Peace v. Unknown et al

Filing 69

DECISION and ORDER signed by Judge Pamela Pepper on 9/30/2016 GRANTING 31 Defendants' Motion to Dismiss Plaintiff's Retaliation Claim; GRANTING 34 Defendants' Motion for Partial Summary Judgment on Exhaustion Grounds; DENYING 50 Defendants' Motion in Limine; DISMISSING 51 Plaintiff's Motion to Appoint Counsel; DISMISSING 52 Plaintiff's Motion for Partial Summary Judgment; DENYING 56 Defendants' Motion to Stay Briefing on Plaintiff's Motion for Partial Summary Judgment; DISMISSING 57 Plaintiff's Motion for Order; and DENYING 60 Plaintiff's Motion to Strike Defendants' Motion for Partial Summary Judgment. (cc: all counsel) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DANIEL ANTHONY PEACE,
Plaintiff,
v.

Case No. 14-cv-1416-pp

WARDEN PAUL KEMPER, LISA AVILA,
ROBIN DIEBOLD, KIMBERLY ENGEL,
CO JONES, CO II LAMKE,
TERRY ZIEM, CO JOHN DOE 1, and
CO JOHN DOE 2,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S RETALIATION CLAIM (DKT. NO. 31), GRANTING
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON
EXHAUSTION GROUNDS (DKT. NO. 34), DENYING DEFENDANTS’ MOTION
IN LIMINE (DKT. NO. 50), DENYING DEFENDANTS’ MOTION TO STAY
BRIEFING ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(DKT. NO. 56), DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
MOTINO FOR PARTIAL SUMMARY JUDGMENT (DKT. NO. 60), DENYING
PLAINTIFF’S REMAINING MOTIONS (DKT. NOS. 51, 52, 57), AND
DISMISSING CASE
______________________________________________________________________________
The plaintiff, Daniel Anthony Peace, is proceeding on (1) Eighth and
Fourteenth Amendment claims that staff spread information about a sexual
assault the plaintiff reported, and (2) a First Amendment retaliation claim that
he received a conduct report in retaliation for reporting a sexual assault. Dkt.
No. 25.
On November 13, 2015, the defendants filed a motion to dismiss the
plaintiff’s retaliation claim (Dkt. No. 31), and a motion for partial summary
judgment on exhaustion grounds on the plaintiff’s other claims, Dkt. No. 34.
1

On February 10, 2016, the court stayed discovery on the merits until after it
could decide the motion to dismiss and motion for partial summary judgment.
Dkt. No. 46.
Since the court stayed discovery on February 10, 2016, the plaintiff has
filed: a motion to appoint officer of the court (Dkt. No. 51), a motion for partial
summary judgment on his retaliation claim (Dkt. No. 52), a motion for order
allowing use of his release account for copies and legal supplies (Dkt. No. 57),
and a motion to strike the defendant’s motion for partial summary judgment on
exhaustion grounds (Dkt. No. 60). The defendants have filed: a motion in limine
(Dkt. No. 50) and a motion to stay briefing on the plaintiff’s motion for partial
summary judgment, Dkt. No. 56.
The court will deny the plaintiff’s motion to strike the defendant’s motion
for partial summary judgment on exhaustion grounds, because it is an
improper attempt to supplement the plaintiff’s response to the defendants’
motion more than two months after his original response. Dkt. No. 60. The
court will deny the other post-February 10, 2016 motions, based on the fact
that it is granting both the defendants’ motion to dismiss the retaliation claim
and their partial summary judgment motion.
I.

Motion to Dismiss Retaliation Claim
The defendants ask the court to dismiss the plaintiff’s retaliation claim.

Dkt. No. 31. They submit that it is not plausible to infer that the plaintiff
received a conduct report in retaliation for reporting a sexual assault. Instead,
based on the conduct report itself, which the plaintiff attached to his amended
2

complaint, the defendants argue that the only plausible bases for the conduct
report were (1) the plaintiff being less than truthful during the sexual assault
investigation and (2) the plaintiff engaging in sexual acts.
A.

Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). When evaluating a motion to dismiss
under Rule 12(b)(6), the court accepts as true all well-pleaded facts in the
complaint and draws all reasonable inferences from those facts in the plaintiff's
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a motion to dismiss under Rule 12(b)(6), a complaint must allege “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937 (2009). In this context, “plausible,” as opposed to “merely conceivable
or speculative,” means that the plaintiff must include “enough details about the
subject-matter of the case to present a story that holds together.” Carlson v.
CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (quoting Swanson v.
Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir. 2010)). “[T]he proper question to
ask is still could these things have happened, not did they happen.” Id. at 827
(internal quotation and citation omitted). The plaintiffs “need not ‘show’
3

anything to survive a motion under Rule 12(b)(6)—[they] need only allege.”
Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005).
In their motion to dismiss, the defendants may rely only on the
pleadings, but exhibits are part of a complaint. See Fed. R. Civ. P. 10(c) ( “A
copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”). Plaintiffs may oppose a motion to dismiss with
“materials outside the pleadings to illustrate the facts the party expects to be
able to prove.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.
2012) (citing Early v. Bankers Life and Cas. Co., 959 F.2d 75, 79 (7th Cir.
1992) for the proposition that a “plaintiff is free to assert new facts in [a] brief
opposing [a] motion to dismiss”).
B.

Legal Analysis

The defendants argue that the plaintiff’s complaint failed to state a First
Amendment retaliation claim because retaliation is not a plausible reason for
the conduct report the plaintiff received. Rather, the conduct report attached to
the amended complaint sets forth the reasons it was issued: the writer
determined the plaintiff was “less than truthful” and had engaged in sexual
acts, which violates the Wisconsin Administrative Code. Additionally, the
defendants submit that if the plaintiff’s report of sexual assault was false, it
was not protected by the First Amendment.
To state a retaliation claim, the plaintiff must allege that “(1) he engaged
in activity protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future; and (3) the First
4

Amendment activity was at least a motivating factor in the [d]efendants’
decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009) (internal quotations omitted).
Originally, the plaintiff alleged that the defendants filed the conduct
report against him in retaliation, not just for his reporting an assault, but also
due to his criminal history, pending charges and the reasons he was reincarcerated. The court, however, considered only whether the report of sexual
assault resulted in retaliation, Dkt. No. 25 at 12, because the other reasons the
plaintiff asserted do not constitute protected First Amendment activity.
Based on a liberal construction of the amended complaint, the court
allowed the plaintiff to proceed on the retaliation claim in that limited fashion.
The defendants now argue that retaliation is not a plausible reason for the
conduct report, because the conduct report itself contains the reasons it was
issued. Conduct Report 2288755, attached to the plaintiff’s amended
complaint, states:
During the course of a PREA investigation inmate Peace,
Daniel #508684 alleged that he was woken by his cellmate
Bain, Kyle #585894 pulling down Peace’s pants and
attempted to anally penetrate him. Bain states Peace and he
had discussed sexual activity including oral sex. It was
reported Peace asked Bain to monitor when staff completed
rounds. As soon as the security staff completed their
observation round, Peace performed oral sex on Bain. Bain
states Peace pulled Bain’s pants down and gave Bain oral
sex – then Bain performed anal sex on Peace. During the
course of the investigation it was apparent both inmates
were less than truthful. However both inmates admit that
the anal intercourse occurred with Bain penetrating Peace.
Throughout the interview Bain stated that the sex was
consensual and included Bain receiving oral sex from Peace.
Inmate Peace denies oral sex occurred but states he was
5

forced to comply with the anal sex. Per the POC-41 WI DOC
Sexual Abuse/Assault prevention and intervention an
overview for offenders provided to every inmate under the
supervision of WI DOC Offender on Offender Sexual Conduct
is any type of consensual activity between offenders as
described by DOC 303.15. Sexual acts between offenders,
even when no obligations are raised are prohibited acts. Both
parties engaged in sexual conduct may be found guilty of an
offense and receive disciplinary sanction. WI DOC has a
zero-tolerance for this activity and offenders must be held
accountable for their actions. This activity erodes the
authority of WI DOC to adequately manage the population to
ensure its safety, security, and integrity. Both inmates Bain
and Peace engaged in sexual acts.
Dkt. No. 26, Exhibit 2.
In response to the defendants’ motion, the plaintiff relies primarily on his
own allegations regarding retaliation, which he made in his amended
complaint. While the amended complaint itself included just enough to state a
plausible retaliation claim, that is not the case when one reads the complaint
alongside the conduct report itself. It would be “speculative” to suggest another
reason for the conduct report (retaliation) where the conduct report itself shows
that the PREA investigators did not believe the plaintiff and determined that he
and his cellmate engaged in consensual sexual activity, which is not allowed in
prison. See Carlson, 758 F.3d at 826-27. The court will grant the defendants’
motion to dismiss the plaintiff’s retaliation claim and dismiss that claim with
prejudice.
II.

