Singh v. Gegare et al

Filing 54

ORDER signed by Magistrate Judge William E Duffin. NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants' 17 motion for summary judgment is granted. IT IS FURTHER ORDERED that the plaintiff's 40 motion for partial summary judgment is denied. (cc: all counsel, plaintiff) (asc)

`UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN
AMAN SINGH,
Plaintiff,
v.

Case No. 14-CV-837

ADAM GEGARE, et al.,
Defendants.

ORDER

Pro se plaintiff Aman Singh is a former Wisconsin state prisoner. He filed this
lawsuit under 42 U.S.C. § 1983 alleging violations of his civil rights while incarcerated at
the Sturtevant Transitional Facility (STF) and the Racine Correctional Institution (RCI).
The defendants have filed a motion for summary judgment and Singh has filed a
motion for partial summary judgment. The court has jurisdiction over this action
pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. The case
was assigned to this court according to the random assignment of civil cases pursuant
to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72 (E.D. Wis.), and the parties have
consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and General
Local Rule 73 (E.D. Wis.).

FACTS
The facts are taken from the Defendants’ Proposed Findings of Fact (DPFOF)
(ECF No. 19), the Defendants’ Supplemental Proposed Findings of Fact (DSPFOF) (ECF
No. 46), and from Singh’s Supplemental Proposed Findings of Fact (PSPFOF) (ECF No.
49). Singh also filed Proposed Findings of Fact (PPFOF) (ECF No. 42). However, those
facts do not cite to evidentiary materials in the record. Thus, the court will not consider
them. See Fed. R Civ. P. 56(c), Civil L.R. 56(b)(1)(C) (E.D. Wis.).

A. Parties and Claims
Singh was a Wisconsin state prisoner incarcerated at STF and RCI. He alleges
that he received a conduct report and was transferred from STF to RCI in retaliation for
a letter he wrote to another inmate that included statements about a possible escape
attempt, gambling, and selling services for profit to other inmates; that he was deprived
of due process during the hearing on the conduct report; that he was housed in
unconstitutional conditions of confinement at RCI; that he was denied access to the
courts while at RCI; and that he was denied religious freedom. Although the complaint
advances an equal protection claim, Singh has clarified that he is not pursuing such a
claim. (ECF No. 39 and 40 at 8.)
The defendants are RCI/STF Captain Adam Gegare, RCI Lieutenant Jeremy
Gloudemans, STF Corrections Center Superintendent Lisa Avila, RCI Offender
Classification Specialists Melissa Karpinski and Kimberly Marks, STF Segregation
2

Property Officer Stephanie Kline, STF Social Worker Michael Burman, RCI Captain
Lucas Weber, STF Property Supervisor Rick Freeze, RCI Security Director Jason Aldana,
RCI Corrections Unit Supervisor Michael Howard, former RCI Warden John Paquin,
current RCI Warden Paul Kemper, Wisconsin Department of Corrections (DOC)
Division of Adult Institutions Administrator Cathy Jess, DOC Secretary Edward Wall,
and RCI Operation Program Associate Nancy Padgett.
B. Conduct Report 1955474
On June 4, 2012, Captain Gegare received a letter signed by Singh, written to
another inmate, that contained statements about possible activities in violation of
institution rules and policies. (ECF No. 19, ¶22.) The letter is dated March 22, 2012, and
the letter’s envelope is post-marked April 11, 2012. (ECF No. 24-1 and 2.) On the first
page of the letter, Singh stated:
I’m the boss of this typewriter bro. People saw what I do with this thing
and they be paying me to type up shit for them… no one will play me in
chess for canteen… STF really sucks.
(ECF No. 24-1, ¶9.) Singh further states on page two of the letter:
I work over at the RCI garage. Dude, if I REALLY wanted to escape, it
wouldn’t be that hard. For an hour every day I walk the perimeter. Going
around the outside of RCI, OUTSIDE the fence… Jesus Christ, if I didn’t
have work release or the freaking appeal to hope for, I would be across the
street and on a train and see you never DOC!
(ECF No. 24-1, ¶10.) On page three, Singh states: “I really think I might walk off if I
don’t get some love on appeal. We’ll see.” (ECF No. 24-1, ¶11.)

3

Captain Gegare investigated the letter. (ECF No. 19, ¶23.) Singh was placed on
temporary lock-up pending investigation of the letter and the conduct report process.
(ECF No. 19, ¶24.)
Captain Gegare found that “Singh was working on an appeal and that he did
have a job at the RCI garage at around the time the letter was written.” (ECF No. 19,
¶30.) Gegare took Singh’s statement as a threat that he was preparing to engage in an
escape attempt if his appeal was not decided in his favor. (ECF No. 19, ¶31.) Incidents
involving statements of escape are taken very seriously at STF and are routinely
addressed and investigated. (ECF No. 19, ¶32.)
On June 5, 2012, Captain Gegare issued Singh Conduct Report 1955474 for
violation of Wis. Admin. Code §§ DOC 303.22A, Escape (attempt); DOC 303.32,
Enterprise and Fraud; and DOC 303.60, Gambling.1 (ECF No. 19, ¶33.) Supervisor
Avila decided that the conduct report could proceed as a major offense. (ECF No. 19,
¶34.)
On June 11, 2012, a disciplinary hearing was held. (ECF No. 19, ¶35.) Lieutenant
Gloudemans was the hearing officer. (ECF No. 19, ¶36.) Singh, who was present at the
hearing, admitted to writing the letter but stated that he did not understand what he
was being charged with. (ECF No. 19, ¶38.) Singh further stated:

1

All citations to the Wisconsin Administrative Code DOC Ch. 303 refer to the version applicable at the time of
Singh’s conduct report, DOC Register December 2006 No. 612.

