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Bub v. Swiekatowski

United States District Court, W.D. Wisconsin

March 29, 2019

MARTIN R. BUB, Plaintiff,



         Plaintiff 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.

         I will 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 Fourth Amendment.


         I draw the following facts from the parties' summary judgment materials. They are undisputed unless noted otherwise.

         Plaintiff 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.

         On June 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.

         Bub 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.

         For 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 documentation shows.

         Similarly, 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 form.

         Defendants 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.

         On 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 separation.

         On 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.

         On June 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.

         In 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.

         Within 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.[2] Dkt. 15, at 8.

         On 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.

         Menning 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.

         When 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.

         On 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.

         When 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.

         Bub's 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 disciplinary hearing.

         On 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, at 8-9.[3]

         On 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.

         Bub 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.

         The 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.

         Bub 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.

         Defendant 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.

         Schultz 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 separation.

         Following 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 ...

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