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Kemper v. Kemper

United States District Court, E.D. Wisconsin

July 23, 2018

TERRY C. KEMPER, Plaintiff,


          J. P. Stadtmueller U.S. District Court

         Plaintiff Terry C. Kemper (“Kemper”) is a Wisconsin prisoner and a child sex offender, having been convicted of sexually assaulting a three-year-old girl. He admits to having deviant sexual fantasies concerning young girls. He chafes under prison regulations that require psychologists to review publications he orders to determine if they contain inappropriate matter, including sexualized depictions of children. He brings this action pursuant to 42 U.S.C. § 1983 against the warden of his institution, Paul Kemper (the “Warden”), [1] challenging that review process. The Warden has moved for summary judgment, (Docket #21), and for the reasons stated below, that motion will be granted.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         2.1 Kemper's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Kemper did not properly dispute them. In the Court's scheduling order, entered October 16, 2017, Kemper was warned about the requirements for opposing a motion for summary judgment. (Docket #10 at 3). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. Most relevant here is Civil Local Rule 56(b)(2), which obligates the non-movant on summary judgment to file “a concise response to the moving party's statement of facts that must contain a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B)(i).

         Next, on May 25, 2018, the Warden filed the instant motion for summary judgment. (Docket #21). In the motion, the Warden also warned Kemper about the requirements for his response as set forth in Federal and Local Rules 56. Id. at 1-2. He was provided with additional copies of those Rules along with the Warden's motion. See Id. at 3-11. In connection with his motion, the Warden filed a supporting statement of material facts and accompanying evidence that complied with the applicable procedural rules. (Docket #23, #24, #25, #26, #27). Additionally, in his legal brief, the Warden provided a short, two-page summary of the relevant facts, citing his statement of materials facts. (Docket #22 at 2-4).

         In response, Kemper submitted a legal brief, a 110-page set of exhibits, and several boxes of materials that he says are examples of publications he has been denied. See (Docket #31, #32, #32-1). In his brief, Kemper reproduced the two-page factual summary from the Warden's legal brief, interlineating his responses to the Warden's factual assertions. (Docket #32 at 1-6). He did not, however, respond in any fashion to the Warden's statement of material facts. Moreover, even his own meager effort at contesting the Warden's evidence is woefully inadequate, as he rarely cites evidence and incorporates unnecessary legal argument. See Id. Further, the Court reviewed Kemper's stack of exhibits in an effort to unearth potential factual disputes, but without his explanation as to their significance, they are largely unhelpful. See (Docket #32-1).[2] In short, nothing about Kemper's submission comes close to contesting the Warden's proffered facts as the procedural rules require.

         Despite being twice warned of the strictures of summary judgment procedure, Kemper utterly failed to dispute the Warden's proffered facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. See Waldridge, 24 F.3d at 922; Herman v. City of Chi., 870 F.2d 400, 404 (7th Cir. 1989) (“A district court need not scour the record to make the case of a party who does nothing.”). Thus, the Court will deem the Warden's facts undisputed for purposes of deciding his motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         2.2 Facts Material to the Warden's Motion

         2.2.1 The Parties

         Kemper is presently housed at Racine Correctional Institution (“Racine”), a medium-security facility. In 2003, Kemper was found guilty of first degree sexual assault of a child for having sexual contact with a three-year-old girl. See State of Wisconsin v. Terry Charles Kemper, Burnett County No. 1003CF000135. A separate charge of sexually assaulting a 13-year-old girl was dismissed but read-in for sentencing. Kemper has admitted to both offenses. Kemper has also admitted to sexually assaulting a four-year-old girl. He was sentenced to eight years in prison and ten years of extended supervision. Kemper is presently serving a sentence of imprisonment upon revocation of his extended supervision. He is scheduled to be released in 2020.

         Defendant has been the Warden at Racine since December 2012. In this position, he is responsible for the overall administration of the institution, including implementing all Wisconsin Department of Corrections (“DOC”) policies, directives, and legislative and judicial mandates. He also acts as the reviewing authority for non-medical inmate grievances filed through the Inmate Complaint Review System (“ICRS”).

         2.2.2 Publication Review

         Inmates are permitted to purchase publications from outside vendors. These purchases must meet the property and content requirements of the Wisconsin Administrative Code, Division of Adult Institutions (“DAI”) policy, as well as individual facility policies. When packages arrive, staff in the property department are the first to open and review the contents. If a publication clearly violates any policies, such as containing nudity, pornography, or encouraging violence or gang affiliation, the publication is denied and a notification is sent to the inmate.

