United States District Court, E.D. Wisconsin
DECISION AND ORDER WITHDRAWING THE REPORT AND
RECOMMENDATION (DOCKET # 18), AND SCREENING AND DISMISSING
THE AMENDED COMPLAINT (DOCKET #9)
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
September 15, 2016, Edward Anderson filed a civil rights
complaint under 42 U.S.C. §1983, along with a motion to
proceed without prepayment of the filing fee under 28 U.S.C.
§ 1915. (Docket #1-2). Anderson also filed two motions
requesting to use his release account to pay the balance of
the filing fee. (Docket # 8, 10).
9, 2017, I issued a decision and order denying both motions
to use his release account and screening and dismissing the
amended complaint for failure to state a claim. (Docket #14).
Anderson then filed a motion to reconsider my decision and
order, on May 24, 2017, which I granted in part and denied in
part. (Docket #17). Regarding use of his release account, I
considered the merits of his argument and denied the motion
to reconsider because he had not shown manifest error of law
or fact or newly discovered evidence. (Id. at 2).
Regarding dismissal of his amended complaint for failure to
state a claim, I noted that the defendants had not had an
opportunity to consent to magistrate judge jurisdiction,
therefore, I vacated the order. (Id. at 3); see
also Coleman v. Labor and Industry Review Comm'n of the
State of Wis., 860 F.3d 461, 475 (7th Cir. 2017). I then
converted the screening portion of my decision and order into
a Report and Recommendation, and the Clerk of Court assigned
it to District Court Judge Pamela Pepper on July 19, 2017.
(Docket # 18).
March 14, 2018, the Wisconsin Department of Justice
(“DOJ”) signed a memorandum of understanding
(“MOU”) consenting to magistrate judge
jurisdiction for the purpose of screening complaints under 28
U.S.C. § 1915A. The defendants in this case are
Department of Corrections (“DOC”) employees who
are covered under the MOU. Given the defendants' consent
to my jurisdiction, I will withdraw my Report and
Recommendation and will re-screen the amended complaint.
in the Amended Complaint
January 28, 2016, Anderson arrived at the Kettle Moraine
Correctional Institution (“KMCI”) and was placed
in the “intake unit.” Defendant Michael Huck,
along with other correctional officers in the KMCI
mail/property room, gave Anderson an orientation on KMCI
policies and procedures concerning mail and property. Several
days later, defendants Robert Humphreys and Kelly
Salinas spoke at an orientation that was mandatory
for all newly arriving inmates. Neither orientation described
a prison policy which allowed prison staff to take and
destroy mail/property without an inmate's express
March 28, 2016, Anderson received a “Notice of
Non-delivery of Mail” which explained that defendant
Timothy Immel destroyed a letter sent to Anderson because it
smelled of perfume. Anderson wrote to Huck and defendant Rory
Thelen about his right to appeal the decision through the
Inmate Complaint Review System (“ICRS”). Anderson
received no response.
days later, Anderson submitted an inmate complaint (KMCI
2016-7133) regarding the denial of his mail. Kelly Salinas
recommended dismissing the complaint because “[n]o
violations have been made by staff on this matter.”
Docket No. 9, ¶ 34. Based on Kelly Salinas'
recommendation, Humphreys dismissed Anderson's complaint.
Anderson appealed, and defendant Kimberly Richardson
recommended dismissing the appeal because “the
institution's decision reasonably and appropriately
addressed the issue raised by [Anderson].”
Id., ¶ 38. Defendant Jon Litscher accepted this
recommendation and dismissed Anderson's appeal. Anderson
states that none of the individuals who reviewed his inmate
complaint actually investigated the matter before dismissing
April 3, 2016, prison staff transferred Anderson from the
“intake unit” to “general
population.” Anderson requested to pick up his
typewriter from the mail/property room because inmates in
general population could have their typewriters. Immel gave
Anderson his typewriter but kept the adapter because adaptors
were not allowed in the “intake unit.” Anderson
reminded Immel that he was no longer in the “intake
unit” but Immel still refused to give Anderson the
two weeks later, Anderson sent a request to Thelen asking for
his adapter. CO II Dreikosen (not a defendant) wrote back
confirming that Anderson could have two adapters in general
population. Anderson then sent a request to Huck asking to
pick up his adapter from the mail/property room. Dreikosen
responded again indicating that Anderson would be called to
the mail/property room to get the adapter when his unit was
April 28, 2016, Anderson filed an inmate complaint (KMCI
2016-9364) against Immel, Huck, and Thelen for refusing to
give him his adapter. He attached the request for the adapter
that he had sent to Thelen, along with Dreikosen's
responses that he could have two adaptors. Kelly Salinas
rejected the complaint, and Humphreys affirmed.
finally called Anderson to the mail/property room on May 2,
2016. Huck told Anderson that he could either mail out the
adapter or destroy it “for failure to file a
complaint.” Id., ¶ 61. Anderson told Huck
that he had written to Thelen, filed an inmate complaint, and
had two correspondences from Dreikosen stating that could
have the adapter. Huck threw out the adapter anyway.
weeks after that, Anderson submitted a new complaint (KMCI
2016-9758) regarding destruction of his adapter. Anderson
again attached Dreikosen's responses as evidence that he
could have the adaptors. Defendant Jodene Perttu recommended
dismissing Anderson's inmate complaint based on
“her contact with Defendant K. Salinas and on form
DOC-237 from the mail/property room;” Humphreys
dismissed the complaint. Anderson appealed, and Corrections
Complaint Examiner Welcome Rose (not a defendant) concluded
that KMCI staff failed to follow proper procedure. Rose
recommended that Perttu and Kelly Salinas work to reimburse
Anderson for the adapter.
24, 2016, Anderson submitted an inmate complaint (KMCI
2016-10846) against Kelly Salinas for failing to consider
relevant evidence in his two inmate complaints regarding the
adapter. Perttu rejected the complaint, and Humphreys
affirmed. Anderson again ...