Whitelaw v. Westra et al
DECISION AND ORDER signed by Chief Judge William C Griesbach on 1/8/2018 Granting 24 Motion for Summary Judgment. (cc: all counsel, via US Mail to Plaintiff) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARQUITOS MAURICE WHITELAW,
Case No. 16-C-1601
CAPTAIN WESTRA, et al.,
DECISION AND ORDER GRANTING SUMMARY JUDGMENT
Plaintiff Marquitos Maurice Whitelaw, an inmate serving a state prison sentence, filed this
action under 42 U.S.C. § 1983, alleging that Defendants Brian Foster and Jeremy Westra violated
his constitutional rights by denying him due process of law during a prison disciplinary proceeding.
Although Whitelaw is currently incarcerated at Wisconsin Secure Program Facility, the events
underlying his complaint occurred while he was housed at Waupun Correctional Institution (WCI).
This matter comes before the court on the defendants’ motion for summary judgment. ECF No. 24.
Whitelaw did not file a response to defendants’ motion within thirty days as required by Civil Local
Rule 56(b)(2), and he has not requested additional time to file a response. This alone is grounds to
grant the motion. Civil L.R. 7(d) (“Failure to file a memorandum in opposition to a motion is
sufficient cause for the Court to grant the motion.”). For this reason and based on the undisputed
facts before the court, it is clear the defendants are entitled to judgment as a matter of law. The
defendants’ motion for summary judgment will therefore be granted.
The events giving rise to the conduct report underlying Whitelaw’s claim occurred on July
30, 2016. Def.’s Proposed Findings of Fact (DPFOF), ECF No. 26 ¶¶ 6–13.1 That morning, Officer
Carly Noe was working with another officer to distribute the morning meal in the Restrictive
Housing Unit, where Whitelaw was housed. DPFOF ¶¶ 6, 8; see also ECF No. 29 ¶ 7. Noe
distributed milk and bananas from a refrigerated cart while the other officer passed meal trays
through each cell’s trap door. DPFOF ¶¶ 7–8; see also ECF No. 29 ¶ 6–7. When the other officer
opened Whitelaw’s trap door to pass in a meal tray, Noe observed Whitelaw through the open trap
as he removed his penis from his pants and began stroking it. DPFOF ¶¶ 10–11; see also ECF
No. 29 ¶ 9. Later in the day, when Noe was delivering trays as part of the lunch meal distribution,
she observed Whitelaw repeating that behavior. DPFOF ¶ 13; see also ECF No. 29 ¶¶ 10–11.
Following these incidents, Noe wrote a conduct report against Whitelaw for violating Wis.
Admin. Code § DOC 303.14(1)(b), which prohibits inmates from “[e]xpos[ing] . . . [their] own
intimate parts to another person for the purpose of sexual arousal or gratification.” DPFOF
¶¶ 14–15; see also ECF No. 28-1 at 1–2. Defendant Westra was assigned as the hearing officer for
the disciplinary hearing resulting from the conduct report. DPFOF ¶ 17; see also ECF No. 27 ¶ 6.
A staff representative was assigned to assist Whitelaw in preparation for and during the disciplinary
hearing. DPFOF ¶¶ 7, 29–30; see also ECF No. 27 ¶¶ 7–8, 15–16. After receiving notice of the
All of the background facts come from the defendants’ proposed findings of fact. Whitelaw
has failed to respond to defendants’ motion for summary judgment in compliance with Civil Local
Rule 56(b)(2). Therefore, all facts within defendants’ proposed findings of fact that are properly
supported will be deemed admitted. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“We have
consistently held that a failure to respond by the non-movant as mandated by the local rules results
in an admission.”).
conduct report and disciplinary hearing, Whitelaw filed a form requesting that Noe and another
officer attend the hearing as witnesses and that he be provided with the security camera video from
his wing of the restrictive housing unit for 6:30 to 7:30 a.m. on the day of the incidents. DPFOF
¶¶ 20–21; see also ECF No. 28-1 at 3. Westra granted the request to require the witnesses to attend
the hearing but denied Whitelaw access to the security camera video on the grounds that it was “not
relevant to why [he] had [his] penis out.” DPFOF ¶¶ 20, 22; see also ECF No. 28-1 at 3. Westra
also informs the court that there is no camera located directly outside the cell where Whitelaw was
located on the day of the incident and that the closest camera shows the entire corridor of nearby
cells but not the inside of any individual cell. DPFOF ¶ 24; see also ECF No. 27 ¶ 11.2
At the disciplinary hearing, Whitelaw made a verbal statement asserting that Noe did not pass
out breakfast trays on the day of the incident, but he said nothing regarding his behavior at the time
of lunch distribution. DPFOF ¶¶ 25–26; see also ECF No. 28-1 at 6. Both officers testified at the
hearing. When Whitelaw asked Noe whether she remembered passing out breakfast trays, she
reiterated that she was passing out milk and bananas that morning. DPFOF ¶¶ 27–29; see also ECF
No. 28-1 at 6–8. Finding the conduct report credible and noting that Whitelaw had been found
guilty of similar conduct seven times in the preceding twelve months, Westra determined that it was
more likely than not that Whitelaw engaged in the sexual conducted alleged in the report and
therefore found him guilty. DPFOF ¶¶ 31–32; see also ECF No. 28-1 at 6. Westra ordered 120
days of disciplinary separation as a penalty. DPFOF ¶ 34; see also ECF No. 28-1 at 6.
