United States District Court, W.D. Wisconsin
MARTIN R. BUB, Plaintiff,
WILLIAM SWIEKATOWSKI, JOHN DOE, CAROL ROWE, ELIZABETH MASON, MICHAEL SCHULTZ, PETE ERICKSEN, MICHAEL BAENEN, MICHAEL MOHR, CHARLES FACKTOR, RICHARD PROCESS, WENDY BRUNS, SAMUEL MENNING, CHRISTOPHER STEVENS, and CHARLES COLE, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Martin Bub, appearing pro se, is a former state of Wisconsin
inmate. Bub alleges that when he was incarcerated at Green
Bay Correctional Institution, defendant prison officials
retaliated against him in a number of ways for defending
himself against a conduct report, and for helping his
girlfriend with a lawsuit against prison officials. In
particular, he alleges that prison staff spiked his urine
sample with cocaine and then violated his due process rights
in the ensuing disciplinary proceedings. I allowed him to
proceed on claims under a variety of legal theories. Both
sides have filed motions for summary judgment.
deny Bub's motion for summary judgment because the facts
provided by the parties do not show that he is entitled to
judgment as a matter of law on any of his claims. I will
grant defendants' motion for summary judgment on many of
Bub's claims, largely because Bub fails to present facts
showing that many of the defendants were personally involved
in retaliating against him or otherwise harassing him. But I
will deny defendants' motion with regard to aspects of
Bub's claim that defendant William Swiekatowski
retaliated against him and his claims that defendants Samuel
Menning and Christopher Stevens violated his rights under the
the following facts from the parties' summary judgment
materials. They are undisputed unless noted otherwise.
Martin Bub is a former state of Wisconsin inmate. His claims
concern events occurring while he was an inmate at Green Bay
Correctional Institution (GBCI). Several of the defendants
worked at GBCI: William Swiekatowski was a lieutenant,
Richard Process and Samuel Menning were correctional
sergeants, Pete Ericksen was the security director, Michael
Schultz and Christopher Stevens were captains, Michael Baenen
was the warden, Wendy Bruns was the program review
coordinator, and Michael Mohr was a complaint examiner.
Defendant John Doe also worked at GBCI. Another set of
defendants are DOC officials: Charles Facktor was a
corrections complaint examiner. Defendant Charles Cole was
employed as the designee for the secretary of the DOC on
inmate grievances. Defendants Elizabeth Mason and Carol Rowe
worked at the DOC's Drug Abuse Correctional Center,
located in Winnebago, Wisconsin.
15, 2010, defendant Swiekatowski issued Bub a conduct report
alleging that Bub's girlfriend, Kathleen Sell, was
smuggling drugs into the prison for him. Bub was later found
not guilty of those charges. Sell filed a notice of claim
with the attorney general stating that state officials
defamed her in making those accusations.
says after his successful defense against the conduct report,
prison staff, orchestrated by Swiekatowski, Ericksen, and
Baenen, commenced a “campaign of harassment”
against Bub, in retaliation for Bub successfully defending
himself and for helping his girlfriend with her lawsuit
against prison officials. Specifically, Bub says that he was
subjected to an inordinate number of strip searches, cell
searches, and urinalyses (UAs). Staff opened his outgoing
mail, monitored his phone calls, and made his visits with
Sell uncomfortable by often seating them at a table close to
the guard desk that several cameras could watch. Defendants
say that Bub was not searched or monitored any differently
than any other inmate at the institution.
instance, defendants say that from August 2010 to December
2011, Bub's cell was searched ten times, all by
non-defendants. The DOC's goal is to search every cell
about once a month. Bub says that there were
“numerous” more cell searches that the
defendants say that inmates are routinely strip searched
after each contact visit they receive, and also prior to
giving a urine sample for the testing of illicit substances.
Non-routine strip searches are logged on a form, but Bub says
that he was searched more often than is reflected on the
say that urinalyses are generally conducted randomly and the
inmates who need to give a urine sample on any given day are
chosen by a computer, not staff at Green Bay. Inmates may be
subject to testing for cause if a staff member, from direct
observation or reliable sources, has reasonable grounds to
believe that the inmate has used, possesses, or is under the
influence of intoxicating substances. The GBCI logs show no
random UAs for Bub during the time in question, and one
“for cause” UA discussed below. Bub says that
defendants performed “numerous” more UAs than
what they logged into the system.
March 5, 2011, Bub was issued a conduct report that claimed
prison staff found marijuana in Bub's cell. Bub was found
guilty and given a disposition of 90 days of disciplinary
April 15, 2011, Bub filed a grievance about what he believed
was harassment from defendant Ericksen. Bub said that his
cell was searched frequently, he was receiving strip
searches, and he was being watched closely on visits by
officers under Ericksen's command. Defendants Mohr and
Baenen were two of the reviewers who denied his grievance.
5, 2011, Bub requested an early “program review”
asking to be moved to another maximum-security prison because
Bub says that he feared for his safety. Several days later,
defendant Bruns denied Bub's request.
early December 2011, an officer gave Bub legal papers
belonging to Sell that had been held by another prisoner,
Akimbo Hashim-Tiggs, as he helped her with her lawsuit
against GBCI staff, including Ericksen and Swiekatowski.
