Jacobs v. Dane County Clerk of Court et al

Filing 139

ORDER signed by Judge Rudolph T Randa on 09/30/2010 granting 108 Motion for Summary Judgment. (cc: all counsel; Via US Mail to Chris J Jacobs, III) (Koll, J)

J a c o b s v. Dane County Clerk of Court et al

D o c . 139

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

C H R I S J. JACOBS, III, P l a i n t i f f,

-v sR I C H A R D RAEMISCH and PETER HUIBREGTSE, D efend an ts.

C a s e No.

07-C-0306

DECISION AND ORDER

T h is matter is now before the court on the defendants' motion for summary ju d g m e n t. I . SUMMARY JUDGMENT STANDARD S u m m a ry judgment "should be rendered if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. C a tre tt, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1 9 9 1 ). "Material facts" are those facts that, under the applicable substantive law, "might a f fe c t the outcome of the suit." See Anderson, 477 U.S. at 248. A dispute over "material

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f a cts " is "genuine" if "the evidence is such that a reasonable jury could return a verdict for th e nonmoving party." Id. T h e burden of showing the needlessness of trial ­ (1) the absence of a genuine is s u e of material fact, and (2) an entitlement to judgment as a matter of law ­ is upon the m o v a n t. However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable ju ry verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 ("proper" su m m a ry judgment motion may be "opposed by any of the kinds of evidentiary materials l is t e d in Rule 56(c), except the mere pleadings themselves . . ."); Fed. R. Civ. P. 56(e) (" W h e n a motion for summary judgment is properly made and supported, an opposing party m a y not rely merely on allegations or denials in its own pleading; rather, its response must ­ by affidavits or as otherwise provided in this rule ­ set out specific facts showing a genuine is s u e for trial. "). "Rule 56(c) mandates the entry of summary judgment, . . . upon motion, a g a i n s t a party who fails to establish the existence of an element essential to that party's case a n d on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. In evaluating a motion for summary judgment, the court must draw all in f e re n c e s in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F.2d 1 3 6 , 138 (7th Cir. 1989). "However, we are not required to draw every conceivable in f e re n c e from the record ­ only those inferences that are reasonable." L e -Is r a e l, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (citation omitted). Bank Leumi

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I I . BACKGROUND T h e plaintiff is a state prisoner who was housed in the Wisconsin Secure P r o g ra m Facility (WSPF) at all times relevant to this action. Richard Raemisch is the S e c r e ta r y of the Wisconsin Department of Corrections (DOC). Defendant Peter Huibregtse is currently employed as the warden of the WSPF. A . Plaintiff's Facts 1 T h e plaintiff avers that he complains daily to Huibregtse and others at the W S P F regarding the lack of food and being denied access to the courts. He also has re p e ate d ly complained to Raemisch, with no response. T h e plaintiff avers that he was repeatedly denied trays of food, cut from three m e a ls to two and a half plus "seg loaf," and given trays that were missing food (had less than w h a t was on the menu) or contained contaminated or expired food. The plaintiff has c o n se rv e d calories by not going to recreation or legal recreation, not taking showers, sleeping m o s t of the time, cutting down on visits, licking trays, and eating apple cores and banana p e e l s. T h e plaintiff complains that his parents cannot send him postage or food and a ls o cannot buy postage and food for him from the Canteen. One hundred percent of the p lain tiff 's income is taken, and he receives no money at all. He suggests that prison and jail s ta f f have put him in the position to create federal and state court filing fees, and legal loan a n d account overdrafts.
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The plaintiff submitted a sworn affidavit in response to the defendants' motion for summary judgment. P l a i n t i f f' s facts come from that affidavit.

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T h e plaintiff's cell has been searched repeatedly. No drugs or weapons have b e e n found, but his carbon paper, paper, envelopes, and forms have been seized. The p lain tiff avers that the business office refuses to sell him carbon paper, which he is unable to buy elsewhere, and also refuses to copy some of his legal work. He avers that he was

