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Anderson v. Litscher

United States District Court, E.D. Wisconsin

March 27, 2018




         On 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).

         On May 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).

         On 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.

         Allegations in the Amended Complaint

         On 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[1] 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 consent.

         On 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.

         Several 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 the complaint.

         On 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 adapter.

         About 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 called.

         On 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.

         Huck 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.

         Several 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.

         On May 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 ...

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