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Whitelaw v. Westra

United States District Court, E.D. Wisconsin

January 8, 2018

CAPTAIN WESTRA, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff Marquitos Maurice Whitelaw, an inmate serving a state prison sentence, filed this action under 42 U.S.C. § 1983, alleging that Defendants Brian Foster and Jeremy Westra violated his constitutional rights by denying him due process of law during a prison disciplinary proceeding. Although Whitelaw is currently incarcerated at Wisconsin Secure Program Facility, the events underlying his complaint occurred while he was housed at Waupun Correctional Institution (WCI). This matter comes before the court on the defendants' motion for summary judgment. ECF No. 24. Whitelaw did not file a response to defendants' motion within thirty days as required by Civil Local Rule 56(b)(2), and he has not requested additional time to file a response. This alone is grounds to grant the motion. Civil L.R. 7(d) (“Failure to file a memorandum in opposition to a motion is sufficient cause for the Court to grant the motion.”). For this reason and based on the undisputed facts before the court, it is clear the defendants are entitled to judgment as a matter of law. The defendants' motion for summary judgment will therefore be granted.


         The events giving rise to the conduct report underlying Whitelaw's claim occurred on July 30, 2016. Def.'s Proposed Findings of Fact (DPFOF), ECF No. 26 ¶¶ 6-13.[1] That morning, Officer Carly Noe was working with another officer to distribute the morning meal in the Restrictive Housing Unit, where Whitelaw was housed. DPFOF ¶¶ 6, 8; see also ECF No. 29 ¶ 7. Noe distributed milk and bananas from a refrigerated cart while the other officer passed meal trays through each cell's trap door. DPFOF ¶¶ 7-8; see also ECF No. 29 ¶ 6-7. When the other officer opened Whitelaw's trap door to pass in a meal tray, Noe observed Whitelaw through the open trap as he removed his penis from his pants and began stroking it. DPFOF ¶¶ 10-11; see also ECF No. 29 ¶ 9. Later in the day, when Noe was delivering trays as part of the lunch meal distribution, she observed Whitelaw repeating that behavior. DPFOF ¶ 13; see also ECF No. 29 ¶¶ 10-11.

         Following these incidents, Noe wrote a conduct report against Whitelaw for violating Wis. Admin. Code § DOC 303.14(1)(b), which prohibits inmates from “[e]xpos[ing] . . . [their] own intimate parts to another person for the purpose of sexual arousal or gratification.” DPFOF ¶¶ 14-15; see also ECF No. 28-1 at 1-2. Defendant Westra was assigned as the hearing officer for the disciplinary hearing resulting from the conduct report. DPFOF ¶ 17; see also ECF No. 27 ¶ 6. A staff representative was assigned to assist Whitelaw in preparation for and during the disciplinary hearing. DPFOF ¶¶ 7, 29-30; see also ECF No. 27 ¶¶ 7-8, 15-16. After receiving notice of the conduct report and disciplinary hearing, Whitelaw filed a form requesting that Noe and another officer attend the hearing as witnesses and that he be provided with the security camera video from his wing of the restrictive housing unit for 6:30 to 7:30 a.m. on the day of the incidents. DPFOF ¶¶ 20-21; see also ECF No. 28-1 at 3. Westra granted the request to require the witnesses to attend the hearing but denied Whitelaw access to the security camera video on the grounds that it was “not relevant to why [he] had [his] penis out.” DPFOF ¶¶ 20, 22; see also ECF No. 28-1 at 3. Westra also informs the court that there is no camera located directly outside the cell where Whitelaw was located on the day of the incident and that the closest camera shows the entire corridor of nearby cells but not the inside of any individual cell. DPFOF ¶ 24; see also ECF No. 27 ¶ 11.[2]

