Smith v. McCaughtry et al

Filing 105

ORDER signed by Judge Lynn Adelman on 9/11/12 granting 68 Motion for Summary Judgment. Further ordering the clerk to enter judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CORNELL SMITH,
Plaintiff,
v.

Case No. 09-CV-00404

GARY R. McCAUGHTRY, MATTHEW FRANK,
PHIL KINGSTON, MICHAEL THURMER,
STEVEN SCHUELER, THOMAS CORE,
MARK MELCHER, DUWAYNE LONGSETH,
PHIL KUSSMAN, SGT. GILL, M. THORP,
BETH LIND, and RICK RAEMISCH,
Defendants.

DECISION AND ORDER
Pro se plaintiff Cornell Smith brings this action under 42 U.S.C. § 1983 against
several state officials. Before me now is defendants’ motion for summary judgment on all
of plaintiff’s claims.
The facts in this case, when viewed in the light most favorable to plaintiff as the nonmoving party, are as follows: At all times relevant to this action, plaintiff was incarcerated
at Waupun Correctional Institution (“WCI”) in Waupun, Wisconsin. In early 2001, defendant
Mark Melcher, the Education Director, denied plaintiff a job as a janitor at the prison’s
school. Defendant Melcher claims he made this decision because plaintiff was listed as a
full-time student, and the school does not ordinarily give jobs to full-time students. Plaintiff
claims that he was only a part-time student when he applied to be a janitor, and that the
real reason he was denied the job was because the Wisconsin Department of Corrections
(“DOC”) had a policy of favoring inmates returning from out-of-state prisons. Plaintiff avers

that all 13 defendants named in the complaint were involved with the enforcement of this
policy.
Defendants admit that, prior to April 2005, the DOC gave limited preferential
treatment to inmates returning from out of state. At that time, the DOC was forced to send
some inmates to out-of-state prisons because of problems with overcrowding, and the
DOC encouraged prison officials to give returning inmates preference when allocating
certain services. The goals of this policy were to incent good behavior while serving time
out of state, to demonstrate the DOC’s appreciation for these inmate’s cooperation, and
to recognize the emotional hardship long distance placement may have caused. However,
defendants aver that this policy had nothing to do with the denial of plaintiff’s work
application because it only applied to certain treatment programs, not education or work
opportunities.
Subsequently, in January 2003 and again in May 2003, defendant Thomas Core
denied plaintiff’s applications for jobs in the canteen and in food services. Defendant Core
denied plaintiff these jobs because of problem’s with plaintiff’s “Institution Adjustment.” (Aff.
of Thomas Core, Ex. 1007 at 12, ECF No. 85-1.) One of the criteria prison officials
consider when making job placements is how well a prisoner is adjusting to life in the
institution, including whether an inmate is able to maintain good behavior and follow the
rules. In April 2002, plaintiff had entered another inmate’s quarters and committed theft.
As a result, he was placed in segregation status for 240 days. Defendant Core was
concerned that plaintiff’s history of theft made him a bad candidate for work in the canteen
or food services because the DOC had experienced a lot of problems with food theft by

