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Price v. Friedrich

United States District Court, E.D. Wisconsin

July 16, 2018

ROLAND PRICE, Plaintiff,
v.
PHILLIP FRIEDRICH, Defendant.

          DECISION AND ORDER GRANTING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DKT. NO. 34)

          PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendant violated his civil rights at the Wisconsin Secure Program Facility (“WSPF”). Dkt. No. 1. On August 7, 2017, the court screened the plaintiff's third amended complaint, and allowed him to proceed with two claims: (1) a First Amendment claim that the defendant retaliated against him because he filed an inmate complaint against the defendant's supervisor (Captain Brown), and (2) a Fourteenth Amendment claim that the defendant attempted to impede the plaintiff's ability to litigate his appellate cases. Dkt. No. 29 at 4-5, 7.

         The defendant has filed a motion for partial summary judgment, arguing that the plaintiff failed to exhaust administrative remedies on his First Amendment retaliation claim. Dkt. No. 34. The court will grant the motion for partial summary judgment and will dismiss the First Amendment retaliation claim.

         I. FACTS[1]

         When the events in the complaint occurred, the plaintiff was an inmate at WSPF. Dkt. No. 28 at ¶¶ 7-32. The defendant is a Correctional Officer at WSPF. Id. at ¶3.

         On or around September 14, 2011, the defendant confiscated the plaintiff's “property”-a review of the entire complaint hints that this “property” was comprised of legal materials-as contraband because it had a piece of clear scotch tape attached to it. Id. at ¶¶7-11. The plaintiff alleges that the defendant was “angry, ” “heated, ” “infuriated, ” “furious, ” “argumentative” and “aggressive” as he took the plaintiff's property, and that the defendant threatened to place the plaintiff in segregation. Id. at ¶10. The plaintiff's mother called the defendant to ask about the confiscated property; the defendant responded that he had sent the property to the plaintiff's mother's house by “Spee-Dee, ” and that he had a receipt indicating that “Spee-Dee” had been unable to deliver the property. Id. at ¶12. The plaintiff says that his mother told the defendant that she'd lived at the same address for fifty years, and that she'd never received the property; the plaintiff asserts that the defendant lied about sending the property to the plaintiff's mother's home. Id. The plaintiff requested a copy of the receipt showing that the defendant had mailed the items to his mother, and according to the plaintiff, “no signature appears on it at all of [the defendant].” Id.

         A few days later, the defendant spoke to the plaintiff while on the cell block, and said, “You made the mistake it's on you go ahead and file your I.C.E. your property will not be allowed anyway; and it's out of my hands now.” Id. at ¶13. The defendant then told the plaintiff that his property had been destroyed. Id. The plaintiff alleges that the defendant destroyed his property on purpose, to stop the plaintiff from filing inmate complaints and to stop him from participating in litigation. Id. at ¶14. The plaintiff asserts that his legal materials “meant his life and he felt traumatized and devastated” when the defendant destroyed them. Id. at ¶15. He believes that the defendant confiscated and destroyed his legal materials because he had filed “multiple complaints” against Captain Brown (the defendant's supervisor). Id. at ¶¶7, 9.

         The plaintiff filed this federal lawsuit on June 26, 2015-almost four years after the events he describes in the complaint. Dkt. No. 1. The court allowed the plaintiff to proceed with a First Amendment retaliation claim based on the allegation that “(a) [the plaintiff] engaged in activity protected by the First Amendment (objecting to how the Brown conduct report was handled), (b) that [the defendant] caused him a deprivation likely to deter First Amendment activity in the future (by taking his materials so he could not file complaints or participate in the legal process), and (c) that [the defendant] did this to stop him from filing complaints or legal actions.”[2] Dkt. No. 29 at 4-5.

         The issue the defendant has raised in the motion for summary judgment is whether the plaintiff exhausted his administrative remedies on his retaliation claim prior to bringing this lawsuit. To exhaust his administrative remedies, the plaintiff would have had to file an inmate complaint through the Inmate Complaint Review System (“ICRS”). The defendant states that Cindy O'Donnell, who is the Secretary of the Department of Correction's designee for making final agency decisions on offender complaints, searched the Inmate Complaint Tracking System (“ICTS”) for all inmate complaints “relating to [the plaintiff's] clams in this lawsuit.[3] Dkt. No. 39 at ¶¶6-7. She found ten inmate complaints she thought were relevant. Id. at ¶7. The plaintiff states that “the ten complaints O'Donnell declares relevant to his retaliation are substantial to his claim, ” dkt. no. 46 at ¶6; he has not identified any other inmate complaints that he believes are relevant to his retaliation claim. Given that, the court reviewed only the ten inmate complaints that the defendant produced. See Dkt No. 40.