4

I didn’t create a plan. It was light hearted and said if I really wanted to. If I
really wanted to escape I wouldn’t have quit that job. The reason I left is
because I was the target of racial harassment. This letter is at least 3
months old. At no point did I have any actual plans to escape. Mrs. Lemke
can confirm I never walked off or anything like that. There was nothing
specific stating I was going to do it. I just said if I wanted to, I could. I had
no plans to escape and the last 3 months have demonstrated that, and so
does the fact that I removed myself from that job. I never gambled while
at STF. This is just talk in a letter and nothing more. I never took anything
from any inmate who I typed things for. I refused payment from the
inmates that offered to pay me for typing things up for them.
(ECF No. 25, ¶10; No. 24-2 at 6.)
After reviewing the evidence and testimony, Lieutenant Gloudemans found the
conduct report to be accurate and credible. (ECF No. 19, ¶39.) He made his decision
based on the following:
• Per the DOC 303 rulebook: “any inmate who does or attempts to do any
of the following without permission is guilty of an offense: leaves an
institution, leaves the custody of a staff member while outside of the
institution, does not follow the inmate’s assigned schedule, leaves the
authorized area to which the inmate is assigned.”
• Based on the letter typed and signed by Singh, it was clear that he was
having thoughts of escaping, or attempting to escape from STF’s custody.
Singh specifically wrote “I work over at the RCI garage. Dude, if I really
wanted to escape it wouldn’t be that hard. I walk the perimeter, going
around the outside of RCI.” Singh further wrote “Jesus Christ, if I didn’t
have work-release or the appeal to hope for, I would be across the street
and on a train and see you never DOC!” Lastly Singh wrote “Fuck bro,
prison really sucks. I really think I might walk off if I don’t get some love
on appeal. We’ll see.”
• These thoughts expressed by Singh showed that he had previous
thoughts of escaping and even developed a plan on how to execute his
escape attempt.

5

• These comments are not condoned within an institutional setting.
• Singh admitted to writing the letter containing thoughts and actions of
how to escape from STF.
• Singh stated in the letter: “I’m the boss of this typewriter bro. People
saw what I do with this thing and they be paying me to type up shit for
them.” Clearly stating he profited from other inmates due to his abilities
to use his typewriter.
• Any inmate who engages in a business or enterprise, whether or not for
profit, or sells anything except as specifically allowed under other sections
is guilty of an offense.
• Singh further stated in his letter: “No one will play me in chess for
canteen in the whole joint. Man, I burned that one up quick when I beat
this guy 10 times in a row, a buck a game, in about an hour.”
• Any inmate who is involved in gambling, gambles or possesses any
gambling materials is guilty. “Gambles” includes betting money or
anything of value on the outcome of all or any part of any game of skill.
• Singh contradicted his own words to another inmate. When asked about
this he again stated these words were simply boasting to another inmate
in a private letter. Therefore his defense was that he was lying when he
wrote his letter but claimed to be telling the truth at the hearing.
(ECF No. 25, ¶13; No. 24-2 at 6-7.)
On June 11, 2012, based on his findings, Lieutenant Gloudemans found Singh
guilty of violating Wis. Admin. Code DOC §§ 303.22A (Escape (attempt)), 303.32
(Enterprise and Fraud), and 303.60 (Gambling).

(ECF No. 19, ¶41.)

Lieutenant

Gloudemans gave Singh a disposition of 210 days Disciplinary Separation due to
Singh’s attitude toward the offense, the risk of disruption, and to hold him accountable
for his actions. (ECF No. 19, ¶¶42-43.)
6

Threats and statements of escape made by inmates in letters to other inmates are
taken very seriously within the DOC and are routinely addressed and investigated.
(ECF No. 46, ¶152.) Statements of possible escape plans are harmful to DOC institutions
such as STF and the community because they use the institution’s staff time and limited
resources investigating the statements instead of for the regularly conducted business of
the institution. (ECF No. 46, ¶154.)
C. Program Review of Custody Status
On June 11, 2012, following Gloudemans’s findings and disposition, Singh was
referred for Program Review under Wis. Admin. Code DOC Ch. 302. (ECF No. 19, ¶93.)
Pursuant to Wis. Admin. Code DOC § 303.65(5), if the hearing officer finds an inmate
guilty, the inmate may be referred to classification to review the inmate’s custody level
or location. (ECF No. 19, ¶92.) A Reclassification Hearing was held on June 26, 2012.
(ECF No. 19, ¶94.)
Karpinski was the Offender Classification Specialist for the reclassification
hearing. (ECF No. 19, ¶95.) The Program Review Committee also included Captain
Weber and Supervisor Howard. (ECF No. 19, ¶96.) The committee considered the
conduct report finding of guilty, the recommendation of Singh’s social worker Michael
Burman, and Singh’s “AODA”(Alcohol and Other Drug Abuse) needs. (ECF No. 19,
¶¶98-101.) Pursuant to Wis. Admin. Code DOC § 302.07, the committee recommended
elevating Singh’s status to medium custody with transfer to RCI. (ECF No. 19, ¶¶102,

7

104.) The committee noted that Singh’s conduct occurred in a minimum security setting
and that elevation to medium custody for a period of monitoring was appropriate.
(ECF No. 19, ¶103.)

