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Long v. Harring

United States District Court, W.D. Wisconsin

June 1, 2018

PETER J. LONG, Plaintiff,



         Pro se plaintiff Peter Long, who is incarcerated at Thompson Correctional Center (“TCC”), is proceeding on a First Amendment claim that defendant Linda Harring retaliated against him after he began filing inmate complaints against her and other prison staff in September 2015, and that defendants Peter Stiefvater, Wayne Olson, and Peter Jaeger failed to intervene to prevent or stop the retaliation from occurring. Before the court are three motions filed by the parties: (1) defendants' motion for summary judgment, dkt. 36; (2) defendants' motion to strike Long's proposed findings of fact on the ground that he had filed them in lieu of a response to defendants' proposed findings of fact, dkt. 69; and (3) Long's motion for leave to file seventeen additional interrogatories, which he filed while the parties were briefing the summary judgment motion, dkt. 45. For the reasons stated below, I am granting the motion for summary judgment and entering summary judgment in favor of defendants. Accordingly, it is unnecessary to rule on plaintiff's motion for leave to file additional interrogatories. The motion to strike will be denied as moot because Long filed his response to defendants' proposed findings of fact on the same day that defendants' filed their motion, and defendants have had the opportunity to reply. See dkts. 70 and 73.

         I find that the following facts are material and not subject to genuine dispute, unless otherwise indicated.[1]


         I. The Parties

         Plaintiff Peter Long was an inmate housed at the Thompson Correctional Center (TCC) from September 9, 2015 to August 23, 2016.

         At all times relevant to this lawsuit, defendants were employees at the institution. Linda Harring was a correctional sergeant, Peter Stiefvater was a captain, Wayne Olson was the superintendent from August 2013 to November 2015 and again from May 2016 to the present, and Peter Jaeger was the acting superintendent between November 2015 and May 2016. In their roles as superintendent, Olson and Jaeger served as the Inmate Complaint Reviewing Authority (RA) under the Inmate Complaint Review System (ICRS) at TCC. Stiefvater served as an Inmate Complaint Examiner (ICE).

         II. Harring Issues Long Warnings and Conduct Report About Carhartt Jeans

         A. Approval for Jeans

         An inmate's personal property items, such as jeans, must comply with Department of Adult Institution (DAI) policy restrictions. DAI Policy 309.20.03 allows inmates to purchase personal property items from approved vendors who comply with policy restrictions and dictates that inmates must wear traditional-style jeans with traditional stitching and a maximum of four pockets and a watch pocket. Certain work release jobs allow inmates to wear other types of jeans, such as cargo-style jeans, which have more pockets. If these work jeans do not comply with DAI policy, then they can only be worn at work and cannot be worn inside the residential prison areas. It is normal practice for staff at TCC to write an inmate a warning for wearing clothing that does not conform with policy and then record that warning on the inmate's warning card unless the warning was only verbal.

         Because Long could not find a pair of jeans in the vendor catalog that fit him, defendant Olson made an exception and allowed Sergeant Randy Lewis to order Long two pair of jeans from “Work & Wear.” After Long's jeans arrived at TCC on November 11, 2015, defendant Harring completed form DOC-237 “Property Receipt/Disposition, ” on which she wrote “2 pr. carhartt 48x28/work release Generac only must send out if not on work release.” Long signed the receipt on November 13, and Sergeant Lewis signed the form on November 14, authorizing disbursement but noting that “2 pair carhartt jeans (work release per wayne) 48” x 28”.” (The parties seem to dispute whether the jeans that Long ordered were cargo-style or traditional-style. Although in response to Long's proposed findings of fact, defendants admit that the jeans Long received were a traditional relaxed fit that is permitted inside the prison, see dkt. 75 at ¶¶ 91-92, they suggest in other submissions that the jeans were a cargo-style not permitted inside the prison under the policy, dkt. 73 at ¶¶ 22-28. In any event, the parties agree that the jeans were ordered from an outside vendor with Olson's approval.)

         On June 15, 2016, Long exchanged his old Carhartt jeans for two new pairs in the TCC property department. The new jeans were not cargo-style. The disbursement request form that Long signed for the jeans stated that they were “Carhartt 5-pocket jeans.”

         B. Warnings

         On November 15, 2015, defendant Harring saw Long wearing his Carhartt jeans in the TCC dining room and issued him a verbal warning and a written warning. By themselves, warnings carry no adverse consequences: they inform rather than discipline an inmate. However, as discussed below, multiple written warnings could result in an inmate losing his seniority status for the purpose of assignment to a single cell.

