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Gage v. Zanon

United States District Court, E.D. Wisconsin

April 19, 2018

KATHERINE ZANON, et al., Defendants.


          William C. Griesbach, Chief Judge

         Plaintiff Shane Ryan Gage, who is currently serving a state prison sentence at Oshkosh Correctional Institution (OCI) and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. On March 1, 2018, the court dismissed Plaintiff's 21-page complaint, finding that it violated Federal Rules of Civil Procedure 18(a) and 20. The court directed Plaintiff to file an amended complaint that complied with the Federal Rules of Civil Procedure within 30 days. Presently before the court is Plaintiff's motion for leave to file an amended complaint, which was filed eight days after the court-imposed deadline. Plaintiff asserts that the OCI employee responsible for e-filing documents was unable to file his amended complaint by April 1, 2018. Although the court will grant Plaintiff's motion and screen the amended complaint pursuant to 28 U.S.C. § 1915A, the court notes that Plaintiff's failure to make timely submissions in the future may result in the dismissal of this action for failure to prosecute.

         Screening of the Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         Allegations in the Complaint

         Plaintiff has voluntarily dismissed 26 of the 35 defendants he named in the original complaint. He now asserts that defendants Katherine Zanon, Amy Karn, Kimberly McKown-Walters, Brittany Rysdam, Sergeant O'Connor, Lori Adams, H. Wohlers, Robert DeYoung, and Warden Smith violated his constitutional rights.

         In March 2012, Plaintiff was transferred to Dodge Correctional Institution after he was charged with domestic aggravated battery. Plaintiff alleges the state court deferred final judgment pending an investigation into whether Plaintiff's offense was sexually motivated. On April 23, 2012, Dr. Robert DeYoung classified Plaintiff as a Sex Offender-4 (SO-4), which requires long-term intensive treatment for high-risk inmates. Plaintiff asserts he was classified as a sex offender despite “incomplete sentencing” in state court. He claims the state court issued a decision and order on July 26, 2012, noting that Plaintiff's offense was not sexually motivated.

         On January 15, 2015, Plaintiff was transferred to Oshkosh Correctional Institution. On April 8, 2016, the program review committee reviewed Plaintiff's sex offender treatment needs. In early June 2015, Plaintiff was moved to the “K” building, the sex offender treatment and housing unit. He was subsequently removed from the “K” building on June 24, 2015. On June 28, 2016, Dr. Wohler, a psychologist at OCI, interviewed Plaintiff regarding sex offender treatment and rejected Plaintiff's request to participate in SO-4 treatment. Dr. Zanon, the Chief Psychologist at OCI, approved Dr. Wohler's sex offender treatment decision.

         On March 24, 2017, Dr. Zanon told Plaintiff to stop contacting herself and Dr. McKown-Walters regarding Plaintiff's treatment needs. Dr. Zanon issued Plaintiff a conduct report on June 23, 2017 for “disobeying orders” and “disrespect” because Plaintiff continued to contact her regarding his SO-4 treatment. The program review committee held another hearing regarding Plaintiff's treatment needs on July 17, 2017. Social Worker Rysdam prepared a report for the hearing, indicating that Plaintiff has refused SO-4 treatment “numerous times.” ECF No. 13-1 at 6. Plaintiff asserts that his lack of treatment should be attributed to Dr. Wohler and Dr. Zanon's decision to prevent Plaintiff from participating in treatment.

         The Court's Analysis

         Plaintiff claims his sex offender classification violates the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment prohibits states from depriving “any person of life, liberty or property without due process of law.” U.S. Const. Amend. XIV. “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property' or ‘liberty.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). Liberty interests “will be generally limited to freedom from restraint which . . . imposes [an] atypical and significant hardship on the inmate in retaliation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

         Here, Plaintiff does not enjoy a liberty interest in avoiding sex offender classification. In reaching this conclusion, I adopt Judge Crabb's thorough and well-reasoned discussion of this very issue in Grenier v. Frank, No. 05-C-181-C, 2005 WL 2076432 (W.D. Wis. Aug. 25, 2005). As Judge Crabb pointed out, merely labeling an inmate as a sex offender is insufficient to affect a liberty interest. Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001) (citing Paul v. Davis, 424 U.S. 693, 708-10 (1976) (to give rise to liberty interest, harm inflicted to reputation must be coupled with change in legal status)). In addition, an inmate does not have a liberty interest in avoiding sex offender classification in prison and being required to participate in sex offender treatment programs. As Judge Crabb also explained in Jones v. Puckett,

It is common for persons entering prison to have an evaluation of the reasons for their criminal behavior and their treatment needs, for the resulting evaluations to be recorded in their records and for the authorities who make programming and parole decisions to base their decisions in whole or in part on their sense of the effort a particular inmate has made to confront the problems that have been identified as contributing to his criminal conduct. Because it is common procedure, plaintiff cannot argue that his evaluation and identification as a person in need of sex offender treatment is the “atypical and significant hardship on the inmate” that creates a liberty interest. Sandin v. Conner, 515 U.S. 472, 484 (1995) (“[Liberty] interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an ...

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