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Winius v. Pawlak

United States District Court, E.D. Wisconsin

July 23, 2019

MICHAEL T. WINIUS, Plaintiff,
v.
KRISTEN L. PAWLAK, LISA BUHS, PAUL KEMPER, ROBIN DIEBOLD, CPT. THOMAS WIEGAN, MARK HIESE, JON E. LITSCHER, and STEVEN JOHNSON, Defendants.

          SCREENING ORDER

          William C. Griesbach, United States District Court Chief Judge

         On July 26, 2018, Plaintiff Michael T. Winius, who is currently serving a state prison sentence at Prairie Du Chien Correctional Institution (PDCI) and representing himself, filed a complaint in Dane County Circuit Court under 42 U.S.C. § 1983. Defendants removed the action to the U.S. District Court for the Western District of Wisconsin on February 27, 2019 and filed a motion to transfer the case to this court. After briefing on the motion, the Western District court granted Defendants' motion and transferred the case to this court on June 27, 2019. In the transfer order, the court noted that “the complaint has not yet been screened under 28 U.S.C. § 1915A.” Dkt. No. 9 at 5. The $400 filing fee was paid upon removal to the Western District. See Dkt. No. 1, Docket Text. The court will now proceed to screen Winius' complaint, as required under § 1915A.

         Screening of the Complaint

          The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To state a cognizable claim under the federal notice pleading system, Plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         Allegations of the Complaint

         During all times relevant to this action, Winius was confined in Racine Correctional Institution (RCI) and each of the defendants was employed at RCI, with the exception of Mark Hiese and Jon Litscher, who worked for the Wisconsin Department of Corrections (DOC) in more general roles. In October 2017, the same month that Winius filed a lawsuit (17-CV-1455) against Lisa Buhs and Kristen Pawlak in this court, Winius' fiancée, Spring Ristola, discovered that Pawlak, a social worker and co-facilitator of RCI's Beacon sex offender treatment program, was blogging about Winius and other Beacon participants. While Winius was not personally named in the blog posts, he alleges that Pawlak included sufficient information for him to be identified and disclosed his sensitive health and treatment information. Winius alleges that, in her blog, Pawlak referred to Winius and his peers as psychopaths, degenerates, con men, nasty sex offenders, and narcissists.

         On October 31 and November 1, 2017, Winius and Ristola filed complaints about Pawlak's blogging and notified Buhs, an RCI psychologist and co-facilitator of the Beacon program, and RCI Warden Paul Kemper about the conduct. Winius alleges that Buhs and Pawlak knew about his intent to file 17-CV-1455 before its filing. He alleges that after he filed 17-CV-1455 and reported Pawlak's blogging activities, the defendants “engaged in an all-out retaliatory campaign against [him.” Dkt. No. 1-1 at 4. The complaint identifies numerous instances of retaliatory conduct beginning from prior to the filing of 17-CV-1455 and continuing for several months after its filing. These instances include:

June 12, 2017: Winius applied to add Seanne Ristola and A.S.R., Spring Ristola's daughters, to his visitation list. Some months later (presumably after October 2017), Kemper and DOC Secretary Litscher denied the visitation request and ensuing appeals based on Pawlak's false statements.
October 20, 2017: Pawlak completed DOC forms 745, 1423, and 3484, each of which was riddled with false information and errors, according to Winius. Winius alleges that Pawlak knew these forms would carry weight in the DOC's visitation and Program Review Committee (PRC) determinations, among other things.
November 8, 2017: Buhs, Kemper, RCI Deputy Warden Steven Johnson, and Captain Thomas Wiegan ordered, and RCI Prison Rape Eliminate Act Coordinator Robin Diebold conducted, a 70-minute cell search of Winius' cell, leaving his cell “in total ruin.” November 9, 2017: Buhs authored an allegedly false conduct report with contributions from Pawlak, Kemper, Johnson, Diebold, and Wiegan, as well as other Beacon participants. The next day, on November 10, 2017, Winius was placed in the Restrictive Housing Unit (RHU) until December 1, 2017. Winius claims the advocate he was assigned for the conduct report hearing, whose family member was friends with Buhs and Pawlak, had a conflict of interest. Winius also claims that Diebold and Wiegan denied him access to legal materials for 17-CV-1455 while he was in RHU.
December 4, 2017: Upon release from RHU, Winius was placed in Green-West Unit, a behavioral modification unit, rather than in general population. Wiegan informed Winius that his conduct hearing had been postponed for 21 days and that a guilty plea would result in an 8-day confinement while not taking the plea could result in a year in RHU. Given the risk of year-long placement in RHU, Winius reluctantly entered a guilty plea despite believing himself innocent of Pawlak's claims.
December 5, 2017: Winius was transferred from Green-West Unit cell 111 to 114, which had an unsecured door that, on December 7, resulted in $62 dollars being stolen from his cell.
December 7, 2017: A PRC hearing was held to determine whether and where Winius would be transferred. Winius alleges that Wiegan, Johnson, Kemper, and Director of the Bureau of Offender Classification and Movement Hiese circumvented Wisconsin Administrative Code DOC Chapter 302 and decided to transfer him to PDCI to impede his pre-release initiatives, to prevent him from ...

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