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Sundermeyer v. Kutina

United States District Court, W.D. Wisconsin

August 30, 2019

JOSEPH A. SUNDERMEYER, Plaintiff,
v.
KELLY KUTINA, KIEL K. BURNSTAD, CUNNINGHAM, ALLEN E. REYNOLDS, J. BILLS, R. SHALLOCK, LINDA FAIT, CHRISTOPHER BAKER, KARL I. HENRICHSEN, LARRY W. FUCHS, TIMOTHY J. THOMAS, SHANNON WILSON, EMILIE WENTWORTH-KASTEN, MICHAEL J. KASTEN, KYLE E. ESLINGER, JASON ACHTERBERG, HEIDI MELLENBERGER, KIMBERLY BETZHOLD and KEVIN WEINSHORTT, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, DISTRICT JUDGE

         Pro se plaintiff and prisoner Joseph Sundermeyer has filed a civil action under 42 U.S.C. § 1983, contending that various correctional officials and prison staff at the New Lisbon and Stanley Correctional Institutions violated his rights under the First and Eighth Amendments and due process clause by sexually harassing him and then by retaliating against him when he tried to report the harassment. His complaint is before the court for screening under 28 U.S.C. § 1915A, to determine whether it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. Plaintiff also has filed a motion for court assistance in recruiting counsel. Dkt. #3.

         For the reasons below, I am dismissing plaintiff's complaint because I conclude that plaintiff's allegations are insufficient to state a constitutional claim upon which relief may be granted against any of the defendants. Plaintiff's motion for court assistance in recruiting counsel will be denied as moot.

         Plaintiff alleges the following facts in his complaint.

         ALLEGATIONS OF FACT

         A. The Parties

         Plaintiff Joseph Sundermeyer is currently incarcerated at the Stanley Correctional Institution, and from August 2014 to April 25, 2017, he was incarcerated at the New Lisbon Correctional Institution. Defendant Jason Achterberg is the security director at the Stanley Correctional Institution, and defendants Shannon Wilson, Emilie Wentworth, Michael Kasten and Kyle Eslinger are correctional officers there. Defendants Heidi Mellenberger and Kimberly Betzhold are employed in the Office of Special Operations at the central office for the Department of Corrections in Madison, Wisconsin. Defendant Kevin Weinshortt is a City of New Lisbon police officer. The remaining defendants are employed at the New Lisbon Correctional Institution: Timothy Thomas is the deputy warden; Larry Fuchs is the security director; Linda Fait is an offender classification specialist; R. Shallock is an educational guidance counselor; J. Bills is a social worker; and Kelly Kutina (sergeant), Kiel Burnstad, Cunningham, Allen Reynolds, Christopher Baker (captain), Karl Henrichsen (administrator captain) are correctional officers.

         B. Events at New Lisbon Correctional Institution

         At around 9:45 a.m. on March 25, 2017 at the New Lisbon Correctional Institution, plaintiff observed defendants Burnstad and Cunningham laugh as defendant Kutina removed a spoon from an ice cream cup and placed it “in a sexual manner” in his mouth” while Kutina brought the ice cream cup to his genital area and moved it back and forth. Kutina was looking at plaintiff while he made these motions. Plaintiff understood the gestures to mean that Kutina was suggesting that plaintiff “perform fellatio.” On March 29, 2017, defendant Reynolds refused to take plaintiff's statement reporting sexual harassment and retaliation under the Prison Rape Elimination Act (PREA). According to plaintiff, the above acts were taken in retaliation for his previous complaints of sexual harassment against prison staff. Unidentified staff members at the prison had opened and read a March 8, 2017 letter addressed to plaintiff from the Wisconsin Coalition Against Sexual Assault.

         On April 2, 2017, plaintiff filed a PREA complaint against Kutina, Cunningham, Burnstad and Reynolds, alleging sexual harassment and retaliation and asking defendants Mellenberger and Betzhold and local law enforcement to investigate. On April 6, 2017, defendants Fuchs, Bills and Thomas refused to allow plaintiff to call local law enforcement to report the March 25 incident, and Fuchs and Thomas told plaintiff that only Mellenberger and Betzhold would be investigating the allegations. On the same day, Mellenberger and Betzhold interviewed plaintiff, who repeatedly asked for the footage from the security cameras in the area of the March 25 incident. Mellenberger and Betzhold refused to obtain the footage and did not allow plaintiff to call the United States Attorney's Office or the Federal Bureau of Investigation. Plaintiff filed a PREA complaint against Thomas on April 7, 2017 regarding his refusal to allow a police investigation.

         On April 18, 2017, defendant Bills told plaintiff that defendants Fuchs and Achterberg agreed to transfer plaintiff to the Stanley Correctional Institution because he had filed PREA complaints on March 25 and April 7, 2017. Plaintiff told Bills that he feared that Achterberg would retaliate against him at Stanley because Achterberg used to be a captain at New Lisbon in 2014 and was friends with the staff against whom plaintiff had filed PREA complaints. On April 19, 2017, plaintiff repeated his concerns to the program review committee-which included defendants Fait, Shallock and Baker-and told them that he was being transferred in retaliation for filing PREA complaints. The committee approved the transfer, told plaintiff that he could file a form requesting that he remain separate from Achterberg and refused plaintiff's request to call local law enforcement agencies, informing him that they had no authority over “PREA matters.” On April 21, 2017, Fuchs (who is Achterberg's supervisor) denied plaintiff's request to remain separate from Achterberg. Also on April 21, defendant Weinshortt (a City of New Lisbon police officer) interviewed plaintiff about the March 25, 2017 incident. Defendant Henrichsen was present during the interview and made plaintiff feel intimidated. Weinshortt refused to obtain the video footage of the alleged incident and did not take plaintiff's statement or file a police report, explaining that it was a civil and not criminal matter.

         C. Events at Stanley Correctional Institution

         Plaintiff was transferred to the Stanley Correctional Institution sometime between April 25 and 27, 2017 and placed in general population. Plaintiff contacted the PREA hotline on April 28, reporting his retaliatory transfer and Weinshortt's refusal to investigate the alleged March 25, 2017 sexual harassment. On April 30, he filed a PREA complaint against Henrichsen and Weinshortt regarding their unwillingness to pursue an investigation.

         On May 1, 2017, Henrichsen issued plaintiff conduct report no. 2987401 for lying about staff regarding the alleged incident on March 25. He wrote that the video footage did not show an ice cream cup or him placing anything near his genitals. On May 2, 2017, defendant Eslinger, the PREA compliance manager at Stanley, told plaintiff that the PREA hotline is to be used for reports of sexual abuse and harassment and not for the types of complaints that plaintiff was making. Eslinger informed plaintiff that if he continued to make similar complaints, he would be issued a conduct report for the misuse of state or federal property. Plaintiff pleaded not guilty to conduct report no. 2987401 and filed another PREA complaint on May 7, 2017, alleging that the conduct report was issued in retaliation because he had filed PREA complaints. He requested the video footage of the March 25 incident and submitted 27 questions for Henrichsen to answer. ...


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