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Singh v. Marks

United States District Court, W.D. Wisconsin

March 27, 2019

AMAN SINGH, Plaintiff,



         Plaintiff Aman Singh, a resident of Greenfield, Wisconsin, brings claims that various state officials unconstitutionally deprived him of opportunities to participate in the Earned Release Program while he was incarcerated; that they rescinded “positive adjustment time” that he was eligible to learn, in violation of the Ex Post Facto Clause; and that they denied him access to records that would have proven one of his ex post facto claims about positive adjustment time.

         Defendants have filed a motion for summary judgment, to which Singh did not respond by the deadline set by the court. Singh followed with a motion for an extension of time to file a summary judgment that I denied. See Dkt. 80. So I will treat defendants' proposed findings of fact as undisputed in considering their summary judgment motion.

         I will grant defendants' motion for summary judgment on each of Singh's claims. In particular, I conclude that the undisputed facts show that Singh was ineligible for the Earned Release Program because he was in medium-security custody, not because of any retaliatory or unequal treatment by defendants. I conclude that defendants are entitled to qualified immunity on Singh's positive-adjustment-time claims because defendants merely carried out statutory changes that were not patently unconstitutional. And I conclude that Singh cannot prevail on his access-to-the-courts claim, because he was not impeded in litigating a case, nor did he lose a case because of defendants' actions.


         I draw the following facts from defendants' summary judgment materials and publicly available court records of plaintiff's criminal proceedings.

         In 2008, plaintiff Aman Singh was charged with five counts of obtaining a controlled substance by fraud. He pleaded guilty to one count and the others were dismissed. In 2010 he was given a stayed sentence of 18 months in prison and 18 months of extended supervision, and he was released on probation. See Waukesha County No. 2008CF1368. I will refer to this conviction as Singh's first. After his second offense, discussed below, Singh's probation for his first conviction was revoked.

         In November 2011, Singh pleaded guilty to obtaining a controlled substance by fraud in July 2011. He received a bifurcated sentence of two years in prison and three years of extended supervision, consecutive to the first conviction. See Milwaukee County No. 2011CF4004. I will refer to this conviction as Singh's second.[2]

         In another case, Singh pleaded guilty to another count of obtaining a controlled substance by fraud on August 10, 2011. He received a bifurcated sentence of two years in prison and three years of extended supervision concurrent to his other sentences. See Milwaukee County No. 2011CF4192. I will refer to this conviction as Singh's third.

         Singh was admitted to Dodge Correctional Institution on January 4, 2012.

         A. Earned Release Program

         The Earned Release Program (ERP) is a substance abuse treatment program administered by the DOC that defendants say “involves intensive group counseling, individual rehabilitation goals, restorative justice, reintegration modules, and any other programming that the department determines would be appropriate to assist in successful return to the community.” Dkt. 75, at 12, ¶ 45. The program is “highly structured” and time consuming, and it took about six months to complete. Eligibility for ERP is determined by the sentencing court.

         One of the requirements for placement in ERP is that the prisoner is in minimum-security status or lower. A prisoner in medium security could not be placed in ERP. Before March 1, 2013, it was the department's practice to bar inmates with active legal actions from participation in ERP, under the theory that inmates working on legal matters or going out to court would miss required ERP treatment activities. DOC staff also thought that an inmate appealing his conviction would be unwilling to admit or discuss factors contributing to his substance abuse while his case was being appealed. Singh's sentencing court for his second and third convictions found him eligible for ERP consideration by the department with the condition that he serve a minimum of 12 months in confinement for those cases prior to any ERP enrollment.

         Singh was initially placed in minimum-security custody. On June 11, 2012, while he was incarcerated at Racine Correctional Institution, Singh was found guilty of attempted escape, enterprising or fraud, and gambling. Singh was disciplined for writing and trying to send a letter to another inmate that discussed the possibility of escaping the prison from his job at the RCI garage and how he would do that, for gambling by playing chess for canteen items, and for selling his services for profit by typing things for others. This discipline caused Singh's custody level to be reviewed: on June 27, 2012, he was elevated to medium-security custody.

         Singh was scheduled for a February 26, 2013 reclassification review before the program review committee (PRC). The PRC reviews a prisoner's offenses, offense dynamics, offense history, sentence structure, institution behavior and adjustment, medical needs, risk rating, and program needs. Id. at 20-21, ¶ 96.

