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Turner v. Brown

United States District Court, W.D. Wisconsin

July 30, 2019

GLENN T. TURNER, Plaintiff,
v.
LEBBEUS BROWN, MARK KARTMAN, WILLIAM BROWN, GARY BOUGHTON, LACEY DICKMAN, HEIDI BLOYER, JULIE BULMANN, and ZACHARY BERGER, Defendants.

          OPINION AND ORDER

          James D. Peterson District Judge.

         Pro se plaintiff Glenn T. Turner, a prisoner housed at Wisconsin Secure Program Facility, alleges that prison officials violated his constitutional rights in various ways when they refused to advance him through the prison's “High Risk Offender Program” and confiscated his inhaler even though they knew that he was at risk for an asthma attack. Before the court are the parties' cross-motions for summary judgment. Dkt. 16 and Dkt. 33. Because there are genuine disputes of material fact that preclude summary judgment for plaintiff, I will deny his motion in full. As for defendants' motion, I will grant it as to plaintiff's equal protection claim and all of his claims against defendants William Brown, Gary Boughton, Mark Kartman, and Lacey Dickman. I will deny the motion in all other respects. Also before the court is a motion to compel discovery filed by Turner. Dkt. 46. Because defendants have responded stating that they provided the sought information to Turner already, Dkt. 58, and Turner has not filed a reply, I will deny the motion to compel as moot.

         UNDISPUTED FACTS

         The following facts are undisputed unless otherwise noted.

         A. The parties

         Plaintiff Glenn Turner is an inmate at Wisconsin Secure Program Facility (WSPF) and he was housed at WSPF in the Foxtrot unit during the events of this lawsuit. Turner has filed numerous complaints with the inmate complaint review system at WSPF concerning prison conditions and alleged staff misconduct, has published articles about solitary confinement in Wisconsin prisons, and was interviewed by GQ Magazine about his experience in solitary confinement.

         All defendants were employed at WSPF during the relevant time period: Gary Boughton was the warden, Mark Kartman was the security director, Heidi Bloyer was a sergeant in the Foxtrot unit, Lebbeus Brown was a captain and manager of the Foxtrot unit beginning in July 2016, Julie Bulmann was a correctional officer in the Foxtrot unit, Zachary Berger was a relief sergeant, Lacey Dickman was a social worker in the restrictive housing unit, and William Brown was an institution complaint examiner.

         B. High Risk Offender Program

         The High Risk Offender Program (HROP) was a three-phase program at WSPF designed to facilitate the reintegration of inmates on administrative confinement status back to general population.[1] The program gave inmates with serious or chronic behavioral issues an opportunity to acquire the skills needed for successful transfer to a less controlled status or facility.

         Inmates began HROP in the “red” phase and were required stay on the red phase for at least four months. The next phase was the “yellow” phase, which also had a four-month minimum length of stay. The final phase was the “green” phase, which had a seven-month minimum length of stay. An inmate's movement within the program was determined by the inmate's compliance with the program, participation in programming, and the risk posed by the individual inmate. As an inmate progressed through each phase, he got more privileges and programming opportunities. If an inmate completed HROP successfully, he was recommended for placement in general population. At any time, inmates participating in HROP could be recommended by the unit team for demotion to a more restrictive phase based on behavior, the receipt of conduct reports, or failure to participate in or complete appropriate programming.

         The HROP unit team was a multi-disciplinary team that met weekly to discuss the performance and progress of inmates participating in HROP. The team recorded each inmate's participation and progress through HROP and made recommendations about movement through the program on a DOC-30B form, which was signed by the social worker and unit manager. The recommendations were discretionary. The team forwarded the form to the security director for review, who then forwarded the team's recommendation to the warden for his final approval or denial.

         In 2015 and 2016, all inmates participating in HROP were housed on the Foxtrot unit. Defendants Dickman and Lebbeus Brown led the HROP team beginning in July 2016. Defendants Bloyer and Bulmann were also on the team. Defendant Kartman reviewed the recommendations of the HROP team and defendant Boughton gave final approval or denial of recommendations. As a relief sergeant who worked in multiple units, defendant Berger was not a member of the HROP team and had little influence over whether an inmate would progress through HROP.

         C. Turner's participation in HROP

         Turner was recommended and approved to participate in HROP in January 2015. At the time, Captain Primmer was the manager of the Foxtrot unit and Captain Gardner was the security director. (Neither Primmer nor Gardner are defendants in this lawsuit.) In January or February 2015, Turner began the red phase. At the February, March, and April 2015 reviews, the HROP unit team decided to keep Turner on the red phase because he had not yet completed the four-month minimum and because he had received multiple warnings for rule violations. (The rule violations did not lead to conduct reports and appear to have been relatively minor, including being loud during quiet hours, attempting to keep peanut butter from his meal tray, and refusing to show his hands during a cell interview with a psychologist. Dkt. 38-1 at 5, 6.) At his May 2015 review, the HROP team recommended that Turner be promoted to the yellow phase, despite Turner having received a rule violation warning in April for asking staff to get cookies from another inmate. Dkt. 38-1 at 8. Security Director Gardner agreed with the recommendation and Warden Boughton approved it.

