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Wilson v. Dittman

United States District Court, W.D. Wisconsin

December 19, 2017

DAVID M. WILSON Plaintiff,
MICHAEL DITTMAN, et al., Defendants.



         Pro se plaintiff David M. Wilson is proceeding in this lawsuit on claims that prison staff at Columbia Correctional Institution (“Columbia”) violated his constitutional rights. Specifically, the court granted him leave to proceed on: (1) an Eighth Amendment deliberate indifference claim against security director Weber for his alleged failure to provide Wilson with his Multiple Sclerosis medication; and (2) a Fourteenth Amendment due process and Wisconsin state law false imprisonment claims against defendants Michael Dittman and Weber for their part in placing him in segregation at Columbia. Now before the court is defendants' motions for summary judgment (dkt. #39) and to stay the trial and pretrial deadlines (dkt. #89), as well as Wilson's motion for assistance in recruiting counsel (dkt. #38). For the following reasons, the court will grant defendants' motion, deny the motion to stay as moot, deny plaintiff's motion and enter judgment in defendants' favor and close this case.


         I. Parties

         Plaintiff David Wilson is currently incarcerated by the State Department of Corrections (“DOC”) at Columbia in Portage, Wisconsin. Wilson suffers from Multiple Sclerosis (“MS”). During all times relevant to his claims, he has been prescribed multiple medications to treat the symptoms, including copaxone, duloxetine and gabapentin. In particular, during the relevant time period: the copaxone medication was prescribed to be administered via injection three times per week; the duloxetine was prescribed to be taken daily; and 600 mg of gabapentin was prescribed to be taken four times daily.

         Both defendants were DOC employees. Michael Dittman has been warden at Columbia since March of 2014; and Lucas Weber became the Security Director at Columbia in May of 2013. They remain in those same positions today.

         II. Conduct Report #2646435

         On March 18, 2015, staff learned about multiple sexual misconduct allegations against Wilson. In response, staff placed him in temporary lock-up (“TLU”) pending investigation. During Captain Pitzen's subsequent investigation, three inmates told him that Wilson either touched them inappropriately or made inappropriate comments to them. As a result, Pitzen prepared Conduct Report #2646435, accusing Wilson of violating Wis. Admin. Code § DOC 303.14 “Sexual Conduct” and § DOC 303.15 “Sexual Contact or Intercourse.” It was forwarded to the Security Director's office for review on April 2, 2015. As with all conduct reports sent to his office for review, Weber reviewed Conduct Report #2646435 and allowed it to proceed as a major offense because he felt that the allegations about Wilson's behavior created a risk of serious disruption in the facility.

         On April 6, 2015, Wilson received a copy of Conduct Report #2646435, and a disciplinary hearing was held on April 9, 2015, before Captain Lucas Wogernese and Unit Manager Lindsey Walker. At the hearing, Wilson requested that another inmate be allowed to testify on his behalf. He also requested all video evidence of the areas where the alleged incidents took place. While Wogernese permitted the other inmate to testify in the form of written answers to questions, Wogernese did not permit the video evidence, finding that none existed. Wogernese and Walker also received a copy of a confidential informant statement, while Wilson only received a “Summary of Confidential Informant Statement, ” DOC-78A, a form that provides the summary of witness testimony without identifying the witness, who might then be at risk of physical harm. In sum, the evidence before Wogernese and Walker included: (1) Wilson's verbal statements at the hearing; (2) three written confidential informant statements; and (3) other written witness statements.

         Based on his interpretation of Wis. Admin. Code § DOC 303.84(6), however, Wogernese verbally concluded that the confidential informant statements did not corroborate each other at the end of the hearing. Under § DOC 303.84(6), a hearing officer may consider written statements that can be corroborated by other evidence in one (or more) of three ways: (a) by other evidence that substantially corroborates the facts alleged in the statement, including an eyewitness account by an employee or circumstantial evidence; (b) by evidence of a very similar violation by the same inmate; and (c) two confidential statements by different persons, used to corroborate each other. Wogernese interpreted this policy as requiring at least two confidential informant statements about the same incident that corroborated each other. Because none of the confidential statements were about the same alleged incident, Wogernese told Wilson during the hearing that the evidence was not sufficient to find him guilty of the charges. Because Wogernese made no such finding in writing, however, Wilson never received a copy of that decision.