         At the disciplinary hearing, Whitelaw made a verbal statement asserting that Noe did not pass out breakfast trays on the day of the incident, but he said nothing regarding his behavior at the time of lunch distribution. DPFOF ¶¶ 25-26; see also ECF No. 28-1 at 6. Both officers testified at the hearing. When Whitelaw asked Noe whether she remembered passing out breakfast trays, she reiterated that she was passing out milk and bananas that morning. DPFOF ¶¶ 27-29; see also ECF No. 28-1 at 6-8. Finding the conduct report credible and noting that Whitelaw had been found guilty of similar conduct seven times in the preceding twelve months, Westra determined that it was more likely than not that Whitelaw engaged in the sexual conducted alleged in the report and therefore found him guilty. DPFOF ¶¶ 31-32; see also ECF No. 28-1 at 6. Westra ordered 120 days of disciplinary separation as a penalty. DPFOF ¶ 34; see also ECF No. 28-1 at 6.

         Whitelaw appealed to Defendant Foster to review the disposition of the conduct report in his capacity as warden. DPFOF ¶ 38; see also ECF No. 28-1 at 9. Whitelaw argued that Westra's denial of access to the video denied him due process of law and prevented him from receiving a fair hearing. DPFOF ¶ 38; see also ECF No. 28-1 at 9. To conduct the appeal, Foster reviewed the entire conduct report record, which included Whitelaw's statement and the witness testimony at the hearing. DPFOF ¶ 39; see also ECF No. 30 ¶ 10. Although Foster does not recall whether he actually reviewed the video footage that Whitelaw requested, his normal practice is to review video footage when it is raised as an issue on appeal, so he believes he did do so in this case. DPFOF ¶ 40; see also ECF No. 30 ¶ 11. Foster determined that the finding of guilt and the disposition of the case were appropriate, so he affirmed Westra's decision. DPFOF ¶ 43; see also ECF No. 30 ¶ 12.


         Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


         Whitelaw alleges that Westra and Foster denied him due process of law by finding him guilty and imposing 120 days of disciplinary separation despite denying him access to the security video at his disciplinary hearing. “A prisoner challenging the process he was afforded in a prison disciplinary proceeding must meet two requirements: (1) he has a liberty or property interest that the state has interfered with; and (2) the procedures he was afforded upon that deprivation were constitutionally deficient.” Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007) (citing Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994), which cited Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). The court concludes that summary judgment in favor of the defendants is appropriate as a matter of law because Whitelaw did not possess a liberty interest in avoiding 120 days of disciplinary separation and he received constitutionally sufficient procedural protections.

         A. Liberty Interest

         As the Seventh Circuit has observed, the Supreme Court's decisions in Sandin v. Conner, 515 U.S. 472 (1995), and Wilkinson v. Austin, 545 U.S. 209 (2005), “establish that disciplinary segregation can trigger due process protections depending on the duration and conditions of segregation.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009). In Sandin, the Court explained that an inmate has a liberty interest only in “freedom from restraint [that] . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484. Applying that standard in Wilkinson, the Court determined that conditions at a “Supermax” prison gave rise to a liberty interest because not only was “almost all human contact . . . prohibited” but placement was also indefinite and reviewed just once per year. 545 U.S. at 223-24. “Although relatively short terms of segregation rarely give rise to a prisoner's liberty interest, at least in the absence of exceptionally harsh conditions, such an interest may arise from a long term of confinement combined with atypical and significant hardships.” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (citing Marion, 559 F.3d at 697-98). Even a disciplinary segregation term of six months does not of necessity give rise to a protected liberty interest in the absence of “conditions of confinement [that] are unusually harsh.” Marion, 559 F.3d at 697-98 (citing Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)).

         Instructive in Whitelaw's case is the Seventh Circuit's decision in Hardaway concluding that an inmate fell short of demonstrating a deprivation of rights constituting an “atypical and significant hardship.” 734 F.3d at 744. As relevant conditions of his 182-day disciplinary segregation, the inmate cited “his placement with a confrontational cell mate, the psychological issues he experienced in connection to his aversion to closed solid metal doors, and his weekly access to the shower and prison yard.” Id. Although the Seventh Circuit acknowledged that “these conditions are more severe than those found in the general prison population, ” it went on to conclude that “they are hardly ...

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