p la c ed on property and paper restriction for a total of six weeks and that his court deadlines h a v e been ignored. The plaintiff states that he was finally given his $ .37 embossed e n v e lo p e s two days before the postage rate went up to $. 39. He also says that he was denied th e chance to file bankruptcy. He also asserts that the prison staff has seized his legal mail, d e n ie d and suspended his legal loans, and refused to sell him legal supplies. He further contends that neither prison staff nor the Department of Justice will p h o to c o p y his medical file for him, but he admits that he never signed an authorization. The p la in tif f suggests that his legal loan was suspended to thwart his ability to litigate Case No. 0 6 -C -0 3 3 8 (E.D. Wis.). B . Defendants' Facts 2 R ae m is c h does not supervise day to day operations of individual DOC in s titu tio n s or employees. He has no personal involvement in implementing the policies at W S P F , and he had no personal involvement in the allegations indicated in the plaintiff's c o m p lain t. Huibregtse does not supervise the day to day decisions of personnel at the v a rio u s departments within WSPF. Huibregtse has no knowledge of, nor was he ever
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Defendants' facts are taken from their Proposed Findings of Fact, to the extent that they are supported by a d m is s ib l e evidence.

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p e rs o n a lly involved in, any decisions concerning any treatment plans, programs, or other d e c is io n s related to the plaintiff's medical needs. At no time did Huibregtse believe that W S P F was not providing 3 adequate meals a day and that the meals provided to the plaintiff p o s e d a substantial risk to his health or safety. 1 . Food Allowed at WSPF P u r s u a n t to DAI Policy 309.20.01, all incoming property must be new and s h ip p e d directly from the vendor. Family and friends are not allowed to send food to inmates a t WSPF. To maintain a safe and secure environment for staff and inmates, all property item s received at WSPF are subject to inspection and approval to ensure conformity to p erso n al property regulations, that the items pose no security concerns, and to ensure c o n tra b a n d is not present. It is a challenge for the DOC to prevent drugs and other c o n tra b a n d from being sent to inmates through the mail. Property and/or food allowed from s o u rc e s outside the institution create a new vehicle for contraband such as drugs and weapons to be smuggled into the institution. Contraband in the institution is minimal due to the efforts m a d e by the DOC and the diligence of the DOC staff, but it is still finding its way into the in s titu tio n . Limiting the types of property allowed to be sent into the institution and re c eiv in g property only from approved sources greatly reduces the chances of contraband b e in g smuggled into the institution. A llo w in g property/food to be sent into the institution by friends and family c o u ld lead to an increase in mail volume, and therefore make it more difficult for staff to

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e f f e c tiv e ly search incoming mail and property. The increased volume would also be likely to cause mailroom backups and cause inmates to suffer delays in receiving their mail. G iv e n the population and security status of inmates, the necessity of cell s e a rc h e s for contraband is essential to maintaining security within the institution. The time n e c e s s a ry to conduct a thorough cell search would greatly increase if staff had to spend time h a n d lin g items which are more likely to conceal contraband given the material make up of f o o d . This additional time diminishes the security staff's ability to address other institution f u n c tio n s . In addition to the possibility of contraband, there would also be concerns with s to ra g e issues, contamination from spoilage, and what the ingredients really are in the food. F rie n d s and family are not allowed to purchase food and postage for an inmate f ro m the institution canteen. All purchases must be made by the inmate from his inmate a c co u n t. However, friends and family are allowed to put money in an inmate's account for s p e n d in g . WSPF does not have the capability to allow friends and family to purchase items f ro m the canteen for an inmate. The canteen purchasing system is set up to deduct charges f r o m an inmate's accounts, not outside payment methods. W S P F serves three meals a day. All of WSPF's menus exceed the minimum re q u ire m e n ts for caloric content. WSPF's menus are monitored and analyzed regularly to e n s u re that they continue to maintain compliance with the dietary requirements. Wisconsin Administrative Code 309.23(1) states in part: "The department shall p ro v id e nutritious and quality food for all inmates. Menus shall satisfy generally accepted

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n u tritio n a l standards." Institution meals are measured and periodically checked for adequacy in terms of calories, protein, carbohydrates, and other dietary factors. If an inmate believes th a t he needs more food/calories per day for health reasons, he may request a special diet and t h e n Health Services Unit personnel will monitor the inmate's weight and modify his diet a c c o r d i n g l y. 2 . Legal Loans, Legal Materials, and Plaintiff's Finances R e a so n a b le efforts are made to ensure adequate legal services are available to in d ig e n t inmates. Legal materials are available from the institution law library or the law lib ra ria n . If an inmate is indigent and would like to request a legal loan, he may do so by c o n ta c tin g the Business Office. Legal loans may be used to purchase legal supplies such as p a p e r and pens. Legal loans also may be used for legal postage and copies of legal materials. If an inmate has been approved for a legal loan, supplies may be obtained by sending a d is b u rs e m e n t request along with a completed order form to the Business Office/legal s u p p lie s . Jacobs has been approved and has utilized legal loans while housed at WSPF. P u r s u a n t to the WSPF Segregated Inmate Handbook (which the plaintiff re c eiv e d while house at WSPF), and in order to prevent contraband from entering the in s titu tio n , correspondence is to be sent in embossed envelopes that must be purchased from th e Business Office. Inmates may request extra postage by submitting a disbursement. S ta m p s can contain chemical contraband like PCP, Angel Dust, or other drugs. Once a stamp h a s been placed on an envelope, there is less chance of an exchange of these types of d a n g e r o u s chemicals.

