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Antepenko v. Smith

United States District Court, E.D. Wisconsin

February 1, 2018

JUDY SMITH, et al., Defendants.



         The 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.

         On 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.

         The court will grant the defendants' motion for summary judgment, deny the plaintiff's motions and dismiss the case.

         I. RELEVANT FACTS [1]

         A. Parties

         The 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.

         In 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;[2] 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.

         The 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, ¶¶2-4.

         B. Initial Assessment and Treatment Decisions

         At 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. at ¶11.

         When an 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. Id.

         A 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.

         While 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.

         OCI 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.

         The 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.

         C. Visitation Policy

         The 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.

         DAI 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.

         When a 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.

         If the 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 ¶30.

         If the 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 ...

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