         Kemper is not concerned with these sorts of denials made by the property department. He is instead concerned with the additional scrutiny his property receives from staff in the Psychological Services Unit (“PSU”). Inmates are prohibited from possessing publications that are inconsistent with or pose a threat to the safety, treatment, or rehabilitative goals of the inmate under DAI Policy 309.04.01(V)(F)(7) and Wis. Admin. Code § DOC 309.04(4)(c)(8)(c), or publications that are contrary to an individual's criminogenic needs under DAI Policy 309.20.03(I)(C)4.a. While officers who review incoming property are capable of identifying and denying prohibited nudity, pornography, or other clear policy violations, they are not necessarily aware of an inmate's criminal history, particularly as a sex offender, or the inmate's treatment and rehabilitative goals. Thus, it is appropriate to have trained professionals who are knowledgeable about the specific treatment or rehabilitative needs of the inmates determine the suitability of certain materials for particular inmates.

         In the case of publications containing questionable depictions of children, these may require additional scrutiny depending on the intended recipient. If such a publication arrives, the property department contacts the PSU and asks if the materials need additional scrutiny. If the PSU says yes, the items are held pending the psychologist's determination. Kemper wants a decision which would allow him to get his publications without this extra review.

         Approximately nine months ago, Dr. Lisa Buhs (“Buhs”), a licensed psychologist working in the PSU, began conducting publication reviews for the property department of those publications that are suspected to be contrary to inmates' rehabilitative needs. Prior to that time, the PSU supervisor, Dr. Michael Hagan (“Hagan”), conducted these reviews, but as he neared retirement Buhs began sharing responsibility for this task. She now conducts all publication reviews.

         Dr. Buhs has a Ph.D in psychology and has been licensed to practice psychology in Wisconsin since 2000. She has worked as a licensed psychologist at Racine for about eighteen years. She uses her education, experience, training, and professional discretion, as well as the guidelines of Wisconsin Administrative Code §§ DOC 309.04 and 309.05 and related DAI policies, to determine what materials are appropriate for inmates. Buhs reviews each publication separately and bases her decision to approve or deny each publication on the images in the publication and the appropriateness of the content for the inmate. She tries to be consistent in her decision-making.

         When deciding whether publications are appropriate for a sex offender, the inmate's treatment status is not a factor relevant to Buhs' decision. In other words, a child sex offender will not be allowed to have publications containing sexualized depictions of children regardless of whether that inmate has never been in treatment, has started but left treatment, is in treatment, or has completed treatment. Buhs opines that whatever the inmate's treatment status, a publication of this nature would be contrary to a child sex offender's rehabilitation goals.[3]

         Every one to two weeks, Kemper receives a box containing 10-20 publications which need to be reviewed by the PSU for appropriateness. Kemper estimates that he orders fifty publications per month. In each box of Kemper's publications, there are generally at least a couple of items which are approved. Kemper estimates 15-20 out of every fifty publications ordered are approved. In addition to Kemper, about 4-5 other inmates at Racine order publications requiring review by PSU. PSU reviews a total of about ten publications each year for inmates other than Kemper.

         Kemper likes to read manga, which is the written form of anime. Buhs has denied Kemper (and other inmates) anime or manga magazines and books which regularly feature sexualized depictions of young girls and magazines containing routine depictions of nudity. According to Kemper's PSU records, Kemper has said that he fantasizes about young girls, and he admits to having persistent sexually deviant fantasies regarding young girls. In addition to hindering Kemper's opportunity to focus on healthy adult sexual images, Buhs believes that giving Kemper access to sexualized images of young girls adversely affects others on his unit who are in treatment and trying to be rehabilitated.

         After Buhs identifies which publications should be denied, she is no longer involved with what happens to them. Once any necessary review is completed, the inmate receives the approved publications and notification of what items were denied using a DOC-237 form. This initiates the disposition process.

         2.2.3 Challenging Denial of a Publication

         If an inmate disagrees with a decision to deny a publication, he is permitted to file an inmate complaint through the ICRS. The complaint is received and investigated by the inmate complaint examiner, and the examiner's determination is reviewed by the appropriate reviewing authority. Kemper has complained extensively about being denied publications using the ICRS since May 2006, when he was housed at the Oshkosh Correctional Institution.

         On August 31, 2016, Kemper wrote an Interview/Information Request to the institution security director. He complained that Hagan did not have permission to approve or deny books and his doing so constituted harassment and extortion. Kemper went on to say that his belief was that only property officers and the warden on a case-by-case basis are allowed to deny publications. Deputy Warden Steven Johnson (“Johnson”) responded by memo, stating that “Dr. Hagan's assessment and denial of books in question is not harassment. Dr. Hagan is operating from within the scope of his authority ...

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