         Turner continued on the yellow phase in June, July, and August 2015. In September 2015, the HROP unit team recommended that Turner be promoted to the green phase, noting that he had completed programming and was demonstrating positive behavior in several areas. Dkt. 38-1 at 16-17. But Gardner recommended that Turner remain on the yellow phase because he had made an inappropriate sexual statement to a female staff member on September 6, 2015. Id. at 17. Warden Boughton denied the recommendation of promotion to the green phase based on Turner's sexual statement to the staff member.

         In October 2015, the HROP unit team and Kartman recommended that Turner be promoted to the green phase, noting that he had received no rule violations in the last 30 days. Id. at 18-19. But a few days after the team and Kartman made their recommendations, Turner received warnings for refusing to take off his “head gear” when directed, kicking his door, and screaming during meal handout. Id. at 20. The unit team and Kartman amended their recommendations, stating that Turner should be demoted to the red phase. Id. at 21. Warden Boughton agreed, and Turner was demoted to the red phase in November 2015.

         In December 2015 and January 2016, the HROP team recommended that Turner remain on the red phase for monitoring. Id. at 22-23. In February 2016, the team recommended that Turner be promoted to the yellow phase, and both Kartman and Boughton agreed. Id. at 27. Despite some misbehavior on February 6 and 13, 2016, Turner remained on the yellow phase in March 2016.

         In April 2016, the HROP unit team recommended that Turner be promoted to the green phase. Kartman and Boughton approved the recommendation, and Turner was promoted to the green phase on April 7, 2016. Turner remained on the green phase in May, June, and July 2016, even though there were some rule violations noted during this period, including: yelling at staff during phone calls and refusing to quiet down (May 5, 2016), telling staff to “fuck off” (May 6, 2016), and misusing the emergency intercom to ask for chips (June 9, 2016). Id. at 34, 36.

         Captain Primmer put Turner on the enrollment list for “Thinking for Change, ” a green-phase program that was scheduled to begin in late June or July 2016. In July 2016, defendant Lebbeus Brown became manager of the Foxtrot unit and began leading the HROP unit team. Brown removed Turner from the “Thinking for Change” enrollment list. (Turner says that Brown told him that he was taken off the list because he “ma[kes] our job difficult by your constant complaining and court actions. And we can make your life difficult as well.” Turner says that Brown also stated, “You need your asthma inhalers so you can breathe and without them it'll be very difficult on you. You understand what I'm trying to say?” Brown denies saying this to Turner and denies threatening to take away Turner's inhaler.) Turner filed an inmate complaint about being removed from the program, but the inmate complaint examiner, Ellen Ray, recommended dismissal of the complaint on the ground that program assignments are not reviewable under the inmate complaint review system. Dkt. 39-1 at 2. Boughton accepted the recommendation and dismissed the inmate complaint.

         Turner also alleges that throughout 2015 and early 2016, Captain Primmer and staff from the psychological services unit, including defendant Dickman, told him that the unit team had been instructed by defendant Lebbeus Brown to “not promote plaintiff to green phase HROP and to find any reason to prevent his progression.” Turner also says that numerous times in July and August 2016, defendants Bloyer, Berger, Brown, and Dickman told him to stop “filing complaints about everything!” Defendants deny that Lebbeus Brown ever told the unit team to inhibit Turner's progression through HROP and deny telling Turner to stop filing complaints.

         In August 2016, the HROP team identified several rule violations involving Turner that were listed in the unit's behavior log in July 2016: “fishing” (inmates passing property from one cell to another under the doors, using a string); having overdue library books; complaining that his water was off while he had clippers despite knowing that was standard procedure; having an inhaler belonging to another inmate; and having a book belonging to another inmate. Id. at 38. (Turner denies engaging in any of the behavior listed on the review. The accusation that Turner had another inmate's inhaler is discussed in detail in Section D below.) Based on the behavior log entries, the HROP unit team recommended that Turner be demoted to the yellow phase. Kartman and Boughton concurred and Turner was demoted to the yellow phase. Id. at 39. (Turner says that he asked defendant Berger why he had been demoted to the yellow phase and that Berger responded by stating, “I don't know, but you file too many complaints.” Berger denies saying this and states that he was not involved in the HROP team's decision to demote Turner.)

         In September 2016, the HROP unit team recommended that Turner remain on the yellow phase because he had again engaged in “fishing” with another inmate (August 11), was disrespectful when staff members told him that they would no longer pass personal property items (August 25), and because he was ...


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