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Nigl v. Litscher

United States District Court, W.D. Wisconsin

December 19, 2019

PAUL NIGL, Plaintiff,
v.
JON LITSCHER, MICHAEL MEISNER, STEVEN SCHUELER, ANDREW WESNER, DAISY CHASE and RANDALL HEPP, Defendants.

          OPINION AND ORDER

          Barbara B. Crabb District Judge.

         Pro se 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.

         From the affidavits, disciplinary records and inmate grievance materials that the parties submitted, I determine that the following facts are undisputed.

         UNDISPUTED FACTS

         Plaintiff 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.

         A. Conduct Report No. 2733013

         On 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 2015.)

         According 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.

         Also on 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.

         B. Conduct Report No. 2733030

         On 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.

         On 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 ...


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