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workers in both of these areas. He encouraged plaintiff to reapply after taking more time
to prove he had positively adjusted his behavior.
After screening the amended complaint, I allowed plaintiff to proceed on an official
capacity claim against all defendants under the equal protection clause challenging the
policy of favoring prisoners returning from out-of-state prisons. I also allowed plaintiff to
proceed on three claims against defendants Thomas Core, Matthew Frank, Gary
McCaughtry, and Rick Raemisch: (1) an equal protection claim against these defendants
in their official capacities for enforcing a policy that arbitrarily strips inmates of privileges
based on their history of institutional adjustment, (2) an equal protection claim against
these defendants in their individual capacities for discrimination against plaintiff in favor of
other inmates, and (3) a claim that these defendants violated the due process clause by
not giving him sufficient process when denying him job opportunities. In response to
defendants’ motion for summary judgment, plaintiff withdrew his claim under the due
process clause. Therefore, I will only deal with the first three claims.
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.
The Equal Protection Clause commands that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. Often an
equal protection violation occurs when a state actor draws distinctions among people
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based on membership in a “suspect” class, Martin v. Shawano-Gresham Sch. Dist., 295
F.3d 701, 712 (7th Cir.2002), or denies someone a fundamental right such as freedom of
speech or religion, Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1000 (7th Cir.2006).
In this case, since there was no deprivation of a fundamental right or discrimination based
on membership in a suspect class, the proper standard of review is rational basis. Id. at
1000–01. Rational basis review requires plaintiff to prove that (1) the state actor
intentionally treated plaintiff differently from others similarly situated; (2) this different
treatment was caused by plaintiff’s membership in a particular class; and (3) this different
treatment was not rationally related to a legitimate state interest. Smith v. City of Chicago,
457 F.3d 643, 650–51 (7th Cir.2006).
First, I find that plaintiff’s equal protection challenge to the policy favoring inmates
returning from out of state fails. Assuming plaintiff is correct and that he was denied the
janitor job because of this policy, I conclude the DOC had a rational basis for making the
decision it did. Inmates serving time outside Wisconsin were more likely to experience
emotional hardship and were not guaranteed access to the same services as those within
the state. The DOC had an interest in rectifying this inequality by offering returning inmates
certain limited benefits with respect to work and education opportunities. By offering
privileges to returning inmates, the DOC was also able to incent inmates to maintain good
behavior while serving time out of state. Thus, the DOC did not violate the equal protection
clause by denying plaintiff the janitor job.
Second, I find that plaintiff’s challenge to the “institutional adjustment” policy that
allegedly arbitrarily stripped inmates of privileges based on their past behavior fails
because there was no such policy. As plaintiff now concedes, an inmate’s history of
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institutional adjustment was merely one factor that DOC officials considered when making
individual job placement decisions.
Finally, I reject plaintiff’s claim that defendants Core, Frank, McCaughtry and
Raemisch violated the equal protection clause by denying plaintiff jobs in the canteen and
food services based on his history of theft. The claim plaintiff presents is a class-of-one
equal protection claim. Although “[t]he law concerning ‘class of one’ equal protection claims
is in flux,” Del Marcelle v. Brown Cnty. Corp.¸680 F.3d 887, 888 (7th Cir. 2012), a class-ofone plaintiff must at least show “intentionally discriminatory treatment lacking a rational
basis.” Jordan v. Cockroft, No. 12-1633, 2012 WL 3104876, at *2 (7th Cir. Aug. 1, 2012)
(citing Del Marcelle, 680 F.3d at 899, 913). Frank, McCaughtry and Raemisch were not
involved in the decision to deny plaintiff’s job applications, and Core, who was involved,
has provided a rational basis for his decisions. According to Core, plaintiff’s history of theft
did not make him a good candidate for work in food services or the canteen because food
theft was a persistent problem in these areas. Plaintiff attempts to undermine the rational
basis for Core’s decision by pointing to another inmate, James Griffin, who was allowed
to work in food services despite having a lengthy history of rules of violations. However,
Griffin was not written up for theft. Griffin’s last conduct report prior to working in food
services was for disorderly conduct and possession of contraband.
The decision Core made is exactly the type of discretionary decision contemplated
by the United States Supreme Court in Engquist v. Oregon Dep’t of Agriculture, 553 U.S.
591 (2008). In Engquist, the Court eliminated class-of-one claims for government
employees in a case involving a former state employee laid off during agency
reorganization who alleged she was fired for arbitrary and malicious reasons. Id. at 605.
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The Court found that some types of state action inherently “involve discretionary
decisionmaking based on a vast array of subjective, individualized assessments.” Id. at
603. Shortly after the Engquist decision, the Seventh Circuit held that, just as public
employees cannot bring class-of-one cases against their employer, so also prosecutorial
and sentencing discretion is not to be fettered by class-of-one suits. United States v.
Moore, 543 F.3d 891, 899–901 (7th Cir. 2008). Thus, none of the defendants violated the
equal protection clause by denying plaintiff jobs based on his history of institutional
adjustment.
Because I find in favor of defendants on the merits of plaintiff’s claims, I do not need
to address defendants’ argument that plaintiff failed to exhaust his administrative remedies
prior to bringing this action.
THEREFORE, IT IS ORDERED that defendants’ motion for summary judgment
[DOCKET #68] is GRANTED. The clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 11th day of September 2012.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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