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Christopher v. Schwochert

United States District Court, W.D. Wisconsin

August 23, 2019

ADAM CHRISTOPHER, Plaintiff,
v.
JIM SCHWOCHERT, LIZZIE TEGELS, PATRICK SMETANA AND C.O. KNUDSON, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, DISTRICT JUDGE

         Pro se plaintiff Adam Christopher, a prisoner at the Jackson Correctional Institution, is proceeding on claims that he has been denied access to books he needs for correspondence college courses, in violation of his rights under the First Amendment. Now before the court is plaintiff's motion for a preliminary injunction, dkt. #12, in which plaintiff requests that the court order defendants to permit him access to the books he needs for his college courses. Dkt. #12. Defendants have responded, contending that plaintiff is not entitled to immediate relief because his books were withheld pursuant to valid policies and that the balance of harms disfavors an injunction. For the reasons explained below, I conclude that plaintiff is entitled to preliminary injunctive relief as to his request that Hard Times be released to him. I will deny his request for relief in all other respects.

         Also before the court is plaintiff's motion for reconsideration of the screening order. Dkt. #25. He asks the court to reconsider the dismissal his First Amendment claims against Division of Adult Institutions Security Chief, Division of Adult Institutions Property Committee and Jodi Dougherty, and his due process claims against defendant Warden Tegels and others. I will deny that motion because plaintiff's allegations are not sufficient to state a due process violation or any claims against the dismissed defendants.

         From the evidence submitted by the parties in connection with their briefing on the motion for preliminary injunction, I find the following facts to be undisputed unless otherwise noted.

         UNDISPUTED FACTS

         Plaintiff Adam Christopher is incarcerated at the Jackson Correctional Institution, where Lizzie Tegels is the warden, Patrick Smetana is the property sergeant and Knudson is a correctional officer. Plaintiff is also suing Jim Schwochert, the administrator of the Wisconsin Department of Corrections Division of Adult Institutions.

         Plaintiff is enrolled in a four-year college correspondence program and has maintained a 4.0 grade point average. All of plaintiff's courses and course materials have been approved by Jackson Correctional's education director Randy Scott. On August 1, 2018, plaintiff enrolled in English 203: Major Themes in Literature. The “Norton Critical Edition” of Hard Times, by Charles Dickens, is required for the English course. Scott completed a form approving the course and course materials and forwarded it to the prison's property department.

         On or about August 16, plaintiff's mother ordered Hard Times from Amazon's website. Amazon was the only website she could find that sold the edition of the book that plaintiff needed. Although plaintiff's mother ordered the book on the Amazon website, the book was actually shipped from a third-party seller, called “Bearbooks.” Amazon did not provide a “gift receipt” option for the transaction. Plaintiff's mother forwarded a copy of the electronic receipt from Amazon to defendant Smetana, the property sergeant, explaining that she did not know whether Amazon would include a receipt or packing slip with the books. Smetana responded to plaintiff's mother that the electronic receipt was insufficient and that if the books did not come with a receipt, they would not be allowed. Dkt. #13-1. When the book arrived without a receipt or packing slip, plaintiff was told that he could not have the book and that he would either have to send it back or destroy it.

         Defendant Smetana was relying on prison rules that restrict the types of publications that inmates can receive through the mail. In particular, Wis. Admin. Code DOC § 309.05(2)(b) states that “[i]nmates may only receive publications directly from the publisher or other recognized commercial sources in their packages.” The regulations do not define “recognized commercial sources” and there is no list of authorized vendors or criteria for authorization available to inmates. Under Division of Adult Institutions policy § 309.04.01(V)(K)(4), “[p]ublications shall arrive with . . . [a] receipt which lists each item and its value; or . . . [a] packing slip which lists each item.” If there is no receipt or value listed on the packing slip, staff is to confirm the purchase price from the vendor. DAI Policy 309.20.03(I)(e)(5)(c).

         Plaintiff wrote to several prison officials, including defendant Warden Tegels, about being denied the book and asking for information about how he could order the book he needed. Between August and September 2018, plaintiff was denied additional books that he needed for his courses because the books arrived without receipts. Tegels responded to plaintiff that his books were properly denied under prison policy and that he should attempt to sort the issue out through the “chain of command” or by filing an inmate complaint. Plaintiff filed inmate complaints about the books, but the complaints were denied. Plaintiff has continued to write to numerous Department of Corrections officials for information about how to order the books he needs for his classes and has not received any explanation. Plaintiff wrote to Amazon, which responded that it did not routinely include receipts or packing slips with all packages.

         In January 2019, plaintiff signed up for a new course: History 459: Southeast Asian Culture and Politics. Scott, the education director, completed a form notifying the property department that plaintiff should be allowed to receive the used book without a receipt. There are no policies that prohibit prisoners from ordering or receiving used books. However, when plaintiff's book arrived, defendant Smetana refused to release the textbook because it was used and had no receipt. Plaintiff eventually received this book, but the prison is still holding Hard Times in the property department.

         The books plaintiff has ordered for his class are not large or hardcover books. Rather, they have been small paperbacks. In addition, plaintiff orders books for a course only after Scott approves the course and materials and plaintiff has paid for the course. His courses cost $600. All books shipped to the prison are inspected for contraband and suspicious signs of tampering. In some instances, the prison has delivered books to plaintiff when the book arrived with a hand-written receipt.

         OPINION

         A. Motion for ...


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