendment, against Defendant Kemper. 28 U.S.C. §
IT IS ORDERED that Plaintiff's amended
complaint (Docket #11) shall be the operative complaint in
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this Court, copies of Plaintiff's amended complaint
and this Order will be electronically sent to the Wisconsin
Department of Justice for service on Defendant;
IS FURTHER ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this Court, Defendant shall file a responsive pleading to
the complaint within sixty (60) days of receiving electronic
notice of this Order; and
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the agency where the inmate is