Due to Singh’s segregated status, his custody status was

temporarily elevated to maximum custody and he was transferred to RCI for temporary
placement on the Restrictive Housing Unit (segregation), which is located at RCI. (ECF
No. 19, ¶91.)
Singh received a disposition of 210 days disciplinary separation on June 26, 2012.
He was released from segregation on October 9, 2012, after serving half of the 210 days.
(ECF No. 19, ¶¶132-133.)
D. Additional Conduct Reports
On March 25, 2014, Singh was issued Conduct Report 2318139 for violating Wis.
Admin. Code DOC §§ 303.63 (Violations of Institution Policies and Procedures) and
303.47 (Possession of Contraband – Miscellaneous) following a random search of his
cell. (ECF No. 19, ¶134.) An officer found 123 packets of Kool Aid drink mix in Singh’s
locker, which violates institution rules. (ECF No. 19, ¶135.) A disciplinary hearing was
conducted by Howard. (ECF No. 19, ¶136.) Howard found Singh guilty of violating
institution rules and gave him a disposition of ten hours extra duty and restitution for
the 123 Kool Aid packets. (ECF No. 19, ¶¶138-139.)
On April 24, 2014, Singh was issued Conduct Report 2316037 for violating Wis.
Admin. Code DOC §§ 303.40 (Unauthorized Transfer of Property), 303.47 (Possession of

8

Contraband – Miscellaneous), 303.62 (Inadequate Work Performance), and 303.63
(Violations of Institution Policies and Procedures). (ECF No. 19, ¶145.) Singh was
observed carrying towels away from the laundry room while working there. (ECF No.
19, ¶146.) When questioned, he removed various items from the towels and tried to
place them in his waist band. (ECF No. 19, ¶146.) The items included ten emery
boards, three stamped envelopes and four stamps. (ECF No. 19, ¶146.)

Another

disciplinary hearing was conducted by Howard, who found Singh guilty of violating
institution rules and sentenced him to five days of loss of dayroom. (ECF No. 19, ¶¶14849.) Howard does not know what happened to the contraband items. (ECF No. 19,
¶149.)
SUMMARY JUDGMENT STANDARD
“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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at
248. 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.

9

A party asserting that a fact is or is not genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
ANALYSIS
The defendants contend that they are entitled to summary judgment on all of
Singh’s claims. Singh seeks summary judgment on two of his claims – his claim that he
was issued Conduct Report 1955474 and transferred to RCI in retaliation for writing the
letter to another inmate, and his due process claim related to the disciplinary hearing on
Conduct Report 19555474. With respect to his remaining claims, Singh contends that
the court should deny the defendants’ motion for summary judgment.
A. Conduct Report 1955474 and Transfer to RCI
1. Retaliation Claim

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Singh contends that the defendants improperly issued him Conduct Report
1955474 and transferred him to RCI in retaliation for writing a letter, which he claims
was activity protected by the First Amendment. He claims that the defendants’ actions
in response to the letter were exaggerated and retaliatory. (Singh’s summary judgment
materials link his retaliation claim with his disciplinary hearing due process claim. His
argument that the defendants’ response to his letter was exaggerated and retaliatory is
based in part on his contention that the conduct report disposition was not support by
“some evidence.” This lack of “some evidence” argument is key to Singh’s due process
claim. Despite the fact that the retaliation and due process claims are both based on
Singh’s letter, the court considers the claims separately for the sake of clarity and
because the standard for each claim is different.)
The defendants contend that Singh was issued Conduct Report 1955474 based on
the contents of his letter to another inmate which referenced a potential escape attempt,
gambling, and charging inmates for typing services. The defendants further contend
that Singh was transferred to RCI because the Program Review Committee
recommended an elevated custody level based on his poor conduct, the nature of his
misconduct, which included attempted escape behaviors, and AODA residential needs.
To survive summary judgment on a First Amendment retaliation claim, Singh
needs to present evidence from which a reasonable jury could conclude that (1) he
engaged in protected First Amendment activity, (2) he suffered a deprivation that

11

would likely deter future First Amendment activity, and (3) the protected activity
caused the deprivation. See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). The question of whether a prisoner’s speech is
protected by the First Amendment is governed by the standard established in Turner v.
Safley, 482 U.S. 78, 89 (1987), under which a prison regulation that impinges on
prisoners’ constitutional rights is valid if “reasonably related to legitimate penological
interests.” Watkins, 599 F.3d at 794-95 (citing Bridges, 557 F.3d at 551). In applying the
Turner standard to a First Amendment retaliation claim, the court examines whether the
prisoner engaged in speech in a manner consistent with legitimate penological interests.
Id. (citing Bridges, 557 F.3d at 551) (concluding that a prisoner's speech, which provided
an account of an incident where prison officials were alleged to have mistreated an
inmate who was gravely ill, was not inconsistent with legitimate penological interests)).
First, it is well settled that prisons have a legitimate interest in deterring and
preventing inmates from escaping. Escape plans are not protected speech and are not
sufficient to support a retaliation claim. See Procunier v. Martinez, 416 U.S. 396, 412-13
(1974), overruled on other grounds, Thornburgh v. Abbot, 490 U.S. 401, 413-14 (1989)
(recognizing that a prisoner’s escape plan is a “most obvious example” of material that
is fundamentally contrary to the legitimate penological objectives of preserving
discipline and maintaining institutional security against escape). Therefore, Singh’s