         After Long received the November 15 warning, he wrote an information request to Olson, asking him to instruct his staff that he was allowed to wear his jeans at TCC and during his work release. Within seven days, Olson responded to Long's request stating, “you are approved to wear the jeans at TCC, we will inform staff.” (Olson says that at the time he responded to Long's request, he was not aware that the jeans were cargo-style, and that had he known this fact, he would not have approved them for Long to wear in the institution. Plaintiff disputes that assertion, stating that the jeans were not cargo-style and that Olson saw him wearing them around the prison.) Olson stopped working at the prison after this interaction and did not return until May 2016.

         On November 24, 2015, Harring again saw Long wearing the jeans and issued him another written warning, even though Long showed her Olson's response to his information request. On February 13, 2016, Harring issued Long a written warning stating that Stiefvater had observed Long wearing Carhartt jeans in the TCC dining room and library and warned him not to do so. (The parties dispute whether Stiefvater actually issued Long a verbal warning as Harring reported.) All three warnings appeared on Long's “Face Card” or “ID Card.” (The parties dispute whether Harring told Long about certain warnings, but there is no evidence showing that Harring was required to inform Long about a written warning and the parties do not discuss how this information is relevant to Long's claims.)

         C. Conduct Report No. 2717620

         When Harring saw Long wearing Carhartt jeans at TCC again on July 26, 2016, she wrote him a conduct report. Stiefvater approved a disposition of eight days of room confinement and loss of all electronics. However, after Long complained to Stiefvater and Olson and reminded them that Olson had given him permission to wear the jeans at TCC, the conduct report was dismissed. In addition, the three warnings related to Long's jeans were crossed off his face card.

         III. Harring Issues Long Conduct Report Following Room Inspection

         A. TCC Polices on Room Searches and Inspections

         The TCC inmate handbook explains that room searches and room inspections may be conducted at any time, either randomly or for cause. Inmates are not allowed to have contraband in their rooms, and any contraband found during a search will be removed. When Harring searches a room for contraband, she typically leaves a search notification form (DOC-1302), but she never left a search notification form for Long.

         Unlike a more extensive search for contraband, a room inspection is a cursory cleanliness check that may result in a notice that indicates what needs to be corrected. The notice cautions that “[i]f you fail a room inspection, you will be given a written warning for the first incident. . . . Repeated infractions will result in progressive disciplinary action. . . . Failure to comply with this may result in disciplinary or loss of a single cell.” The policy on room inspections does not mention contraband specifically.

         B. Inspections of Long's Room

         Harring inspected/searched (the parties argue about how to characterize this event) or participated in the inspection/search of Long's room on February 23, March 9, March 14, and April 25, 2016. Harring noted that Long had deficiencies during all of the inspections/searches and issued him warnings for failing them.

         With respect to March 9, 2016 in particular, Harring looked inside Long's room while conducting the count. (The parties dispute whether Harring had reason to look inside the room and what she saw when she did.) When she conducted a follow-up inspection/search of Long's room, she discovered eight packages of butter, which was a violation of a TCC rule prohibiting inmates from removing items from the dining hall. (Long contends it was a search because Harring removed the contraband from his room.)

         C. Conduct Report No. 2735154

         After the March 9, 2016 inspection/search of Long's room, Harring notified Stiefvater that she intended to write Long a conduct report and impose the disposition of loss of seniority. According to Harring, she sought that disposition because (1) the presumptive disposition of five days room confinement was hard to enforce against someone like Long who had a problem following rules and being in unassigned areas; and (2) Long was going to lose his seniority anyway due to the significant number of warnings he had on his Face Card. (Long avers that based on his experience at TCC, room confinement was not burdensome and was the most common disposition imposed.) Stiefvater instructed Harring to write the conduct report with the disposition of five days room confinement and not the revocation of Long's seniority.

         Because the incident had occurred at the end of her shift on March 9, Harring did not write up a conduct report for theft and disobeying orders until the following day, March 10. Long did not accept the disposition and filed an inmate complaint on March 10, alleging that Harring excessively searched his room and targeted him because his was the only room searched on March 9, 2016. In the complaint, Long admitted that he was “guilty of violating a TCC policy and procedure not to bring butters back to [his] cell” but emphasized that he “did [not] steal anything” because he “pay[s] $740/monthly room and board charges.” Harring has written three other conduct reports against inmates for taking butter from the TCC kitchen. On March 11, 2016, Stiefvater found Long not guilty on the theft charge but guilty as to disobeying orders and punished him with five days room confinement with a loss of electronics.

         IV. Long Loses Seniority and Single Cell Assignment

         A. TCC ...

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