Walker v. Wisconsin Department of Corrections et al
Filing
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DECISION AND ORDER signed by Judge Lynn Adelman on 8/29/14 denying as moot 42 Motion for Leave to File; denying 27 Motion for Summary Judgment. (cc: all counsel, via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TONY D. WALKER,
Plaintiff,
v.
Case No. 13-C-0003
EDWARD WALL, DEIRDRE MORGAN,
CATHY JESS, CHARLES FACKTOR,
AMY BASTEN, MICHAEL BAENEN,
JESSICA LEGOIS, and MICHAEL MOHR,
Defendants.
DECISION AND ORDER
Plaintiff, Tony D. W alker, a W isconsin state prisoner, filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983. He alleges that the defendants denied him access to the
courts when they refused his request for a legal loan. W alker alleges that the denial of the
legal loan resulted in the dismissal of a certiorari action he had filed in state court. The
certiorari action challenged the result of a prison disciplinary proceeding, in which W alker
was sentenced to sixteen days of cell confinement. W alker alleged that the result of the
disciplinary proceeding had to be set aside because, among other reasons, W alker was not
given proper notice of the hearing.
To prevail on a claim alleging denial of access to the courts, a plaintiff must show that
the denial of access resulted in interference with a legal claim. Bridges v. Gilbert, 557 F.3d
541, 553 (7th Cir. 2009) (quoting Lewis v. Casey, 518 U.S. 343, 353 (1996)). To show this,
a plaintiff does not have to prove that, had it not been for the defendant’s interference, he
would have won his case. W alters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998). Rather, all
that the plaintiff must show is that the claim was not frivolous. Id.; accord Burd v. Sessler,
702 F.3d 429, 433–34 (7th Cir. 2012); Bridges, 557 F.3d at 553; Gentry v. Duckworth, 65
F.3d 555, 559–60 (7th Cir. 1995).
The defendants have filed a motion for summary judgment on W alker’s denial-ofaccess claim. The defendants do not dispute that the denial of the legal loan resulted in the
dismissal of W alker’s certiorari petition. Instead, they contend that the claim fails because
W alker cannot demonstrate that the certiorari petition raised nonfrivolous claims. However,
the defendants do not argue that the claims alleged in the state certiorari petition were
frivolous. Instead, they argue that the state court would have dismissed the petition on
procedural grounds because W alker had failed to exhaust his prison remedies before filing
the petition.
Under W isconsin law, to exhaust prison remedies an inmate must use the Inmate
Complaint Review System (“ICRS”), the procedures for which are stated in W isconsin
Administrative Code Chapter DOC 310. W alker did file a complaint pursuant to the ICRS
before filing his certiorari petition, and he did attempt to raise in his complaint the issues he
would eventually include in his certiorari petition. However, the complaint was summarily
rejected on the ground that W alker did not allege “sufficient facts upon which redress may
be made.” See W is. Admin. Code § DOC 310.11(5)(c). W alker appealed the rejection of
his complaint in accordance with the rules of the ICRS, but the rejection was affirmed.
The defendants contend that because W alker’s inmate complaint was dismissed for
failure to allege sufficient facts upon which redress may be made, the circuit court would
have dismissed his certiorari action for failure to exhaust administrative remedies. However,
it is by no means certain that the circuit court would have dismissed the certiorari petition for
this reason. W alker technically exhausted his prison remedies by filing a complaint and
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appealing the denial of that complaint as far as the ICRS allows. Arguably, W alker did not
properly exhaust his prison remedies because, according to the complaint examiner and
appeal officer, he failed to allege sufficient facts to support his claim. But it is only arguable
that W alker did not properly exhaust his prison remedies for this reason. The ICRS does not
contain any guidance to prisoners as to how much detail must be included in a complaint.
It informs prisoners only that they must “clearly identify the issue.” W is. Admin. Code § DOC
310.09(1)(e). W alker seems to have complied with this rule. His complaint stated in relevant
part as follows:
I was never informed of the hearing’s time, date, or place. They simply
opened my door on Saturday and told me to get dressed and go out to the
rotunda. I was never given notice of a hearing.
Mohr Aff. ¶ 8, Ex. 1002 at 1. It is true that W alker did not provide any factual background to
this issue, such as the date of the hearing or the number of the conduct report that gave rise
to the hearing. But what rule of the ICRS requires a prisoner to include that information in
the complaint?
There is nothing in the ICRS analogous to Federal Rule of Civil
Procedure 8(a), which requires a civil plaintiff to include in his or her complaint “a short and
plain statement of the claim showing that the pleader is entitled to relief.” The ICRS requires
the inmate to clearly state the issue, and here the issue was that W alker did not get notice
of a hearing.
Thus, it is at least arguable that W alker properly exhausted his prison
remedies, and therefore the defendants have not shown that W alker’s certiorari complaint
was frivolous.
Accordingly, IT IS ORDERED that the defendants’ motion for summary judgment
(Docket # 27) is DENIED.
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IT IS FURTHER ORDERED that plaintiff’s motion for leave to file supplemental
response (Docket # 42) is DENIED AS MOOT.
Dated at Milwaukee, W isconsin, this 29th day of August, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
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