         Defendant Sara Bellis, a social worker, met with Singh before the hearing. Singh asked for a reduction to minimum custody and placement in ERP. Bellis prepared a report for the PRC hearing. In the “Staff Appraisal and Recommendations” section of the report, Bellis stated that she did not support Singh's request to be placed in medium-security custody with ERP because of Singh's “risk rating, time remining to release, unmet offense related programming (AODA Residential) and institution adjustment.” Dkt. 60-4, at 4. She stated that “it is clear, based on his offense history and current offenses, that he has distorted thoughts about the appropriateness in trying to obtain controlled medications by fraudulently writing himself approximately 60 prescriptions.” Id. She also noted that he was ineligible for ERP because of his criminal appeals. Bellis recommended Singh's placement at another medium institution to address his alcohol- or drug-treatment needs or that he be added to the waiting list for the Cognitive Group Intervention Program to address his “distorted thoughts” about substance use and abuse.

         Defendants Marks, Decker and Thomas Wiegand sat on the PRC for the February 26 review of Singh's classification. Marks recorded the PRC's findings and ruling. The PRC found that Singh's adjustment had been “mixed, ” noting one minor and one major conduct report since reception. Marks stated that Singh “minimized” the major conduct report, “making it out to be no big deal” and explaining that he was found guilty only of attempted escape. Id. at 6. Marks also stated that “[Singh's comments] show his perception of his offenses, how he believes there were no victims.” Id. The report stated that because Singh was appealing his 2011 convictions, he was not eligible to participate in ERP. The PRC recommended continued medium-security placement because of Singh's unmet offense-related program need, the seriousness of his offense, his serious conduct violation and recent elevation to medium-security status, and the statements he made during the hearing. The PRC issued its written decision on March 8, 2013.

         On March 6, 2013, before he received the written decision, Singh requested an administrative review of the classification decision. Defendant John Bett, an appeal examiner, rejected Singh's request, stating that Singh was not allowed to file for review before Singh had received the written decision, and that there were no factual errors in the decision available to Bett. Shortly thereafter, Singh submitted an information request form to defendant Warden Paul Kemper, asking whether it was true that AODA treatment in the Earned Release Program was not available unless a prisoner waived his right to appeal. Kemper responded, stating that no further action was needed because Bellis had given Singh a memorandum about the conditions for ERP enrollment, and a unit manager talked with Singh about the requirements for enrollment.

         B. Positive adjustment time

          In 2009, the Wisconsin Legislature enacted 2009 Wisconsin Act 28, which created an opportunity for prisoners to receive “positive adjustment time” (PAT). Starting October 1, 2009, certain inmates could earn earlier release from prison (with conversion of that time into extended supervision) by following prison regulations and by performing their assigned duties. An inmate with felonies of the type Singh was convicted could earn one day of PAT for every two days he did not violate prison regulations or neglect his assigned duties. See Wis. Stat. § 302.113(2) (b) (2009-10). When an inmate was within 90 days of being released early under this law, the DOC Parole Commission would notify the sentencing court that it intended to modify the inmate's sentence, giving the court a chance to schedule a hearing to review that decision. Section 302.113(2)(c) (2009-10). Under these provisions, an inmate could be released on the very first day he was eligible for early release with PAT.

         In 2011, the Wisconsin Legislature enacted 2011 Wisconsin Act 38, which repealed most of this scheme. As of August 3, 2011, inmates could no longer earn PAT. The early release process changed for those who had already earned PAT during the two years it was in effect. Inmates now had to petition the sentencing court to be released early, rather than the DOC Parole Commission (then known at the Early Release Commission). And the earliest an inmate could file his petition was the first day he was eligible for early release. Wis.Stat. § 973.198 (2011-12). Because the full process for review of the petition could take 90 days, this meant than an inmate filing a petition might not be released until 90 days after his first eligibility.

         In both 2009 and 2011, the DOC created steering committees to plan changes in department policies, forms, and trainings so that the new laws could be implemented. The 2011 committee included, among others, defendants Mark Heise, Sally Tess, Carol Briones, Kathryn Anderson, Tony Streveler, Dennis Baskins, Shirley Storandt, and Cathy Jess. The committee formed an “Act 28 Repeal Implementation subcommittee” to review the changes to statutory language and recommend necessary policy changes. Among those on the subcommittee were defendants Heise, Tess, Briones, Anderson, Streveler, Baskins, Storandt, Danielle LaCost, and Deborah Seitz.

         Defendant Jess was the Division of Adult Institutions administrator at the time. Jess, along with other members of the larger group, oversaw the work of the subcommittee and received minutes. As DAI administrator, Jess reviewed and approved the DAI policies and procedures drafted by the subcommittee. Defendants say that they did not ...

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