         That same day, after learning about the outcome of the April 9 hearing, Security Director Weber and the Deputy Warden spoke with Wogernese and Walker about their decision. Weber disagreed with Wogernese's interpretation of § DOC 303.84(6), pointing to subsection (b), which permitted a hearing officer to consider evidence “about the same inmate making similar violations.” In particular, Weber maintained that the three confidential statements that accused Wilson of either making sexual contact or sexual comments did corroborate one another. As a result, Weber believed that Wogernese should not only have considered those confidential statements during the hearing, but also that all of the evidence available supported a finding that Wilson was guilty of sexual misconduct and sexual contact. Weber further believed that the results of the hearing were not final because Wilson had yet to receive a written copy of the hearing decision. As Security Director, Weber then directed Wogernese to change the finding to guilty.

         Still that same day, April 9, 2015, Wogernese changed the finding to guilty based on Weber's instructions “regarding the validity of the confidential witness statements.” (Wogernese Decl. (dkt. #48) ¶ 14.) In his written decision, Wogernese wrote that he deemed the conduct report writer credible, Wilson's and his witnesses' statements self-serving, and that it was more likely than not that the events described in the report occurred because “3 separate confidential informants gave statements of 3 separate incidents where inmate Wilson had either touched them inappropriately or made inappropriate comments to them while exposing himself.” (Dkt. #44-1, at 4.) Wogernese then issued a written decision that found Wilson guilty of the offenses listed in Conduct Report #2646435 and sentenced him to 240 days in segregation. The maximum amount of disciplinary separation time that Wogernese could have imposed for the violations of §§ 303.14 and 303.15 was 360 days. Wogernese justified the 240-day punishment because Wilson's overall disciplinary record was average/poor, the acts were disruptive and seriously compromised institution security and the punishment needed to deter Wilson from engaging in similar conduct in the future.[2]

         The next day, April 10, 2015, Wilson was told that Wogernese had changed his finding to guilty and that he was being placed into disciplinary separation. On April 15, Wilson signed an appeal of Wogernese's decision, which the warden's office received on April 20. In his appeal, Wilson argued that: (1) the original not guilty finding was arbitrarily changed to guilty; and (2) the imposition of 240 days of disciplinary separation violated his due process rights.

         Columbia's Warden Dittman was not aware of Conduct Report #2646435 until his office received Wilson's appeal. After reviewing all of the evidence, including the confidential informant statements, and Wogernese's written decision, Dittman then discussed Captain Wogernese's change from not guilty to guilty with Weber. Dittman agreed with Weber that the hearing decision only became final upon completion of the written decision, not when Wogernese verbally informed Wilson of his initial, not guilty finding. On May 6, 2015, Dittman confirmed Wogernese's decision and disposition of Conduct Report #2646435. At that point, Conduct Report #2646435 became final, which triggered his right to challenge his conviction through the Inmate Complaint Review System (“ICRS”).

         III. Inmate Complaint CCI-2015-8389

         On May 8, 2015, Wilson filed Inmate Complaint CCI-2015-8389, claiming that Security Director Weber inappropriately overruled Wogernese's original finding. On June 19, the inmate complaint examiner (“ICE”) recommended that Wilson's challenge be affirmed. Specifically, ICE recommended that: (1) the Conduct Report #2646435 finding Wilson guilty should be reversed; (2) Wilson should be restored to his previous security status; and (3) Wilson should receive any back-pay he would have otherwise earned but for his placement in restrictive housing. In support, ICE cited to Wis. Admin. Code Ch. DOC 303, which did not allow for a DOC security director to override a decision made by a hearing officer at a disciplinary hearing.