12

argument that he was retaliated against in response to him exercising protected First
Amendment activity is without merit.
With regard to Singh’s argument that the defendants’ response to his letter was
exaggerated, Singh claims that, since he no longer held the position at the RCI garage
at the time of the disciplinary hearing, he was no longer a threat to escape and the
resources to combat the threat did not have to be used. However, having determined
that Singh’s letter was not protected First Amendment activity, this argument adds
nothing to his retaliation claim. In any event, it is undisputed that incidents involving
statements of escape are taken very seriously at STF.

It is also undisputed that

statements of possible escape plans are harmful to STF and the community because they
use the institution’s staff time and limited resources investigating the claims.

The

determination that Singh’s letter was a security risk even though he did not have the
prison job at the time of the investigation is a prison management issue better left to
prison management. See Shaw v. Murphy, 532 U.S. 223, 230 (2001) (“[P]rison officials are
to remain the primary arbiters of the problems that arise in prison management.”).
Indeed, the question is not whether the escape was carried out but whether it was
reasonable to perceive the letter as a threat to prison security. See Van den Bosch v.
Raemisch, 658 F.3d 778, 788 (7th Cir. 2011).
Singh’s letter was not protected speech and his retaliation claim fails as a matter
of law.

13

2. Due Process Claim
Singh contends that the conduct report was not supported by any evidence of an
escape attempt. He asserts that two facts demonstrate that the defendants’ response to
his letter was exaggerated. Singh asserts that, first, the fact that he adamantly denied
that he ever planned an escape attempt and argued that the letter actually demonstrated
lack of intent, shows that the defendants’ response to his letter was exaggerated.
Second, Singh contends that the fact that the conduct report confirmed that he had
voluntarily quit his RCI garage job months earlier and thus any alleged attempted
escape was a factual impossibility, also demonstrates that the defendants’ response to
his letter was exaggerated.”

According to Singh, because determinations of early

release are primarily based on major conduct reports, by issuing, determining and
upholding an unsupported conduct report, the effect of which was to impact Singh’s
ability to obtain early release, Gegare, Gloudemans and Avila violated his right to due
process.
The defendants contend that Singh fails to state an actionable due process claim
because he simply alleges that the substantive evidence was not sufficient to support a
guilty finding on his conduct report. Citing Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974), they argue that the full panoply of due process rights which a defendant has in a
criminal prosecution do not apply to prison disciplinary proceedings. The defendants

14

point out that Singh does not allege that he was deprived of those due process rights
which a defendant has in a prison disciplinary proceeding.
The Fourteenth Amendment prohibits states from depriving “any person of life,
liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. In
disciplinary proceedings, due process requires that prisoners be given: “(1) advance (at
least 24 hours before hearing) written notice of the claimed violation; (2) the
opportunity to be heard before an impartial decision maker; (3) the opportunity to call
witnesses and present documentary evidence (when consistent with institutional
safety); and (4) a written statement by the fact-finder of the evidence relied on and the
reasons for the disciplinary action.” Rasheed–Bey v. Duckworth, 969 F.2d 357, 361 (7th
Cir. 1992) (citation omitted); see also Wolff, 418 U.S. at 563-67). Procedural due process
also requires prison disciplinary officials to disclose material exculpatory evidence to
the charged offenders. Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003). A prisoner
challenging the process he was afforded in a prison disciplinary proceeding must meet
two requirements: (1) show that he has a liberty or property interest that the state has
interfered with; and (2) show that the procedures he was afforded were constitutionally
deficient. Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994) (citing Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989)).
In addition to procedural safeguards, the disciplinary decision must be
supported by at least “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v. Hill,

15

472 U.S. 445, 455 (1985). This standard is met if “there was some evidence from which
the conclusion of the administrative tribunal could be deduced . . . . .” Id. (quoting
United States ex rel. Vajtauer v. Comm. of Immigration, 273 U.S. 103, 106 (1927)). “[T]he
relevant question is whether there is any evidence in the record that could support the
conclusion reached by the disciplinary board.” Id. at 455-56 (citation omitted). While
the evidence must bear some indicia of reliability, once this threshold has been crossed
the court’s inquiry ends and it will not reverse the disciplinary board’s decision.
Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007) (citing Viens v. Daniels, 871 F.2d 1328,
1335 (7th Cir. 1989)).
The parties have not addressed whether Singh had a liberty interest under the
circumstances presented here. Assuming, without deciding, that Singh did have a
liberty interest in remaining free from segregation for the 105 days he served, see Kervin
v. Barnes, 787 F.3d 833, 836-37 (7th Cir. 2015) (a period of segregation “considerably
shorter” than six months may, depending on the conditions of confinement and on any
additional punishments, establish a violation), the record reveals that Singh received all
the process that was due and that Gloudeman’s decision on Conduct Report 1955474
was supported by “some evidence.”
In support of his argument that Gloudeman lacked “some evidence” to support a
guilty finding for attempted escape based on the contents of his letter, Singh contends
that courts have consistently rejected the proposition that he says the defendants

16

advocate here, that is, that any “loose talk” by inmates concerning the subject of escape,
no matter how brief or nebulous, is sufficient for discipline as an attempted escape. He
contends that, in the absence of an actual escape attempt, disciplining an inmate for
“attempted escape” is an exaggerated response to otherwise legitimate prison security
concerns.

