United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
se plaintiff Terrance Prude is proceeding in this
lawsuit against defendants Anthony Meli and Gary Boughton on
Fourteenth Amendment due process claims related to Meli's
alleged withholding of exculpatory evidence (a letter from an
attorney named Meyeroff) at Prude's conduct report
hearing, as well as against Meli on a First Amendment claim
related to Meli's alleged interference with Prude's
mail. I did not grant Prude leave to proceed against Meli on
the theory that Meli withheld other exculpatory letters from
two other individuals, Jones and Nistler, or that he was a
“biased decision-maker, ” since Meli did not
preside over the conduct report hearing, did not find him
guilty, and did not impose a punishment. (11/19/18 Order
(dkt. 41) at 9.) Prude sought reconsideration of that
conclusion, and on February 4, 2019, I denied his request for
reconsideration on the biased-decision maker theory, but
granted him leave to proceed against Meli on the theory that
Meli withheld the Jones and Nistler letters. (2/4/19 Order
(dkt. 54) at 3-4.)
parties are in the process of briefing dispositive motions,
but there are three pending motions that require resolution.
First, Prude filed a second motion for reconsideration. (Dkt.
55.) Second, the parties are in the process of finalizing
their submissions related to Prude's motion for summary
judgment and judgment on the pleadings, as well as
defendants' motion for summary judgment. In
defendants' July 3, reply brief, they requested an
extension of time to supplement their brief because they
inadvertently omitted proposed findings of fact and argument
related to Prude's theory that Meli withheld the Nistler
and Jones letters. (Dkt. 86, at 6.) Third, Prude responded to
defendants' motion by requesting to file a sur-reply
(dkt. 91). This order denies Prude's motion for
reconsideration and grants defendants' request for an
extension as well Prude's request to file a sur-reply.
Motion for Reconsideration (dkt. 55)
second motion for reconsideration, Prude again takes issue
with my conclusion that Meli, who was not present at the
disciplinary hearing, did not find Prude guilty, and did not
have a hand in punishing Prude, did not constitute a
decision-maker. However, Prude does not cite any authority to
support his position that Meli's involvement, in acting
as a gatekeeper of the evidence available to the disciplinary
hearing officer, became a quasi-decisionmaker.
relies on Whitford v. Boglino, 63 F.3d 527, 534 (7th
Cir. 1995), in which the court held that if an “officer
is substantially involved in the investigation of the charges
against [the] inmate, due process forbids that officer from
serving on the adjustment committee.” Id.
Prude specifically takes issue with my previous conclusion
that Meli did not resolve the disciplinary charges. However,
Prude does not dispute that another officer (Westra) actually
presided over the hearing and imposed the punishment. While
Prude argues that Meli, who shares office space with and has
authority over Westra, likely influenced
Westra's decision, those statements are nothing more than
appreciate that Prude wants to be able present as much
evidence as possible to support his due process claim against
Meli, Prude already is proceeding against him on his due
process claim on the theory that Meli withheld multiple
pieces of potentially exculpatory evidence from the hearing.
Since Prude has not alleged any additional facts related to
Meli's involvement in the disciplinary hearing, and has
not directed the court to any case law suggesting that Meli
constitutes a decision-maker for purposes of this type of
claim, I will not broaden his due process claim against Meli.
also argues that Meli's decision to deny Prude the
ability to submit evidence at the hearing was an arbitrary
abuse of power sufficient to constitute a due process claim.
See Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir.
1984). While the screening order may not have cited
specifically to the Hanrahan decision, Prude is
proceeding against Meli on the same theory. Specifically, in
screening Prude's complaint to go forward, I noted that
Meli's alleged withholding of exculpatory evidence could
violate Prude's due process rights, citing to decisions
that acknowledge that such behavior would constitute an
arbitrary abuse of power. See, e.g., Piggie v.
McBride, 277 F.3d 922, 925 (7th Cir. 2002)
(acknowledging that disciplinary hearing officers may not
arbitrarily exclude exculpatory evidence). Accordingly, since
Prude is already proceeding on a theory that Meli's
actions constituted an arbitrary use of his power, I'm
denying Prude's second motion for reconsideration.
Motion for extension (dkt. 86 at 6), and motion to file a
sur-reply (dkt. 91)
close of their reply brief in support of their motion for
summary judgment, defendants acknowledge that their
submissions in support of their motion for summary judgment
and in opposition to Prude's motions did not address
Prude's claim that Meli withheld potentially exculpatory
letters from Nistler and Jones. Defense counsel represents
this was a mistake; he had not seen the order in which I
granted Prude's motion for reconsideration in part. He
explains he had started at the DOJ two weeks before filing
defendants' motion for summary judgment on May 31, and he
regrets this oversight.
counsel should have paid closer attention to the docket, my
orders, the allegations in Prude's complaint related to
the Nistler and Jones letters (see Compl. (dkt. 1)
¶¶ 68, 69), and their Answer, which explicitly
addressed these allegations (see Answer (dkt. 53)
¶¶ 62, 63-69). Even so, I accept counsel's
representations, and the dispositive motion deadline in this
lawsuit is not until December 6, 2019, so consideration of
defendants' supplemental materials, which have already
been filed (see dkt. 87, 88, 89), will not prejudice
Prude. Because I am granting defendants' motion and will
consider their supplemental proposed findings of fact and
brief, I also am granting Prude's request to file a
sur-reply. Prude may respond to defendants' supplemental
filings by July 22, 2019. At that point, I
will not accept further briefing on these motions and take
them all under advisement.
Plaintiff Terrance Prude's motion for ...