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Gross v. Boughton

United States District Court, W.D. Wisconsin

December 11, 2019

JOHN V. GROSS, JR., Plaintiff,



         Pro se plaintiff John V. Gross, Jr., has been granted leave to proceed under 42 U.S.C. § 1983 on claims against prison staff at the Wisconsin Secure Program Facility (“WSPF”), which arise out of limitations placed on his recreation periods following a 2016 assault, as well as responses to his complaints about how the lack of recreation affected his mental health. In particular, the court granted Gross leave to proceed on: (1) Eighth Amendment claims that defendants responded with deliberate indifference to his need for more recreation time and mental health treatment; and (2) a Fourteenth Amendment due process claim that special recreation limitations imposed by defendants, when considered along with uniquely restrictive characteristics of WSPF itself, amounted to a loss of a liberty interest without due process.

         Now before the court is defendants' motion for summary judgment. (Dkt. #27.) Since the evidence of record would not permit a reasonable trier of fact to find for Gross on the merits of his constitutional claims, and qualified immunity shields defendants from monetary damages in any event, the court will grant defendants' motion.


         A. Parties

         While plaintiff John Gross currently is incarcerated at Green Bay Correctional Institution (“GBCI”), at all times relevant to his claims, plaintiff John Gross was a prisoner at WSPF, where all defendants worked. Defendants are: WSPF Warden Gary Boughton; Dan Winkleski; Security Director Mark Kartman; Brian Kool; Michael Snodgrass; Ellen Ray; William Brown; and Victoria Sebranek.

         B. Gross's Housing and Access to Leisure Activities Over Time

         WSPF has four housing units for its general population prisoners: Charlie Unit, Delta Unit, Echo Unit and Foxtrot Unit. Gross was an inmate in the Charlie Unit from December 2015 to April 2017, at which point he was transferred to the Echo Unit. Gross remained in the Echo Unit until he was transferred to GBCI in May 2019.

         Gross's cell in the Charlie Unit was approximately 12.5 by 6.5 feet. That cell had a skylight, although Gross maintains he could not see through it. Gross did not have a cellmate.

         The Wisconsin Administrative Code requires prisons to provide prisoners access to at least four hours of “leisure time activity” per week, which encompasses time for sports and other recreational activities such a reading, crafts or watching television. Wis. Admin. Code § DOC 309.36. Prisoners assigned to Charlie Unit have access to several spaces for scheduled, out-of-cell time, including: a large outdoor courtyard with several basketball courts and numerous tables; a 33' x 15' indoor recreation room for activities such as basketball or handball; a 33' x 15' indoor weight room; and 18' x 15' indoor dayrooms with two tables, a telephone and a television. While Gross does not explicitly dispute these layouts, he adds that access to these spaces is determined by a preset schedule, and only during periods of warm, clear weather. He also maintains that there is only one basketball court; the indoor recreation room is concrete and has an “immobile” basketball hoop; only four people are allowed in the indoor recreation room at a time; it is difficult to play handball because of the fixed basketball hoop; the indoor weight room houses a universal weight machine that takes up 10 square feet of the room; the two dayrooms have only one phone each; and only one dayroom has a television.

         Leisure time activity in Charlie Unit and Delta Unit is also scheduled differently than leisure activity in the Echo and Foxtrot Units by virtue of their different physical layouts. Specifically, the Charlie and Delta Units have access to a large outdoor courtyard, but Echo and Foxtrot each have access to separate, smaller outdoor courtyards. As a result, Charlie Unit prisoners received about 4 hours and 10 minutes of recreation time per week, and 6 hours and 15 minutes of dayroom time per week, and Echo and Foxtrot Unit prisoners receive a total of 11 hours of time per week when they can use the recreation or dayroom areas.

         Up until June of 2016, the Charlie and Delta Unit leisure time was scheduled the same way as the Echo Unit, with Charlie and Delta Unit prisoners allowed to choose between accessing the courtyard or dayroom. That said, when the weather was bad, Charlie and Delta Unit prisoners were allowed to go to the dayroom, or if less than five inmates were interested in using the courtyard, it would not be opened, leaving prisoners with the choice of using the inside recreation room or the dayroom. Further, on weekends and holidays, prisoners could only access the dayrooms.

         Charlie Unit prisoners were also allowed to be outside their cells at other times beyond leisure and recreation periods, including for visitations, meals, law library time, jobs, programming and laundry exchange. Gross adds that these opportunities for out-of-cell time were limited, however, in that laundry exchange only takes about five minutes per week, jobs were difficult to obtain, programming is only available to eligible prisoners, and visitations are only available to prisoners with visitors. Furthermore, Gross points out (and defendants do not dispute) that his outdoor recreation time was cancelled intermittently due to staff training and inclement weather, while defendants point out that prisoners could perform in-cell exercise during these periods as an alternative.

         In March 2016, WSPF changed the recreation schedule to provide more out-of-cell time to prisoners. Rather than allowing only two ranges to use the large outdoor courtyard at a time, 2 ½ ranges were allowed to access that space. This change increased recreation time for prisoners by 45 minutes per week.