Singh cites to Freitas v. Auger, 837 F.2d 806, 811 (8th Cir. 1988), and

Burnsworth v. Gunderson, 179 F.3d 771 (9th Cir. 1999), in support of his argument.
In Freitas, based on a memorandum concerning polygraph results and two
confidential statements of informants, a prisoner was found guilty of conspiring to
assist others to escape. 837 F.2d at 808. The court stated that, while the prisoner “was
not and could not have been disciplined simply for talking about an escape[,]” there
was “some evidence showing that an escape was being planned and that Freitas had
encouraged the furtherance of this plan or assisted in its preparation, although he was
not going to participate in it.” Id. at 811. The court also stated that, while the prisoner’s
statement that “he would himself escape if given a good opportunity because of his fifty
year sentence,” by itself, would not constitute “some evidence,” when this evidence was
combined with the statements of the confidential informants which directly implicated
the prisoner for assisting in the plans, there was “some evidence.” Id. at 811-12.
In Burnsworth, the Ninth Circuit Court of Appeals accepted the district court’s
determination that an inmate’s statement that if he were returned to the general
population he would be forced to “hop the fence and run all the way to Tuscon” did not

17

constitute sufficient evidence of escape. 179 F.3d at 772; see also Linea v. Lane, 882 F.2d
1171, 1176 (7th Cir. 1989) (polygraph evidence, without more, did not support a finding
that a prisoner aided and abetted an escape).
Here, Singh was charged with attempted escape in violation of Wis. Admin.
Code § DOC 303.22A (2006), which is the combination of § DOC 303.22 (Escape) and
§ DOC 303.06 (Attempt) (2006).2 Under § DOC 303.22(1), an inmate who does or
attempts to do any of the following without permission is guilty of an offense: (a) leaves
an institution. (b) leaves the custody of a staff member while outside of the institution.
(c) does not follow the inmate’s assigned schedule, or (d) leaves the authorized area to
which the inmate is assigned. Under § DOC 303.06(1), an inmate is guilty of attempt to
violate a rule if either of the following are true: (a) the inmate planned to do something
which would have been a rule violation if actually committed, or (b) the inmate did acts
which showed a plan to violate the rule when the acts occurred.
Gegare charged Singh with attempted escape based on the statements in his
letter. Specifically, Singh stated that it would not be hard to escape if he really wanted
to because he walked the perimeter of the institution, that if he did not have work
release or the appeal to hope for, he would attempt to escape by crossing the street and
getting on a train, and that “I really think I might walk off if I don’t get some love on
appeal. We’ll see.” Gloudeman determined that, “[t]hese thoughts expressed by Singh
2

The number used for attempts in recordkeeping and conduct reports shall be the offense’s number plus the suffix
A. Wis. Admin. Code § DOC 303.06(2) (2006).

18

showed that he had previous thoughts of escaping and even developed a plan on how
to execute his escape attempt”; “Singh admitted to writing the letter containing
thoughts and actions of how to escape from STF”; and “it was clear that [Singh] was
having thoughts of escaping, or attempting to escape from STF’s custody.” (ECF No.
25, ¶13.)
Singh’s letter satisfied the level of proof needed to satisfy the “some evidence”
standard. Not only did Singh have thoughts of escaping, but his letter shows that he
also had a plan for how to do it, which qualifies as a violation under § DOC 303.06(1)(a)
(inmate guilty of an attempt to violate a rule if the “inmate planned to do something
which would have been a rule violation if actually committed”). The court will not
second guess Gloudemans’s conclusion that Singh was not being truthful when he said
that he was only joking in his letter and that his statements to the inmate were not
meant to be taken seriously. See Hill, 472 U.S. at 455.
In addition to the escape attempt charge, Conduct Report 1955474 charged Singh
with enterprise and fraud, and with gambling, and Lieutenant Gloudemans also found
Singh guilty of those violations at the disciplinary hearing. Singh contends that the
defendants lack “some evidence” to support the guilty determinations for those
violations.
With regard to the gambling charge, Singh’s letter stated, “No one will play me
in chess for canteen in this whole joint. Man, I burned that one up quick when I beat

19

this guy 10 times in a row, a buck a game, in about an hour.” (ECF No. 25, ¶ 13.) Based
on these statements, Lieutenant Gloudemans found Singh guilty of gambling (§ DOC
303.60) because:
Any inmate who is involved in gambling, gambles or possess any
gambling materials is guilty. “Gambles” includes betting money or
anything of value on the outcome of all or any part of any game of skill.
Singh contradicted his own words to another inmate. When asked about
this he again stated these words were simply boasting to another inmate
in a private letter. Therefore his defense was that he was lying when he
wrote his letter but claimed to be telling the truth at the hearing.
(ECF No. 25, ¶ 13.)
Singh contends that the fact that his letter states that he did gamble, but that he
denied gambling at the disciplinary hearing, demonstrates that Lieuetenant
Gloudemans lacked “some evidence” to support the guilty finding for gambling. Here,
however,

