United States District Court, E.D. Wisconsin
WILLIAM T. ANTEPENKO, JR., Plaintiff,
JUDY SMITH, et al., Defendants.
AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 24), DENYING THE PLAINTIFF'S MOTION TO
SUPPLEMENT THE RECORD, MOTION TO DISCLOSE ELECTRONICALLY
STORED INFORMATION, MOTION TO AMEND/CORRECT THE COMPLAINT,
MOTION FOR EXTENSION OF TIME, MOTION FOR RECONSIDERATION
(DKT. NO. 34), DENYING THE PLAINTIFF'S MOTION FOR
TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION (DKT. NO.
35) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983, alleging that the defendants
violated his constitutional rights. Dkt. No. 1. On January
10, 2017, the court allowed the plaintiff to proceed on his
claim that defendants Judy Smith, Kristine Zanon and Joseph
Brooks denied him the opportunity to have in-person visits or
telephone calls with his minor son. Dkt. No. 12. On August 7,
2017, the defendants filed their motion for summary judgment.
Dkt. No. 24. That motion is fully briefed.
September 19, 2017, the plaintiff filed a motion to
supplement the record, a motion to disclose electronically
stored information, a motion to amend or correct the
complaint, a motion for an extension of time, a motion for
reconsideration, and a motion for a temporary restraining
order or preliminary injunction. Dkt. Nos. 34, 35.
court will grant the defendants' motion for summary
judgment, deny the plaintiff's motions and dismiss the
RELEVANT FACTS 
plaintiff has been incarcerated almost exclusively at Oshkosh
Correctional Institution since September 8, 2015 (he spent a
little more than a month at two other facilities). Dkt. No.
26 at ¶1. In 2008, he was convicted of sex with a child
sixteen or over. Id. at ¶5. He was sentenced to
thirty days in the county jail and one year of probation; he
was not required to register as a sex offender, nor was he
required to undergo any sex offender treatment in connection
with this conviction. Dkt. No. 31 at 12.
March 2014, the plaintiff was convicted of child
enticement-sexual contact. Dkt. No. 26 at ¶6; Dkt. No.
27-1 at 1. The victims of his 2014 crimes were his two minor
daughters. Dkt. No. 26 at ¶7. The plaintiff clarifies
that he was convicted only of child enticement, not sexual
assault. Dkt. No. 31 at 11. He also explains that he entered
an Alford plea; he did not admit any guilt, but
acknowledged that the state had enough evidence to find him
guilty. Dkt. No. 1 at 4; Dkt. No. 31 at 11. The plaintiff
continues to maintain that he is innocent of those crimes.
Dkt. No. 31 at 1.
defendants are employees of the Wisconsin Department of
Corrections: Dr. Kristine Zanon is a psychologist supervisor
at Oshkosh, Judy Smith is the warden at Oshkosh and Joseph
Brooks is a probation and parole agent. Dkt. No. 26,
Initial Assessment and Treatment Decisions
admission to the Department of Corrections, all inmates whose
histories include a sexual assault conviction, commitment, or
offense that includes “behaviors that were sexually
motivated or deviant are given an initial intake assessment
to determine sex offender problem areas and appropriateness
for treatment programs.” Id. at ¶9. The
assessment includes a review of the inmate's file and a
clinical interview of the inmate to determine the
inmate's “amenability for treatment and other
programming needs.” Id. at ¶10. There are
different kinds of sex offender treatment programs (SOTP),
but they all have one major goal: “to reduce the
inmate's risk of sexual re-offending.” Id.
inmate transfers to an institution, staff place him on a
waiting list for each program need that was identified in his
initial assessment. Id. at ¶12. Staff consider
release dates, endorsements from the parole commission, and
prior program participation in deciding when it is
appropriate to begin treatment. Id. at ¶13. In
general, inmates closest to their release dates receive
higher priority for placement in SOTP. Id. at
¶13. This is because the skills and techniques inmates
learn in treatment will be more effective in reducing
recidivism when they are fresh in an inmate's memory.