Defendants say that the legal documents were confiscated from
Hashim-Tiggs because the inmates were not using the proper
channels to send legal work between inmates. Swiekatowski
monitored communications between Bub and Hashim-Tiggs, and at
one point he read at least some mail between Sell and Bub.
a day or two, Swiekatowski came to Bub's cell and asked
Bub if he got the legal work back. He then told Bub that
“he had not forgotten about [Bub] and the promise
[Swiekatowski] made to him, ” which Bub took as a
threat. Dkt. 15, at 8.
December 14, 2011, defendant Stevens told defendant Menning
to search Bub's cell and conduct a strip search because
an inmate told Stevens that Bub was acting strange at the
evening meal. Bub says that he was not at this evening meal.
says that he noticed unusual behavior as he interacted with
Bub: he was walking unbalanced, seemed unable to focus, and
his pupils darted back and forth. Bub says that none of this
is true, and that he acted normally. Stevens ordered a
urinalysis for Bub based on the suspicion that he was under
the influence of an intoxicant. Bub says that he was not
under the influence.
Bub sought a copy of the document showing the reason for the
“for cause” UA, defendants were unable to find
the document. Months later they produced it, but Bub believes
that this delay shows that Menning and Stevens fabricated a
backdated incident report to justify the UA that was ordered.
December 16, 2011, Bub was awakened early in the morning for
a urinalysis. Bub provided the sample to defendant Process,
Bub signed his name “M. Bub” on the donor line of
the tamperproof seal. Bub watched Process sign his name on
the collector's line of seal and then place it over the
specimen cup. Both Bub and Process also signed a “chain
of evidence” form. Bub's sample was sent to the
DOC's Drug Abuse Correctional Center (DACC). Defendant
Swiekatowski does not communicate with the personnel at DACC.
defendant Rowe unpacked Bub's sample at DACC, she
verified that the seal on the sample bottle was intact and
Bub's name and the date on the bottle matched his name
and the date on the chain of evidence form. Defendant Mason
was the technician who cracked the seal on Bub's urine
sample and pipetted the urine into the labeled test tube,
ensuring that the name, DOC number, and specimen ID number on
the bottle matched with the information on the test tube.
sample returned a positive result for cocaine at DACC and
again at a confirmation test at an outside lab. Part of the
two-piece label seal going onto the new bottle for the
portion of the sample sent for confirmation was also placed
onto the chain of evidence form, showing Rowe as the
“collector” of that sample. I take defendants to
be saying that this is why Rowe's name, and not
Process's, appeared on the label used at Bub's
December 22, 2011, defendant Swiekatowski put Bub in
temporary lockup for testing positive for cocaine. He
received a conduct report for possession of intoxicants. Bub
says that he had not taken cocaine, so he could not have
tested positive for it. Swiekatowski told Bub something to
the effect of, “I told you I would get you, you never
should have made me look bad with all of your complaints and
your girl suing me. Now I am gonna bury you.” Dkt. 15,
December 23, 2011, Bub was given a copy of his conduct
report. Inmates are instructed in the conduct report
documentation that the hearing will be held no sooner than
two days, and generally not more than 21 days, after the date
that they are given a copy of the conduct report. The hearing
was initially scheduled for January 9, 2012.
requested the presence of two witnesses at the hearing and
the ability to review some evidence, including the chain of
custody report for his urine sample and a photocopy of the
urine-sample label with his signature on it.
witness requests were denied under the reasoning that the
hearing was to be held during second shift, and the requested
witnesses worked during the first shift. Bub was instead
allowed to submit written questions to the witnesses.
Security Office Operations Associate Perttu said that Bub
would be able to see a copy of the tamperproof seal with his
signature. At the request of Bub's advocate, the
disciplinary hearing date was postponed to wait for
confirmation test results and conduct further research.
says that on January 18, 2012 at about 9:00 a.m., he was
awakened by a first-shift sergeant who told him that his
disciplinary hearing was to be held immediately. According to
Bub, once he arrived at the hearing he was told that a new
advocate had been assigned to the case. Bub says that he
immediately objected to a new advocate, as Bub had never
discussed the case with him. Bub also says that he objected
to the lack of notice of the hearing.
Schultz decided to allow the hearing to proceed over
Bub's objections. The advocate did not help Bub at the
hearing. Bub noticed that the tamperproof seal was not the
one that he and Process had signed. He argued that the sample
may have become contaminated when he dropped the container
during the UA. Process stated in his response to Bub's
written questions that the urine sample container did fall on
the floor, but that the lid did not come off. Officer Petri,
who was apparently also present during the UA, stated in
response to written questions from Bub that the cup fell on
the floor, and that the lid remained on the cup.
reviewed the conduct report, the chain of evidence form
including the tamperproof seal, the drug test results, the
written responses to Bub's questions by Process and
Petri, and Bub's verbal statement. He concluded that it
was more likely than not that Bub used cocaine. Bub was found
guilty and given a sentence of 360 days in disciplinary
this hearing, Bub filed an appeal and multiple grievances
challenging the decision, sentence, and perceived procedural
shortcomings at the hearing. On August 9, 2012, through his
attorney, Bub filed a petition for writ of certiorari in the
Dane County Circuit Court. In May 2014, Judge Juan Colas
issued an order granting the writ and directing the
expungement of the conduct report because of procedural
problems with the hearing. Judge Colas determined that prison
officials did not give Bub proper notice of the hearing,
switched his advocate ...