Singh’s

statements

in

his

letter

support

Lieutenant

Gloudemans’

determination that Singh was guilty of gambling. Lieutenant Gloudemans simply did
not believe Singh’s hearing testimony that he did not gamble. The court will not
second-guess Gloudemans’ findings. See Meeks v. McBride, 81 F.3d 717, 720 (7th Cir.
1996).
In sum, Gloudemans’ guilty findings on the attempted escape and gambling
charges are supported by the requisite “some evidence.” The guilty findings for these
charges supported the 210-day segregation sentence. (Singh also contends that the
defendants do not show “some evidence” that he was guilty of the other conduct report
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charge, enterprising. However, the court need not reach this argument because the
guilty findings for attempted escape and gambling supported the 210-day segregations
disposition. See Wis. Admin. Code § DOC 303.84, Table, Schedule of Penalties (2006).)
The court will grant the defendants’ motion for summary judgment on Singh’s
due process claim.
B. Access to the Courts
On June 5, 2012, Singh was placed in temporary lock-up at RCI pending a review
of his letter and investigation of the statements made in the letter. (ECF No. 19, ¶46.)
However, Singh’s supervision was maintained by STF pending a Classification Review.
(ECF No. 19, ¶47.) Because Singh’s supervision was still under STF, the Property
Department at STF maintained his property. (ECF No. 19, ¶48.) All inmates coming
from STF must wait until a Program Review Classification is completed to obtain their
property. (ECF No. 19, ¶49.) No property is transferred until supervision transfer is
approved. (ECF No. 19, ¶50.)
On June 26, 2012, after a Program Review Classification hearing, Singh’s
permanent custody and supervision was transferred to RCI. (ECF No. 19, ¶53.) On or
about June 29, 2012, Singh’s property was sent to RCI. (ECF No. 19, ¶54.) After the RCI
property department staff inventoried and processed his property, Singh would have
been provided with that part of his property that is allowed pursuant to his status,
which would have included his legal paperwork. (ECF No. 19, ¶¶55-56.)

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Singh was the plaintiff in Waukesha County Case Number 12CV664, a certiorari
action challenging the revocation of his probation. (ECF No. 49, ¶1.) After Singh was
placed in segregation, on July 9, 2012, the action was dismissed without prejudice for
failure to serve3. (ECF No. 49-1, Exh. 1 at 2.) Singh made a number of requests and filed
a number of inmate complaints for his legal work, both prior to and after the dismissal
of his lawsuit. (ECF No. 49, ¶3.) His requests included the details of the Waukesha case
and explained that he needed his legal work to prosecute his case. (ECF No. 49, ¶4.)
Singh contends that the above conduct on the part of the defendants deprived
him of his constitutional right to meaningful access to the courts. The defendants
contend that Singh’s access to the courts claims fail both factually and as a matter of
law. Singh withdraws his claim based on his direct appeals in case numbers 12AP2709CR and 12AP2710-CR. (ECF No. 39/40 at 5.) However, Singh contends that the court
should deny the defendants’ summary judgment motion as to his access to the courts
claims based on his action for a writ of certiorari, Singh v. Schwarz, Waukesha County
Case Number 12-CV-664, and his habeas action, Singh v. Kemper, 2014 WI App 43, 353,
Wis. 2d 520, 846 N.W.2d 820.

3

Singh’s proposed fact states that the certiorari action was dismissed for “failure to prosecute,” and he refers to
attached “CCAP docket.” (ECF No. 49 ¶ 2.) The attached docket is an excerpt from “Court Record Events for
2012CF000664 in Waukesha County.” (ECF No 49-1, Exh 1.) This docket sheet exhibit was obtained from the
Wisconsin Court System’s Circuit Court Access, which provides access to the public records of the Wisconsin
Circuit Courts (wcca.wiscourts.gov). (ECF No. 49-1, Exh. 1.) The docket entry for July 9, 2012, states the court
dismissed the matter without prejudice for failure to serve. (Id.)

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Prisoners have a constitutional right to meaningful access to the courts. See
Bounds v. Smith, 430 U.S. 817, 821, 823 (1977); Lehn v. Holmes, 364 F.3d 862, 865-66 (7th
Cir. 2004). Prison authorities, therefore, must “assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828. While
the right of access to the courts requires prison officials to provide prisoners with the
necessary tools “to attack their sentences, directly or collaterally,” and “to challenge the
conditions of their confinement,” Lewis v. Casey, 518 U.S. 343, 355 (1996), it is not an
abstract, freestanding right to legal assistance, id. at 351. A prisoner asserting a denial
of access to the courts claim must show an “actual injury” in the form of interference
with a “nonfrivolous legal claim.” Id. at 353. “In other words, the right of access to the
courts is tied to and limited by a prisoner's right to ‘vindication for a separate and
distinct right to seek judicial relief for some wrong.’” Lehn, 364 F.3d at 865 (quoting
Christopher v. Harbury, 536 U.S. 403, 415 (2002)). To establish injury an inmate need not
show that if he had been provided with adequate legal facilities he would have
prevailed in a lawsuit. Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998); see also Hoard v.
Reddy, 175 F.3d 531, 533 (7th Cir. 1999).

