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Tate v. Litscher

United States District Court, E.D. Wisconsin

May 5, 2018

SEAN TATE, Plaintiff,
v.
JON LITSCHER, et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN United States District Judge

         Plaintiff Sean Tate is a Wisconsin state prisoner who is representing himself. I screened his complaint and allowed him to proceed on claims that the defendants violated his First Amendment rights by retaliating against him for assisting other inmates with their cases; conspired to implement a policy that violated his First Amendment right to freedom of expression; and conspired to destroy his personal property in violation of Wisconsin state law. Docket No. 9. The defendants have moved for partial summary judgment for failure to exhaust administrative remedies.

         I. BACKGROUND[1]

         At all times relevant, plaintiff was incarcerated at the Oshkosh Correctional Institution (Oshkosh) and then transferred to the Fox Lake Correctional Institution (Fox Lake). (Plf. PFoF, ¶¶ 3, 10; Dft. PFoF, ¶ 2.) Defendants were all employees of the Wisconsin Department of Corrections. (Dft. PFoF, 3.)

         Plaintiff alleges that, because he is a jailhouse lawyer who helps other inmates, the defendants retaliated against him by transferring him from Oshkosh to Fox Lake, issuing him conduct reports, and denying him access to, and later destroying, his legal computer disk. (Plf. PFoF, ¶¶ 1, 3, 10, 17, 18, 21.) Plaintiff alleges he administratively exhausted these claims by filing the following inmate complaints: OSCI-2016-1283, OSCI-2016-1753, OSCI-2016-2273, FLCI-2016-5906, FLCI-2016-12224, FLCI-2016-11077, FLCI-2016-13914, and FLCI-2016-19358. (Plf. PFoF, ¶¶ 9, 12, 15, 16-18.) The record shows plaintiff also filed three other relevant complaints: OSCI-2016-1284, FLCI-2016-14435, and FLCI 2016-24466. Dft. Decl, Ex. 1006-08, 1014-11, 1016-06.

         In OSCI-2016-1283, Plaintiff complained that defendant Officer Kovatch retaliated against him “for beating his conduct report, by removing/deleting [plaintiff's] legal brief/motion from his disk.” Id., Ex. 1005-11. He alleged he spoke with defendant C. Bryant “about the matter 3-times and nothing was done.” Id. The complaint was dismissed because the disk was found to be corrupt, and there was no evidence of any tampering. Id., Ex. 1005-08, 1005-09.The dismissal was confirmed on appeal. Id, 1005-09.

         In OSCI-2016-1753, Plaintiff complained that Kovatch denied him the ability to assist another inmate in “navigating the court system” by denying plaintiff “access to his intellectual property, ” which plaintiff had prepared for the other inmate. Id., Ex. 1007-06. He alleged he spoke with defendant C. Bryant “about the matter…and nothing was done.” Id. The complaint was rejected as moot. Id., Ex. 1007-04. Plaintiff did not appeal the rejection.

         In OSCI-2016-2273, plaintiff complained that Kovatch had “engaged in a series of retaliatory action[s] for [plaintiff] beating his conduct report, ” including having him moved from his housing unit to prevent him from helping another inmate with his legal case. Id., Ex. 1008-012, 1008-013. The complaint was dismissed because plaintiff “provide[d] a series of alleged events or actions that have not been demonstrated to exist in fact” and because plaintiff's move did not prevent him from continuing to assist the other inmate with his legal case. Id., Ex. 1008-06. The dismissal was affirmed on appeal. Id., Ex. 1008-10.

         In FLCI-2016-5906, plaintiff complained that he was being denied access to his legal computer disk, which he had purchased and had sent from Oshkosh to Fox Lake, and that the action “seems as a means to obstruct and impede my litigation efforts already in the courts.” Id., Ex. 1009-14, 1009-15. The complaint was dismissed with modification allowing plaintiff to have the disk sent out for printing and returned to him at his own expense. Id., Ex. 1009-11. The dismissal with modification was affirmed on appeal. Id., Ex. 1009-12.

         In FLCI-2016-12224, plaintiff complained that Fox Lake policy 900.309.02 (library policy) violated his rights because it “prevent[s] and den[ies]” him the ability to use the computer to provide legal assistance to other inmates. Id., Ex. 1011-09. The complaint was rejected as untimely having been filed on June 13, 2016, more than 14 days after plaintiff became aware of and agreed to the policy at issue on April 18, 2016. Id., Ex. 1011-02, 1011-03. Plaintiff's appeal asserted that he had “attempt[ed] to resolve the matter per. 310.09(4)” prior to filing the complaint. Id., Ex. 1011-02. The rejection of the complaint was affirmed on appeal. Id., Ex. 1011-05.

         In FLCI-2016-11077, plaintiff complained that defendant Sandra Churchill was retaliating against him by issuing him a conduct report. Id., Ex. 1010-08. He stated she retaliated because plaintiff had complained about her conduct and the library policy to defendants Chris Eplett and Randall Hepp. Id. The complaint was rejected because it was with regard to a “conduct report ‘that ha[d] not been resolved.'” Id., Ex. 1010-02. The rejection was affirmed on appeal. Id., Ex. 1010-05.

         In FLCI-2016-13914, plaintiff again complained that Churchill had retaliated against him by issuing him a conduct report because he had complained about her conduct and the library policy to Eplett and Hepp. Id., Ex. 1012-09. The complaint was rejected because plaintiff did “not allege sufficient facts upon which redress may be made.” Id., Ex. 1012-02. The rejection was affirmed on appeal. Id., Ex. 1012-05.

         In FLCI-2016-19358, plaintiff complained that Eplett confiscated his legal computer disk “to deprive [plaintiff] of [his] legal property.” Id., Ex. 1015-10. The complaint was rejected as untimely because the plaintiff failed to file it within 14 days after the completion of the appeal of the conduct report that involved the disk. Id., Ex. 1015-02. The rejection was affirmed on appeal. Id., Ex. 1015-07.

         In OSCI-2016-1284, plaintiff again complained that Kovatch was retaliating against him because he had “succeeded in beating his conduct report.” Id., Ex. 1006-08. The complaint was rejected because plaintiff failed to allege sufficient facts to support the claim. ...


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