requirement for participation in SOTP is an inmate's
willingness “to explore the thoughts, feelings, and
behaviors that led up to the offense.” Id. at
¶14. SOTP helps inmates “examine and identify the
risky thoughts and behaviors that are directly related to
their offending.” Id. at ¶15. Once the
inmate identifies those thoughts and behaviors, SOTP works to
“implement new pro-social coping techniques and problem
solving strategies to manage their risks, thereby decreasing
their risk to re-offend.” Id.
an inmate does not have to admit guilt for the exact sexual
assaultive behaviors charged in the criminal complaint, he
does have to “admit generally to his sexual assaultive
behaviors” before he will be admitted into SOTP.
Id. at ¶16.
staff identified the plaintiff's sex offender program
need as SO-4, which is a “two year, intensive
residential treatment program that addresses an inmate's
sexually deviant behaviors.” Id. at
¶¶17-18. Inmates suggested for the SO-4 program are
those who have been identified as having “a high risk
for sexual re-offending and high treatment needs.”
Id. at ¶18. The program requires a minimum of
400 hours. Id.
plaintiff's adjusted release date is May 2021.
Id. at ¶20. Given the waiting list for SOTP, it
may be a year or so before the plaintiff can be placed in
SOTP. Id. This is because inmates with earlier
release dates than the plaintiff's will be placed into
SOTP before him. Id. In addition, the plaintiff may
not be allowed to participate in SOTP while he is
incarcerated “if he cannot admit to his sexually
offending behaviors.” Id. at ¶21. Zanon
explains that a treatment provider cannot treat the plaintiff
“for something he has not accepted.” Id.
institution considers an inmate's criminal history,
victim profile and SOTP status when deciding whether to
approve or deny a visitation request. Id. at
¶22. “When an inmate's history and convictions
suggest a possible deviant attraction to children, especially
prepubescent children, the institution will usually deny the
opportunity for potential visitors that may be similar to the
victim profile.” Id. When an inmate is
enrolled in SOTP, the institution may re-evaluate the
visitation request. Id.
Policy 309.06.01 lays out the procedure for making a
visitation request, and the visitation guidelines.
Id. at ¶24. An inmate's social worker
reviews the application; the social worker may approve the
request if there is no reason to deny it, and may add a
visitor to the visitor's list. Id. at ¶25.
If the social worker needs clarification on a visitor
request, he or she may seek a recommendation for the
inmate's “DCC agent and/or the psychologist
supervisor.” Id. at ¶26.
psychologist supervisor receives a request for visitation
from an inmate with a sex offender treatment need, he or she
takes into consideration “various factors, including
the details of the offense, the inmate's general offense
history/pattern of offending, victim profiles, treatment
needs, characteristics of the proposed visitor, the
inmate's amenability for treatment, potential benefit or
harm to the proposed visitor and the inmate, and the
potential victimization of the proposed visitor.”
Id. at ¶27. There is no blanket rule
prohibiting minors from visiting with an inmate convicted of
a sexually-related offense; “[e]ach inmate and visitor
request is reviewed and decided individually. Id. at
¶33. If an inmate has unmet treatment needs, however,
the defendants assert that “it is generally in the best
interests of the inmate and the visitor if the inmate has
completed sex offender treatment, as recommended by their
treating provider.” Id. at ¶34.
social worker seeks clarification from the psychologist
supervisor, the psychologist supervisor takes into account
the same factors considered by the social worker.”
Id. at ¶27. She “then recommends approval
or denial and submits [the request] back to the social
worker. Id. If the psychologist supervisor
recommends denying the request, the request is forwarded to
the unit manager, who discusses the recommendation with the
social worker. Id. at ¶28-29. The unit manager
“is responsible for all denials of visitation requests
for inmates on their housing unit.” Id. at
unit manager denies a visitation request, staff completes a
visitor denial form and forwards it to the proposed visitor
and the inmate. Id. at ¶31. Denials may be
based on various criteria listed in Wis. Admin. Code
§DOC 309.08(4), including that the warden has reasonable
grounds to believe the inmate's offense history indicates
there may be a problem with the proposed visitation, and/or