Rather, he need only show that he was

prevented “from litigating a nonfrivolous case.” Walters, 163 F.3d at 434.
Singh filed his writ of certiorari action, Singh v. Schwarz, Waukesha County Case
Number 12-CV-664, on February 24, 2012. He had 90 days, or until May 24, 2012, to

23

serve a copy of the writ on the defendant.

See Wis. Stat. § 801.02(1), (5). Singh

transferred from STF to RCI on June 5, 2012, and his property was transferred to RCI on
June 29, 2012. He contends that lack of access to his legal property for those twentyfour days caused his petition to be dismissed for lack of prosecution. (As described
above, the petition was dismissed without prejudice for lack of service, not for lack of
prosecution.) He also contends that, even after the case was dismissed and his legal
work was at RCI, prison officials denied him access to his legal materials because he
was in segregation and only permitted to work on open cases.
The twenty-four-day period in which Singh did not have access to his legal
property, June 5 through June 29, 2012, occurred after the deadline for service had
passed. Thus, Singh’s transfer to RCI was not the cause of the dismissal of his certiorari
action for lack of service. Thus, he has not established actual injury related to the
dismissal of his certiorari action.
Turning to Singh’s habeas action, he did in fact prevail in part in that action. See
Singh v. Kemper, 353 Wis. 2d 520 (Ct. App. 2014). In that case, the Wisconsin Court of
Appeals held that the retroactive application of a law first enacted after Singh
committed the crimes which were the subject of his appeal violated the ex post facto
clauses of the United States and Wisconsin Constitutions by denying him the
opportunities for early release from prison which existed when he committed the
offenses. Id. at 523-24. The appeals court also determined that Singh had not met his

24

burden of showing that provisions of the new law adjusting the role of the sentencing
court violated the ex post facto clauses, and that Singh was not entitled to “positive
adjustment time” for his time in jail. Id. at 524.
Singh alleges that his limited law library access as well as limited access to legal
materials while in segregation impeded his ability to research his ex post facto claim
and “so delayed his filing.” (ECF No. 39/40 at 7.) However, Singh has not presented
evidence as to why his alleged limited library time caused delays; it is not clear what
filing was delayed and why it was delayed. Moreover, mere delay in a case does not,
without more, establish actual injury. See Lewis, 518 U.S. at 351; Gentry v. Duckworth, 65
F.3d 555, 559 (7th Cir. 1995) (prisoner must show actual substantial prejudice to specific
litigation).
As a result of Singh’s failure to show actual injury, the court will grant the
defendants’ motion for summary judgment on Singh’s access to the courts claims.
C. Property
Singh alleges that Howard unlawfully ordered him to pay $10 restitution after a
disciplinary hearing regarding Singh’s possession of 123 packets of Kool Aid. (ECF No.
1 at 4; ECF No. 19, ¶¶ 135, 138-39.) He also alleges that his emery boards, stamped
envelopes, and stamps were unlawfully confiscated after Howard found him guilty of
possessing the items as contraband. (ECF No. 1 at 4; ECF No. 19, ¶¶ 146, 149.) Singh
claims that the restitution order and the destruction of his property were done contrary

25

to DOC procedure. Thus, he is, in effect, arguing that the actions were “random and
unauthorized.” See Leavell v. Ill. Dep’t of Nat. Res., 600 F.3d 798, 804-05 (7th Cir. 2010).
“When the state conduct in question is random and unauthorized, the state
satisfies procedural due process requirements so long as it provides [a] meaningful
post-deprivation remedy.” Id. (quoting Rivera-Powell v. New York City Bd. Of Elections,
470 F.3d 458, 465 (2d Cir. 2006)). When a plaintiff alleges a procedural due process
claim based on “random and unauthorized” conduct, he must either avail himself of
state post-deprivation remedies “or demonstrate that the available remedies are
inadequate.” Id. (quoting Doherty v. City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996)).
Wisconsin affords procedures that can address random, unauthorized
deprivations of property by state officers and officials. It provides tort remedies for
those whose property has been converted or damaged by another. Wis. Stat. §§ 893.35
(action to recover personal property after wrongful taking, conversion, or wrongful
detention), 893.51 (action for damages resulting from wrongful taking, conversion, or
wrongful detention of personal property), and 893.52 (action for damages from injury to
property); see also Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir. 1996) (inmatecomplaint review system, certiorari review under Wisconsin law, and Wisconsin tort
remedies against prison officials are adequate remedies for deprivation of good-time
credits); Wolf–Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir. 1983) (Wisconsin tort remedies