Due to the large size of video files, security footage from the cell halls is not normally
retained and is instead constantly overwritten with new recordings. Although WCI has the ability
to preserve a portion of a recording before it is overwritten, the recording Whitelaw requested was
not retained in this case because the video footage was not accepted into evidence as part of the
conduct report proceedings. DPFOF ¶¶ 41–42; see also ECF No. 30 ¶ 13.
Whitelaw appealed to Defendant Foster to review the disposition of the conduct report in
his capacity as warden. DPFOF ¶ 38; see also ECF No. 28-1 at 9. Whitelaw argued that Westra’s
denial of access to the video denied him due process of law and prevented him from receiving a fair
hearing. DPFOF ¶ 38; see also ECF No. 28-1 at 9. To conduct the appeal, Foster reviewed the
entire conduct report record, which included Whitelaw’s statement and the witness testimony at the
hearing. DPFOF ¶ 39; see also ECF No. 30 ¶ 10. Although Foster does not recall whether he
actually reviewed the video footage that Whitelaw requested, his normal practice is to review video
footage when it is raised as an issue on appeal, so he believes he did do so in this case. DPFOF ¶ 40;
see also ECF No. 30 ¶ 11. Foster determined that the finding of guilt and the disposition of the case
were appropriate, so he affirmed Westra’s decision. DPFOF ¶ 43; see also ECF No. 30 ¶ 12.
Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Whitelaw alleges that Westra and Foster denied him due process of law by finding him guilty
and imposing 120 days of disciplinary separation despite denying him access to the security video
at his disciplinary hearing. “A prisoner challenging the process he was afforded in a prison
disciplinary proceeding must meet two requirements: (1) he has a liberty or property interest that the
state has interfered with; and (2) the procedures he was afforded upon that deprivation were
constitutionally deficient.” Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007) (citing Rowe v.
DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994), which cited Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989)). The court concludes that summary judgment in favor of the defendants is
appropriate as a matter of law because Whitelaw did not possess a liberty interest in avoiding 120
days of disciplinary separation and he received constitutionally sufficient procedural protections.
A. Liberty Interest
As the Seventh Circuit has observed, the Supreme Court’s decisions in Sandin v. Conner,
515 U.S. 472 (1995), and Wilkinson v. Austin, 545 U.S. 209 (2005), “establish that disciplinary
segregation can trigger due process protections depending on the duration and conditions of
segregation.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009). In Sandin, the
Court explained that an inmate has a liberty interest only in “freedom from restraint [that] . . .
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” 515 U.S. at 484. Applying that standard in Wilkinson, the Court determined that conditions
at a “Supermax” prison gave rise to a liberty interest because not only was “almost all human contact
. . . prohibited” but placement was also indefinite and reviewed just once per year. 545 U.S. at
223–24. “Although relatively short terms of segregation rarely give rise to a prisoner’s liberty
interest, at least in the absence of exceptionally harsh conditions, such an interest may arise from a
long term of confinement combined with atypical and significant hardships.” Hardaway v.
Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (citing Marion, 559 F.3d at 697–98). Even a
disciplinary segregation term of six months does not of necessity give rise to a protected liberty
interest in the absence of “conditions of confinement [that] are unusually harsh.” Marion, 559 F.3d
at 697–98 (citing Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)).
Instructive in Whitelaw’s case is the Seventh Circuit’s decision in Hardaway concluding that
an inmate fell short of demonstrating a deprivation of rights constituting an “atypical and significant
hardship.” 734 F.3d at 744. As relevant conditions of his 182-day disciplinary segregation, the
inmate cited “his placement with a confrontational cell mate, the psychological issues he experienced
in connection to his aversion to closed solid metal doors, and his weekly access to the shower and
prison yard.” Id. Although the Seventh Circuit acknowledged that “these conditions are more
severe than those found in the general prison population,” it went on to conclude that “they are
hardly analogous to a confinement that deprives a prisoner of all human contact or sensory stimuli.”
Id. Consequently, the disciplinary segregation did not implicate a protected liberty interest.
If the conditions of the 182-day segregation in Hardaway did not give rise to a protected
liberty interest, then it is easy to conclude that Whitelaw’s 120 day disciplinary separation did not,
either. At the outset, if six months are not sufficient to implicate a liberty interest in the absence of
unusually harsh conditions, see Marion, 559 F.3d at 698, then neither should Whitelaw’s fourthmonth disciplinary disposition.
