United States District Court, W.D. Wisconsin
OPINION AND ORDER
Barbara B. Crabb District Judge.
plaintiff Paul Nigl, who is incarcerated at the Fox Lake
Correctional Institution, is proceeding on claims that
defendants violated his rights under the First Amendment by
issuing or approving two conduct reports against him in
retaliation for his seeking to exercise his right to intimate
association with a psychologist employed by the Department of
Corrections. Before the court is defendants’ motion for
summary judgment, in which they contend that plaintiff failed
to exhaust his administrative remedies. Dkt. #26. Also before
the court is plaintiff’s motion to amend his complaint
to substitute Deidre Morgan, the former Deputy Secretary of
the Department of Corrections, for defendant Jon Litscher,
the former Secretary of the Department of Corrections,
because it was Morgan and not Litscher who approved the
conduct reports against him. Dkt. #34. For the reasons below,
I am granting the motion for summary judgment and dismissing
this case. Plaintiff’s motion to amend his complaint
will be denied as moot.
the affidavits, disciplinary records and inmate grievance
materials that the parties submitted, I determine that the
following facts are undisputed.
Paul Nigl is currently incarcerated at the Fox Lake
Correctional Institution. He previously was incarcerated at
the Redgranite Correctional Institution from September 30,
2015 to June 27, 2018. During his incarceration at
Redgranite, plaintiff received the two conduct reports that
are the subject of this lawsuit.
Conduct Report No. 2733013
November 30, 2015, defendant Daisy Chase, a corrections unit
supervisor, filed conduct report no. 2733013 against
plaintiff, asserting that he had solicited her in violation
of Wis. Admin. Code § 303.30, by asking her for special
consideration in approving him for visitation with a former
correctional employee, Dr. Sandra Johnston. Dkt. #28-2 at
1-2. (Johnston had provided psychological services to
plaintiff at the Waupun Correctional Institution from October
2014 to January 2015, when she stopped working at the prison.
She was rehired by the Department of Corrections in July
to plaintiff, on or about December 1, 2015, Correctional
Officer Corey Heft (not a defendant) delivered a copy of
conduct report 2733013 to plaintiff and explained the newly
implemented rules relating to discipline and the grievance
process. Heft told plaintiff that he could not appeal an
uncontested major disposition to which he had agreed and that
he could not use the inmate complaint review system to raise
any issue related to a conduct report, except to challenge
the procedure used in the disciplinary process. After
speaking with Heft, plaintiff signed a form dated December 1,
2015, waiving his right to a contested major disciplinary
hearing and admitting his guilt. Dkt. #28-2 at 3. He received
a 30-day disciplinary separation.
December 1, 2015, plaintiff wrote to the warden, defendant
Michael Meisner, to ask for a “warden-initiated review
pursuant to DOC 303.89 and DOC 303.73(13)” (review of
disciplinary separation) with respect to the conduct report.
Plaintiff challenged the merits of the conduct report,
contending that he did not solicit defendant Chase and
“merely requested Ms. Chase to perform her 2nd level
duty” regarding visitor approval. Dkt. #29-2 at 1.
Plaintiff did not assert that Chase issued the conduct report
as a retaliatory act. On December 3, 2015, Meisner responded
that although a warden has the discretion to initiate a
review of the decision and disposition of a conduct report,
one is not required in response to an inmate-initiated
request. Id. at 2.
Conduct Report No. 2733030
December 18, 2015, defendant Andrew Wesner, a correctional
captain, filed conduct report no. 2733030 against plaintiff,
asserting that plaintiff violated Wis. Admin. Code §
303.19 (stalking) and § 303.30 (soliciting an employee)
by locating Johnston’s address without her knowledge in
January 2015 and then writing and calling her on a regular
basis throughout 2015. Dkt. #28-1 at 1-2. On December 21,
2015, plaintiff waived his right to a contested major
disciplinary hearing and admitted his guilt. Id. at
3. He received a 60-day disciplinary separation.
December 21, 2015, plaintiff submitted an inmate complaint
RCGI-2015-24024 with respect to the conduct report,
contending that his due process rights were violated because
Wesner both wrote the report and summarily disposed of it. As
relief, plaintiff asked that the conduct report be reissued
by an impartial party and reheard. Dkt. #28-4 at 8.
(Plaintiff submitted a duplicative inmate complaint on
December 28, 2015.) While the inmate complaint review process
was ongoing, plaintiff also wrote to Warden Meisner on
December 21, 2015, stating that:
Today I signed conduct report # 2733030. Capt. Wesner was
both the conduct report writer and the one who found me
guilty summarily. I believe that constitutes a violation of
my due process rights. I would ask that the conduct report be
re-issued to me.
Dkt. #29-3. Plaintiff wrote Meisner again about
Wesner’s role on December 22. Dkt. #29-4. On December
23, 2015, Meisner responded that he had not yet received the
inmate complaint examiner’s recommendation ...