26

are adequate for deprivation of property resulting from sheriff's execution of outdated
writ of restitution).
Thus, the defendants are entitled to summary judgment on Singh’s due process
property claims.
D. Conditions of Confinement
In his complaint Singh contends that the conditions of confinement in
segregation were “atypical.” (ECF No. 1 at 3.) He alleges that, due to over-crowding
conditions, he was required to sleep on the floor, in a double-occupied single cell, while
“locked down for 23 ½ hours a day.” (Id.) Singh also alleges that ants, roaches, and
other bugs ran around the floor of the cell. (Id.) He further states that cleaning supplies
were only available once per week, even if there was a spill. (Id.)
The defendants contend that Singh’s conditions of confinement claim fails
because Singh does not allege that any defendant was aware of the alleged conditions.
The defendants also contend that the claim fails because the alleged conditions, even if
taken as true and even if Singh could show that any defendant was deliberately
indifferent to them, do not rise to the level of a constitutional deprivation.
In response, Singh contends that summary judgment should be deferred and that
he should be permitted to amend his complaint on this claim. According to Singh,
upon re-reading his complaint, he realizes that he did not detail the exact injury that he

27

suffered. He requests that the court allow him to file an amended complaint specifying
his injuries on this claim, as in Hines v. Sheahan, 845 F. Supp. 1265 (N.D. Ill. 1994).
The undisputed facts reveal that, while in segregation, if Singh slept on the floor
he would have slept on a mattress and not directly on the floor. (ECF No. 19, ¶124.) The
facts also reveal that institution staff provide inmates with cleaning supplies on a
weekly basis and expect them to clean their cells weekly. (ECF No. 19, ¶¶119-120.)
These facts, together with Singh’s complaint’s allegations, do not amount to a
sufficiently serious objective deprivation under the Eighth Amendment. See Sain v.
Wood, 512 F.3d 886, 894 (7th Cir. 2008) (inmate’s allegations of cockroaches in cell and an
infestation in the unit were insufficient to state a conditions of confinement claim).
Even if the conditions did implicate the Eighth Amendment, Singh’s failure to show
that any defendant was aware of the bugs in his cell dooms his claim.
In light of the foregoing, the court will deny Singh’s request to amend the
complaint to specify injuries he suffer as a result of the alleged conditions. In any event,
the court would not permit an amendment in this case at this late date because to do so
would prejudice the defendants. See Park v. City of Chi., 297 F.3d 606, 612 (7th Cir. 2002).
The Hines case which Singh references was at the motion to dismiss stage, not the
summary judgment stage, as is the case here. Accordingly, the court will grant the
defendants’ motion for summary judgment on this claim.

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E. Religion Claims
Wisconsin Department of Corrections Division of Adult Institution policies
administer religious programming through the Umbrella Religion Group structure,
identifying eight faith traditions to accommodate groups with similar beliefs and
practices. (ECF No. 19, ¶63.) Sihkism is covered under the Eastern Religious group.
(ECF No. 19, ¶71.) Singh designated his religious preference as Eastern Religion on
January 4, 2012. (ECF No. 19, ¶73.) DOC inmates are permitted to possess approved
religious property associated with their designated religious preference unless the item
presents a threat to the order and safety of the institution. (ECF No. 19, ¶78.) If an
inmate would like to have an accommodation or receive property to practice his
religious preference, the inmate must submit a DOC-2075 Request for New Religious
Practice or Property. (ECF No. 19, ¶83.) Singh did not submit a DOC-2075 requesting
any accommodations or property. (ECF No. 19, ¶88.)
Singh’s religion-based claims are based on allegations that his requests to wear
specific headwear and a steel bracelet were denied and he was therefore unable to
participate in core Sikh practices. In his complaint, Singh sought declaratory relief
asking that the DOC officially recognize Sikhism and that it implement appropriate
policies to permit its free expression.
The defendants contend that Singh’s First Amendment religious freedom and
Religious Land Use and Institutionalized Person Act (RLUIPA) claims fail because he

29

has provided no evidence that any defendant was aware that he ever requested a
specific religious accommodation.4 With regard to his RLUIPA claim, the defendants
contend that they are entitled to summary judgment because Singh has been released
and any request for prospective relief is moot.

In response, Singh contends that

declaratory relief and nominal damages are not moot, citing Koger v. Bryan, 523 F.3d
789, 804 (7th Cir. 2008).
Singh’s requests for injunctive relief are moot because he is no longer
incarcerated. See Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009) (citing Young v. Lane,
922 F.2d 370, 373 (7th Cir. 1991) (concluding that past exposure to illegal conduct at a
prior facility, without threat of repetition, did not present a pending case or controversy
that might warrant injunctive relief); see also Grayson v. Schuler, 666 F.3d 450, 451 (7th
Cir. 2012). In any event, although Singh alleges in his complaint that he requested
religious items from Security Director Aldana, he does not indicate that he ever
submitted a DOC-2075 Request for New Religious Practice or Property form. It is
undisputed that, if an inmate would like to have an accommodation or receive property
to practice his religious preference in addition to what is allowed under policy, he must
submit such a form.

4

Initially, the defendants argued that Singh’s claim fails because he failed to exhaust administrative remedies. The
defendants, however, correctly withdrew this argument and now acknowledge that, because Singh was not a
prisoner when he filed this lawsuit, the Prison Litigation Reform Act’s exhaustion requirement, 42 U.S.C. §
1997e(a), does not apply.

30

Based on these factors, the court will grant the defendants’ summary judgment
motion as to Singh’s religious claims.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants’ motion for
summary judgment (ECF No. 17) is granted.
IT IS FURTHER ORDERED that the plaintiff’s motion for partial summary
judgment (ECF No. 40) is denied.
Dated at Milwaukee, Wisconsin this 20th day of November, 2015.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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