Even considering the condition’s of Whitelaw’s disciplinary
separation, they are notably less harsh than the conditions the Seventh Circuit reviewed in
Hardaway. While in disciplinary separation, Whitelaw had access to the shower twice as often as
the inmate in Hardway, and he had access to recreation up to four times as often. DPFOF ¶¶ 52–54;
see also ECF No. 30-1 at 7–8, 12–13, 24. Moreover, there is no indication that the inmate in
Hardaway had access to visits, phone calls, and legal recreation, which were all available to
Whitelaw at WCI. DPFOF ¶¶ 50–51; see also ECF No. 30-1 at 18–19. The presence of these
additional opportunities for human conduct further indicate the reasonableness of Whitelaw’s
conditions, and the court therefore concludes that he did not have a protected liberty interest in
avoiding 120 days of disciplinary separation.
B. Due Process
Even assuming that Whitelaw was entitled to the high level of due process protections
guaranteed when an increase in the length of an inmate’s confinement is at stake, WCI’s disciplinary
procedures provided him with adequate due process. See Wolff v. McDonnell, 418 U.S. 539, 558
(1974) (holding that procedural due process protections apply to prison disciplinary proceedings that
implicate an inmate’s access to good-time credits that affect the length of the prison term). “In the
prison disciplinary context, due process requires only that the prisoner receive advance written notice
of the charges, an opportunity to present testimony and documentary evidence to an impartial
decision-maker, and a written explanation for the discipline that is supported by ‘some evidence’ in
the record.” Piggie v. Cotton, 344 F.3d 674, 679 (7th Cir. 2003) (citations omitted) (citing Wolff,
418 U.S. at 564; Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454–44 (1985); Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000)).
Whitelaw received all of those procedural protections as part of WCI’s disciplinary process.
After Noe filed the conduct report, Whitelaw received written notice of the upcoming disciplinary
hearing as well as a copy of the underlying conduct report. DPFOF ¶¶ 16, 18. Before the hearing,
he had the opportunity to request the attendance of witnesses and the use of documentary evidence.
Id. ¶ 20. At the hearing itself, Whitelaw had the opportunity to testify, and both of his requested
witnesses were required to attend and give evidence. Id. ¶¶ 20, 25, 27–28. After the hearing,
Whitelaw received a written copy of Westra’s decision, which included a summary of all testimony
given at the hearing as well as the reasons for the decision. Id. ¶ 36; see also ECF No. 28-1 at 6–8.
Whitelaw likewise received a written explanation for Foster’s denial of his appeal. ECF No. 28-1
at 9. Collectively, this written notice of the hearing, access to witnesses, opportunity to be heard,
and written explanation for the disciplinary disposition provided Whitelaw with the procedural due
process required by the Seventh Circuit and the Supreme Court when a prisoner’s greatest liberty
interests are at stake.
Westra’s decision not to permit Whitelaw access to the requested security video for the
disciplinary hearing, and Foster’s affirmance of Westra’s decision, does not diminish the due process
protections that Whitelaw received. In fact, as noted above, the video was no longer necessarily in
existence by the time of the hearing. Even if it had existed, failure to provide it would not have
violated due process. As part of the process due in prison disciplinary proceedings, the Seventh
Circuit has held that “an inmate is entitled to disclosure of material, exculpatory evidence in prison
disciplinary hearings unless such disclosure would unduly threaten institutional concerns.” Piggie,
344 F.3d at 678 (citing Chavis v. Rowe, 643 F.2d 1281, 1285–86 (7th Cir. 1981)). Here, however,
the requested surveillance video would not have exculpated Whitelaw from the charges alleged.
Because the surveillance camera could not see the interior of Whitelaw’s cell, the security footage
could not definitively prove that he did not engage in the alleged sexual conduct during the breakfast
distribution. DPFOF ¶ 24. Whitelaw sought the morning surveillance video to advance his theory
that Noe fabricated her conduct report and did not pass out breakfast that morning. See ECF
No. 28-1 at 9. But there is no dispute that Noe worked in the segregation unit that morning, and
although she did not pass out breakfast trays, she did participate in the breakfast distribution by
handing out milk and fruit. DPFOF ¶¶ 8–10. Regardless of Noe’s precise duties that morning, she
was indisputably on the unit throughout that morning and in a position to see Whitelaw exposing
himself. Furthermore, Whitelaw sought surveillance video only for the morning of his alleged
conduct, and the requested video therefore would have had no impact on the discipline imposed for
his conduct that afternoon. Because the surveillance video would not have exonerated Whitelaw of
the alleged conduct and he received discipline pursuant to procedures consistent with the protections
afforded to the highest liberty interests available to an inmate, his due process claim fails as a matter
For the reasons set forth above, the defendants’ motion for summary judgment will be
GRANTED. Although the defendants raise the defense of qualified immunity in their brief in
support of their motion for summary judgment, the court need not reach that issue because summary
judgment is appropriate based on Civil Local Rule 7(d) and as a matter of law with regard to
Whitelaw’s due process claim.
Dated this 8th day of January, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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