         The defendant appears to have produced every inmate complaint that the plaintiff filed between 2011 and 2012 that complained either about “legal property” and/or the defendant specifically. The court will discuss all ten inmate complaints below, even though only three of them (Dkt. Nos. 40-6, 40-7 and 40-8) appear to be directly relevant to the issues in the case.

         The plaintiff's first two inmate complaints, filed on June 2, 2011, involve confiscation of religious items.[4] Dkt. No. 40-1 at 4. The first inmate complaint alleged that the plaintiff should be allowed to keep a rosary and other religious jewelry/pendants because they were “grandfathered” in. Dkt. No. 40-3 at 10. The Inmate Complaint Examiner (“ICE”) dismissed this complaint because the property was “in excess” of the allowed limits. Id. at 2. The plaintiff filed an appeal, alleging that the defendant took the items in “retribution” and to “punish” him because “black inmate will not be catholic period.” Dkt. No. 40-3 at 13. The Corrections Complaint Examiner (“CCE”) recommended dismissing the appeal; the Secretary of the Department of Corrections (“the Secretary”) agreed and dismissed the appeal. Id. at 5-6.

         The plaintiff's second inmate complaint alleged that the defendant took his Bible and other religious texts because they were altered by the use of scotch tape (an item that inmates can purchase at the commissary). Dkt. No. 40-2 at 10. ICE concluded that the property was properly confiscated under §DOC 303.47, and dismissed the complaint. Id. at 2-3. The plaintiff filed an appeal, alleging that the confiscation was a “personal attack on [his] religious belief as a catholic.” Id. at 13. CCE recommended dismissing the appeal; the Secretary agreed and dismissed the appeal. Id. at 5-6.

         The plaintiff's third and fourth inmate complaints more directly relate to “legal” property. The plaintiff filed his third inmate complaint on June 15, 2011. Dkt. No. 40-4 at 1. He alleged that legal transcripts that he needed for his criminal appeal were “missing.” Id. ICE dismissed the complaint because prison staff checked the property room and determined that the legal transcripts were not there. Id. at 3. The plaintiff appealed, and in his appeal he mentioned “CO Brown” and that he was “being abuse[d] for filing complaints.” Dkt. No. 40-4 at 6. CCE recommended dismissing the appeal; the Secretary agreed and dismissed the appeal. Id. at 9-10.

         The plaintiff filed his fourth inmate complaint on June 17, 2011. Dkt. No. 40-5 at 10. He alleged that the defendant planned to destroy his legal property before he could file a writ of certiorari in state court. Id. He asked the institution to “hold” his property through the exhaustion process. Id. ICE dismissed the complaint, noting that prison policy (specifically §DOC 301.13(1)) did not require the institution to hold contraband while the inmate appealed to CCE. Id. at 2-3. The plaintiff appealed, alleging that the property was not “contraband.” Id. at 12. CCE recommended dismissing the appeal; the Secretary agreed and dismissed the appeal. Id. at 5-6.

         The plaintiff filed all the above complaints months before the incident he describes in his federal civil rights complaint. The plaintiff's next three inmate complaints, filed between November 2011 and January 2012, alleged that the property discussed above (both the religious and legal property) was improperly destroyed. Dkt. Nos. 40-6, 40-7, 40-8. One inmate complaint alleged that the “property room” stole his property, and the plaintiff lists his mother's address at the bottom (where he presumably wanted his property sent after it was deemed “contraband”). Dkt. No. 40-6. The other two inmate complaints alleged that the defendant destroyed the property without notice. Dkt. Nos. 40-7, 40-8. ICE rejected the first and third inmate complaints as untimely filed. Dkt. Nos. 40-6 at 2, 40-8 at 2. ICE rejected the second inmate complaint because it had been addressed in a prior inmate complaint. Dkt. No. 40-7 at 2. The plaintiff appealed only the third rejection, reiterating that he “did not receive any notice;” the Reviewing Authority upheld the rejection. Dkt. No. 40-8 at 4, 8.

         The plaintiff filed three more inmate complaints while incarcerated at the Columbia Correctional Institution (“CCI”), alleging that some of his property from WSPF did not arrive at CCI. See Dkt. Nos. 40-9, 40-10, 40-11. The first inmate complaint mentions the defendant by name as the individual who packed up his property for transfer to CCI. See Dkt. No. 40-9 at 8. The second two inmate complaints involve issues with the “chain of command” that the plaintiff had to use to acquire his missing property at CCI. Dkt. Nos. 40-10, 40-11. ICE rejected the first complaint as untimely filed. Dkt. No. 40-9 at 2. ICE rejected the second and third inmate complaints because they complained of issues that already had been addressed in prior inmate complaints. Dkt. Nos. 40-10 at 2, 40-11 ...


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