         After Warden Dittman received ICE's recommendation, and in particular learning that the Wis. Admin. Code Ch. DOC 303 did not permit Weber to change the examiner's finding of not guilty (even if yet not yet finalized in writing), Dittman proceded to affirm ICE's recommendation as to Wilson's Inmate Complaint CCI-2015-8389 on June 26. Dittman copied Wognernese, Walker and Weber on his final decision. As a result, on Monday, June 29, 2015, Wilson was removed from the RHU and returned to Columbia's general population. In addition, Conduct Report #2646435 was removed from Wilson's institutional record, and Wilson received $10.80 in back-pay. Even so, while his grievance was being resolved, Wilson had already served some 80 days, a third of his later vacated 240-day segregation sentence between April 10 and June 29.

         IV. Wilson's Placement in Columbia Restrictive Housing Generally

         At Columbia, inmates who violate institution rules or pose a security risk may be placed in one of three restrictive housing units (“RHU”), which each impose limitations on inmates' privileges to address Columbia's security or punitive interests particular to each inmate. Two units are relevant to Wilson's placement: Restrictive Housing Unit 1 (“RH1”) and Restrictive Housing Unit 2 (“RH2”).[3] RH1 houses inmates who have recently been placed in restrictive housing, as well as inmates who are having ongoing behavioral problems and have been placed on observation status. RH2 is a “step-down” unit that houses inmates who previously had been held in RH1 but demonstrated improved behavior.

         Generally speaking, inmates in RH1 and RH2 share many of the same conditions. Inmates in both units are provided with food, clothing, bedding, health services, prescriptions, inmate complaint forms, daily mail delivery, clean linens once a week and showers twice a week. Also, both units permit inmates to possess numerous items in their cell, including: basic hygiene products, religious text, religious items, 25 personal letters, a 100-sheet stationary pad, ten photographs, an address book, 25 envelopes, legal materials, 4 magazines, 8 soft-covered books, 10 newspapers and 1 deck of playing cards. Although inmates in restrictive housing are not allowed to keep medications in their cells, staff bring inmate's medication to their cell in both units during medical pass times.[4] Inmates in both RHU's are further permitted one hour of recreation time four times per week.[5] Finally, inmates may visit the law library for one hour per week and can request additional time when they have an upcoming filing deadline.

         Beyond these similarities, however, there are also a number of privileges that differ between RH1 and RH2. As to visitation and phone calls, inmates on RH1 may have one phone call and two hours of visitation per month, and inmates on RH2 are permitted two phone calls per month. Additionally, while the privileges on RH1 appear to remain consistent, RH2 uses a step policy, where inmates that progress through the steps receive more privileges. For example, RH2-Step 1 permits inmates a one-hour visit per week. RH2-Step 2 permits inmates a two-hour visit per week, as well as access to one electronic device.

         V. Conditions and Treatment During Wilson's RHU Placement

         Following Weber's direction of a finding of guilt as to Conduct Report #2646435, Wilson was first placed in RH1 restrictive housing from April 10 until May 6, 2015. Consistent with policy, Wilson was then transferred to RH2-Step 2, where he remained until June 29, 2015. At that time, Wilson was returned to the general population consistent with his successful grievance. In other words, Wilson was on RH1 for 26 days, and RH2 for 54 days, totaling 80 days in restrictive housing. The restrictions placed upon Wilson during his time in restrictive housing were generally consistent with the restrictions imposed on other inmates in the RH1 and RH2-Step two units. However, a portion of his time in the RHU involved more restrictions due to a lockdown. Specifically, on May 7, 2015, Columbia was placed on lock-down because of an assault on a staff member that occurred in an RHU. During this time, Dittman suspended multiple privileges. (Dkts. ##53, 54, 54-1.) According to Wilson, when the lockdown was in place, in addition to not receiving his medications as prescribed, he did not receive recreation time, clean linens, or access to the law library, and was permitted to shower only once a week rather than three times. It is unclear how long the lockdown procedures were in place, but it appears that it was still in effect at least as of June 3, 2015, when Wilson exchanged correspondence with Dittman's secretary about the lockdown procedures. (Dkt. #55-1.)

         VI. Wilson's Health ...

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