         Things changed again in May of 2016, however, when there were multiple, prisoner-on-prisoner assaults in the Echo Unit, barbershop and kitchen areas. Between May 18 and June 14, 2016, therefore, WSPF operated in a “slowdown mode, ” in which regular administrative rules were suspended. During this slowdown, prisoner movement was much more restricted. For example, prisoners received meals in their cells, were not allowed to use dayrooms or recreation areas, and contact visits were suspended, although certain movements were gradually phased back into the schedule.[2]

         While the slowdown ended by June 14, 2016, the more limited out-of-cell recreation schedule that was in place before March 2016 also went back into effect within a month. Specifically, on July 1, 2016, Deputy Warden Winkleski issued a memorandum explaining that the schedule was officially changing back as of July 11, and instructing prisoners to contact their unit managers with questions. Boughton avers that they switched back to the old schedule out of concerns about the number of prisoners being allowed to congregate in common areas during leisure time activities.

         Under this schedule, the parties disagree whether Charlie Unit prisoners were still allowed at least four hours of recreation time per week and at least six hours of dayroom time each week. Gross asserts that only the Charlie and Delta Units had a new recreation schedule, and it was actually more restrictive than the previous schedule. Specifically, Gross claims that the new recreation schedule allotted just 50 minutes for courtyard time and one hour for dayroom time during leisure periods, without the ability to choose between the courtyard and dayroom. Gross further claims that the first and second Tuesday of every month were training days, so recreation periods were regularly cancelled on those days. This, he claims, reduced the time that Charlie Unit prisoners had for exercise from 4 hours and 10 minutes per week to 3 hours and 30 minutes per week.

         Dissatisfied with the change after the slowdown ended, Gross wrote to Unit Manager Kool, asking for a reason for the new schedule and a definition of the new release times. After Kool failed to respond to that letter, Gross next wrote to Security Director Kartman, who on July 18, 2016, simply referred Gross back to Winkleski's explanation for the change as set forth in his July 1 memorandum. Still trying for an answer, Gross wrote directly to Warden Boughton, who received his letter on July 31. Unfortunately, Gross raised multiple unrelated concerns in that letter, including his recent surgery, attempts to find a job, the slowdown, recreation time, visitation time, phone time, and his desire for a prison transfer. On August 3, 2016, Boughton responded by memorandum, touching on Gross's various concerns. As to Gross's complaint about recreation time in particular, Broughton explained that WSPF “provides more out of cell time than mandated by code.” (Ex. 1006 (dkt. #30-6) 4.)

         In August, Gross learned that prisoners in the Echo Unit did not have a new recreation schedule. Two prisoners placed in the Echo Unit, Eric Hainstock and Todd Frost, provided Gross with affidavits confirming that they were not subjected to similar recreation and leisure restrictions as prisoners in the Charlie Unit. This prompted Gross to write to Kool, Kartman and Boughton again, complaining that his equal rights were being violated.

         C. Gross's Inmate Complaints

         Gross also filed several, formal inmate complaints about the recreation schedule following the slowdown. Generally, Gross complained that the recreation periods were inadequate, that access to outdoor recreation was taken away without an alternative, and that his recreation period was shortened inappropriately, as well as referenced his due process and equal protection rights entitling him to relief. (Ex. 1007 (dkt. #31-2 through #31-9.) In her capacity as an Inmate Complaint Examiner (“ICE”) of WSPF, defendant Ray rejected these complaints, explaining, as had Boughton, that WSPF provided more out of cell time than required by the administrative code. On review, both Brown and Boughton agreed with Ray's assessment. Nevertheless, Gross maintains that defendants Ray, Brown and Boughton all rejected his complaints without an actual investigation.

         D. Health Care Requests

         In addition, Gross separately submitted several Psychological Service Requests (“PSR's”) complaining about his limited recreation time. On September 5 and 17, 2016, Gross submitted PSR's reporting that his mood was in decline since the slowdown and checking the box on the PSR form affirming that he wanted to see PSU staff. More specifically, in his September 5 PSR, Gross wrote:

Since the recreation times for Charlie Unit have been reduced from 2 hours to 50 mins I have experienced a[n] obvious, significant decline in my moods, behaviors. I feel better when I'm able to go out & exercise [illegible], here where I'm trapped in this cell 22-23 hours a day. Further I feel that the opaque windows viewed through the clear window in cell also contribute to this decline as well as contribute to the feelings of sluggish, hazy, unable to function mentally/physically. PSU needs to do something to [illegible] these issues asap.

(Pl. Ex. 16 (dkt. #40-13).) Psychological Associate Sebranek, who worked at WSPF between March 2, 2015, and December 29, 2016, responded to the September 5 PSR as follows:

I consulted with security staff it is my understanding that your time is made up by allowing more frequent access to rec/phones/dayroom. I will have to redirect you to security in regard to how rec time is distributed. If you need some coping skills or enhanced ...

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