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T h e plaintiff currently has the following outstanding debts: (1) account over d ra f t $1.33, (2) federal court filing fees $3,037.42, (3) state court filing fees $3,493.80, (4) m e d ic a l co-pays $116.83, (5) legal loans $1,325.44, (6) institution restitution $169.75. The g ran d total is $8,144.57. DAI 309.45.02 dictates the order in which these obligations are w ith h e ld and at what percentage. If funds were to be received on the plaintiff's behalf, d e d u c tio n s would be taken out in order. $1.33 would be withheld first at 100%. Then 20% o f whatever is left would be withheld for the first federal filing fee, then 20% of what is left w o u ld be for the second filing fee, and so on until all thirteen federal filing fees have been w ith h e ld . After the federal filing fees, 100% would be taken out until each of the 20 state c o u rt filing fees are paid in full. Once the state filing fees are paid off completely, 15% of a n y remaining funds would be withheld and placed into his release account. Medical copays w o u ld be withheld next at 100% of remaining funds until they are paid in full. Legal loans a re withheld at 50% and are only taken one at a time. This means that until the first legal lo a n is paid in full, no deductions would be taking for the remaining loans. After the legal loan deduction, 50% of anything left would be deducted for the institution restitution. It w o u ld take a very large deposit for any of the funds to remain in the plaintiff's account. I I I . DISCUSSION T h e defendants argue that they are entitled to summary judgment on the p la in tif f 's Eighth Amendment conditions of confinement and First Amendment access to the c o u rt claims. They submit that the plaintiff will not be able to prove that he was provided w ith inadequate meals or denied meaningful access to the courts.

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T h e plaintiff continues to argue that he is being denied adequate food and a c ce ss to the courts. He also argues against the policies that prohibit his parents from s e n d in g him food and postage. A . Personal Involvement S e c tio n 1983 does not allow actions against persons merely because of their s u p e r v is o r y roles. T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010); Palmer v. Marion C o u n ty , 327 F.3d 594 (7th Cir. 2003). Since a § 1983 cause of action is against a "person," in order "[t]o recover damages under § 1983, a plaintiff must establish that a defendant was p e rs o n a lly responsible for the deprivation of a constitutional right." Johnson v. Snyder, 444 F .3 d 579, 583 (7th Cir. 2006) (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1 9 9 5 )). In order to be personally responsible, an official "must know about the conduct and f a cilita te it, approve it, condone it, or turn a blind eye." Id. It is not clear that either of the defendants were personally involved with any d e p riv a tio n alleged by the plaintiff. In fact, they have both presented admissible evidence, in the form of their affidavits, that they were not personally involved in any decision re g a rd in g the plaintiff. However, the plaintiff avers that he complained to both Raemisch a n d Huibregtse but received no response. Additionally, to the extent the plaintiff contends th a t prison or Department of Corrections policies resulted in constitutional deprivations, the d e f e n d a n t could be held liable in their official capacities.

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B . Eighth Amendment " U n d e r the Eighth Amendment, a prisoner's diet must provide adequate n u tritio n , but prison officials cannot be held liable under the Eighth Amendment unless the p riso n e r shows both an objectively serious risk of harm and that the officials knew about it a n d could have prevented it but did not." Mays v. Springborn, 575 F.3d 643, 648 (7th Cir. 2 0 0 9 ) (citations omitted). The plaintiff argues that a doctor authorized him to receive additional food and th a t the defendants failed to follow the doctor's orders. However, the plaintiff has present n o admissible evidence that a doctor ordered that he receive additional food. The plaintiff re f ere n c es a medical record in his affidavit, but he does not attach it, which is required if a p a p e r or part of a paper is referred to in an affidavit. See Fed. R. Civ. P. 56(e)(1). A c c o rd in g ly, these assertions are unsupported and will not be considered. A plaintiff who puts his health at issue in litigation thereby waives the p h ys ic ia n -p a tie n t privilege. Wis. Stat. § 905.04(4)(c). Nevertheless, an authorization from th e plaintiff giving informed consent is necessary for the records to be copied and used by th e defendants in this litigation. Wis. Stat. § 14682(1). In this case, the plaintiff refused to p ro v id e such an authorization. As a result, he may not rely on any information found in his m e d ic a l records to support his claims. The plaintiff provides vague assertions regarding the meals he was provided a t the WSPF, but he does not include details or even approximate dates. At this stage of the p r o c e e d in g s , the plaintiff must support his claims with more than conclusory allegations.