Motion for Summary Judgment on Exhaustion Grounds
The defendants argue that they are entitled to partial summary judgment

on the plaintiff’s Eighth and Fourteenth Amendment claims (the other two
claims on which the court allowed the plaintiff to proceed at the screening
6

stage) that the defendants shared information about the plaintiff being sexually
assaulted with other inmates and staff members.
A.

Standard of Review

“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.” Anderson, 477 U.S. at 248. A dispute
over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is 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).
7

B.

Facts

The facts are primarily taken from “Defendants’ Proposed Findings of
Fact” (Dkt. No. 36), the Declaration of Daniel Anthony Peace (Dkt. No. 41), and
Chapter 310 of the Wisconsin Administrative Code.
The Wisconsin Department of Corrections (DOC) maintains an Inmate
Complaint Review System (“ICRS”) in Wisconsin adult correctional institutions
to afford inmates a process by which grievances may be expeditiously raised,
investigated, and decided. Dkt. No. 36, ¶2; Wis. Admin. Code § DOC
310.01(2)(a). An inmate begins the ICRS process by filing a complaint with the
institution complaint examiner (“ICE”) at his institution. Dkt. No. 36, ¶3. The
complaint must be filed within fourteen calendar days of an alleged incident
and must “clearly identify the issue.” Dkt. No. 36, ¶4; Wis. Admin. Code § DOC
310.09(1)(e) and (6). The ICE reviews and investigates the inmate complaint at
the institution level, and makes a recommendation on the complaint to the
appropriate reviewing authority, who renders a decision. Dkt. No. 36, ¶5; Wis.
Admin. Code § DOC 310.11. In order for an inmate to exhaust his
administrative remedy, he must complete the complaint process at the
institution level as well as the appeal process with the Corrections Complaint
Examiner’s office, which results in a decision by the Officer of the Secretary.
Dkt. No. 36, ¶8.
The plaintiff filed his only relevant complaint on July 21, 2014, and it
received the number WCI-2014-14249. Dkt. No. 36, ¶12. The complaint stated:
I was told by ticket hearing officer Lt. Ziem to appeal ticket
#2288755. Due to rookie officer C.O. II K. Engel serving me
8

the ticket, and giving me the wrong advise on due process.
She told me I could get due process going the short way.
I appeal ticket #2288755 on this fact. I was deined [six] my
appeal, without the fact of what I was appealing being
address.
When the appeal was sent back to me it said officer/hearing
officer made the right decision.
I was given a rape test at the hospital that prove, I never
gave and oral sex to anyone. It also had DNA to prove I was
rape.
There was cotton swabs, tooken [six] from, my mouth, finger
nails, anus, and private areas.
The cotton swabs from my mouth prove I never gave any oral
sex.
Id. at ¶13; Dkt. No. 37-2 at 14 [sic].
On August 18, 2014, the ICE recommended the offender complaint be
dismissed on the grounds that she found no procedural error that occurred in
the disciplinary process in conjunction with CR #2288755. Dkt. No. 36, ¶14.
Warden Kemper, as the reviewing authority, affirmed the ICE’s
recommendation and dismissed the offender complaint on September 5, 2014.
Id. at ¶15. The plaintiff appealed the dismissal to the Corrections Complaint
Examiner’s Office. Id. at ¶16. In his appeal of the offender complaint, the
plaintiff wrote, in part, “The next day CO Jones came back to my cell told me I
had to sign the same paper. She gave me a copy of the ticket.” Dkt. No. 41-1 at
15. The plaintiff’s appeal did not complain that he had been retaliated against
for reporting that he had been raped. Dkt. No. 36, ¶17. The plaintiff filed no
further offender complaints relevant to this lawsuit. Id. at ¶18.
9

Some complaints are rejected at the institution level, for reasons
specified in Wis. Admin. Code § DOC 310.11(5). Dkt. No. 36, ¶6. However,
there are no letters from the ICE’s office or the CCE’s office returning any
rejected offender complaints to the plaintiff that are related to this lawsuit. Dkt.
No. 36, ¶18.
C.