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" S u m m a ry judgment is not a dress rehearsal or practice run; it is the put up or shut up m o m e n t in the lawsuit, when a party must show what evidence it has that would convince a trie r of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F .3 d 852, 859 (7th Cir. 2005) (internal quotation marks and citations omitted). Even viewed in the light most favorable to the plaintiff, his vague assertions are not enough to constitute d e lib e ra te indifference to his adequate nutrition. He has not proved a sufficiently serious d e p riv a tio n regarding meals missed. M o re o v e r, to the extent the plaintiff challenges the policies precluding his p a re n ts from sending him food, his claims fail. The defendants have presented

u n c o n tro v e rte d evidence that their polices regarding meals, food being sent from outside the p ris o n , and canteen purchases are reasonably related to legitimate prison interests. Turner v . Safley, 482 U.S. 78, 89-90 (1987). It was the plaintiff's decision to file so many lawsuits, k n o w in g that the filing fees would be established as obligations against his account and that a n y funds received on his behalf would be withheld to pay for the outstanding debts. By a llo w in g friends and family to purchase items for an inmate from the canteen, it would allow a n inmate possibly to ignore financial obligations that they have made through the DOC, the f e d e r a l courts, and the state courts. C . First Amendment U n d e r the First Amendment, "persons in prison, like other individuals, have th e right to petition the Government for redress of grievances which, of course, includes a c ce ss of prisoners to the courts for the purpose of presenting their complaints." Bridges v.

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G ilb e r t, 557 F.3d 541, 553 (7th Cir. 2009) (internal quotations and citations omitted). "A p ris o n e r asserting a denial of access claim must show an "actual injury" in the form of in te rf e re n c e with a `nonfrivolous legal claim.'" Id. (quoting Lewis v. Casey, 518 U.S. 343, 3 5 3 (1996)). "In other words, the right of access to the court is tied to and limited by a p ris o n e r's right to `vindication for a separate and distinct right to seek judicial relief for some w ro n g .'" Bridges, 557 F.3d at 553 (quoting Lehn v. Holmes, 364 F.3d 862, 865 (7th Cir. 2 0 0 4 )). T h e plaintiff's affidavit references Jacobs v. Frank, et al., Case No. 06-C-0338 (E .D . Wis.), and suggests that the defendants' actions or policies that case to be dismissed. H o w e v e r, that case was dismissed on January 12, 2009, pursuant to Federal Rule of Civil P r o c e d u re 37(b), because the plaintiff failed to comply with an explicit direction from the C o u rt to provide the defendants with a signed authorization. Judgment was entered the same d a y. The plaintiff does not aver that the defendants' prevented him from signing the a u th o riz a tio n . The plaintiff chose not to provide the defendants with a signed authorization, a s ordered by the court, and, as a result, his case was dismissed. Thus, the court concludes th a t the defendants' actions did not result in "actual injury" in the form of interference with th e plaintiff's claims in Case No. 06-C-0338. In order to prevail on an access to the courts c la im , the plaintiff must prove that he lost one or more cases due to the deprivations he a lle g e s . See Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir. 2006). He has not done so. A c c o rd in g ly, the defendants' motion for summary judgment will be granted with respect to th e plaintiff's access to the courts claim.

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I V . ORDER I T IS THEREFORE ORDERED that the defendants' motion for summary ju d g m e n t is granted. (Docket #108). I T IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of the defendants on the plaintiff's claims that he was denied adequate food and a c c e s s to the courts while housed at the WSPF. Dated at Milwaukee, Wisconsin, this 30th day of September, 2010. S O ORDERED,

s / Rudolph T. Randa H O N . RUDOLPH T. RANDA U .S . District Judge

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