Legal Analysis

Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be
brought with respect to prison conditions under Section 1983 of this title or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. §1997e(e). The PLRA exhaustion requirement requires
“proper exhaustion,” meaning that a prisoner must complete the administrative
review process in accordance with the applicable procedural rules. Woodford v.
Ngo, 548 U.S. 81, 87, 92 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1023
(7th Cir. 2002). It is the defendants’ burden to establish that the plaintiff has
failed to exhaust administrative remedies. Walker v. Thompson, 288 F.3d 1005,
1009 (7th Cir. 2002).
The undisputed facts show that plaintiff failed to exhaust his
administrative remedies with regard to this claim. The ICRS was the
administrative remedy available to the plaintiff, and his only offender complaint
regarding this incident failed to include allegations that staff impermissibly
shared information regarding his sexual assault with other inmates and staff
members.
10

The plaintiff contends that he exhausted his administrative remedies in
other ways, by telling Avila and Diebold as part of the PREA investigation that
staff members told other inmates and staff members about his sexual assault
and that he was being harassed as a result. The plaintiff’s statements during
the PREA investigated do not constitute proper exhaustion.
“Unless the prisoner completes the administrative process by following
the rules the state has established for that process, exhaustion has not
occurred.” Pozo, 286 F.3d at 1023. “Any other approach would allow a prisoner
to ‘exhaust’ state remedies by spurning them, which would defeat the statutory
objective of requiring the prisoner to give the prison administration an
opportunity to fix the problem – or to reduce the damages and perhaps to shed
light on factual disputes that may arise in litigation even if the prison’s solution
does not fully satisfy the prisoner.” Id. at 1023-24 (citations omitted). “To
exhaust administrative remedies, a person must follow the rules governing
filing and prosecution of a claim.” Id. at 1025.
The plaintiff also argues that the offender complaint he filed put the
defendants on notice of his claim regarding shared information. He suggests
that it is implicit in the offender complaint that Engel told another officer about
the sexual assault, because Jones returned the next day to have the plaintiff
sign the due process form. That is not enough, particularly because the
constitutional claim relates to the unnecessary or gratuitous dissemination of
information about the sexual assault. Moreover, the plaintiff’s offender
complaint focused exclusively on the problems with the plaintiff’s waiver of due
11

process, his conduct report hearing, and his appeal from the conduct report
decision. There is nothing in the plaintiff’s offender complaint or his appeal
regarding sharing information regarding the plaintiff being sexually assaulted
with other inmates or unnecessarily with other staff.
Additionally, the court notes that it appears that the plaintiff failed to
exhaust his administrative remedies with regard to his retaliation claim. The
same facts apply to that claim, and the plaintiff’s lone offender complaint did
not mention retaliation. Even if the court had denied the defendants’ motion to
dismiss the plaintiff’s retaliation claim, the court would have found the plaintiff
failed to exhaust his administrative remedies with regard to that claim and
dismissed it without prejudice.
III.

OTHER MOTIONS
Because the court’s resolution of the defendants’ motion to dismiss and

the defendants’ motion for summary judgment results in the dismissal of all
three of the plaintiff’s claims, the court does not need to decide the remaining
motions, and will deny them.
IV.

CONCLUSION
The court GRANTS the defendants’ motion to dismiss plaintiff’s

retaliation claim. Dkt. No. 31. That claim is DISMISSED WITH PREJUDICE.
The court GRANTS the defendants’ motion for partial summary
judgment on exhaustion grounds. Dkt. No. 34. The plaintiff’s Eighth and
Fourteenth Amendment claims are DISMISSED WITHOUT PREJUDICE
The Clerk of Court will enter judgment accordingly.
12

The court DENIES the parties’ other pending motions. Dkt. Nos. 50, 51,
52, 56, 57, 60.
Dated in Milwaukee, Wisconsin this 30th day of September, 2016.

13