Wheeler v. Radtke et al

Filing 142

DECISION AND ORDER signed by Judge Lynn Adelman on 2/10/17 denying 128 Plaintiff's Motion for Summary Judgment; granting 133 Defendant's Motion for Summary Judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TINGIA D. WHEELER,
Plaintiff,
v.

Case No. 15-C-95

CAPTAIN CYNTHIA RADTKE,
Defendant.
______________________________________________________________________
DECISION AND ORDER
The pro se plaintiff, Tingia Wheeler, a Wisconsin state prisoner, filed this civil
rights action under 42 U.S.C. § 1983. Wheeler filed a third amended complaint alleging
that the defendant, Captain Cynthia Radtke, issued him a retaliatory conduct report. 1
The parties have filed cross-motions for summary judgment. For the reasons explained
in this order, I will deny plaintiff’s motion, grant defendant’s motion, and dismiss this
case.
I. FACTS
A. Parties
Wheeler is confined at the Waupun Correctional Institution (Waupun). Defendant
Radtke is a supervising officer 2 (captain) at Waupun and has been employed in this
position since February 2012. In addition to her position as captain, between November
2012 and April 2016, Radtke was also the security threat groups/gang coordinator at

1

Wheeler’s third amended complaint raised several other claims. Upon screening the
pleading, I dismissed all claims other than Wheeler’s retaliation claim against Radtke.
(ECF No. 108 at 2-12, 18.)

Waupun.

She left that position to assume the position of administrative captain at

Waupun.
B. Conduct Report 2303800
On January 14, 2013, Captain Radtke issued Wheeler Conduct Report 2303800
for violating Wis. Admin. Code § DOC 303.20, 2 Group Resistance and Petitions, among
other charges. The conduct report was based on an investigation Radtke oversaw
regarding the Gangster Disciples actively recruiting at Waupun.

During the

investigation, Radtke obtained sworn statements from three confidential informants who
testified that Wheeler held a leadership position in the Gangster Disciples at the
institution and was engaging in gang activity. 3 Wheeler was found guilty of the charges
and he was disciplined by being removed from general population.

Once his

disciplinary separation ended, Wheeler was put in an administrative confinement status
that kept him out of general population and prevented him from continuing gang activity.
Wheeler challenged Conduct Report 2303800 in Dane County Case Number 13CV-2390, State ex. rel. Fredrick Jones and Tingia Wheeler v. William Pollard. On April
16, 2014, Dane County Circuit Court Judge Frank Remington affirmed the finding of
guilt.

Judge Remington found that the three confidential informant statements

corroborated one another, and provided sufficient evidence to support Wheeler’s guilt.

2

In December 2014, Wis. Admin. Code ch. DOC 303 was revised. Though most
provisions remain substantively the same, many have been renumbered. All
subsequent references to Wis. Admin. Code ch. DOC 303 are to the December 2006
version, unless otherwise noted.

3

According to Wheeler, the confidential informants were not genuine informers, but
gang members acting out an “Eradication” plot against Wheeler because he wanted to
cut ties with the gang.
2

C. Mail Monitoring Investigation
Around April 2014, Waupun staff learned through monitoring Wheeler’s mail that
he was engaging in efforts to identify the confidential informants who gave statements
against him for Conduct Report 2303800. At the time this issue arose, Captain Radtke
decided that the best course of action was to investigate Wheeler’s actions by
monitoring his mail, and by monitoring the mail of inmates he contacted to assist him in
outing informants. Radtke decided to monitor Wheeler’s mail in lieu of immediate action
because she believed the benefit of doing so outweighed any potential risks.

By

monitoring Wheeler’s mail prison staff could gain valuable information about his
intentions, plans, potential gang activity, and inmates who were helping him. Waupun
staff could also learn which inmates were aligned with Wheeler or on good terms with
him by evaluating the responses received.
Radtke decided against putting Wheeler on notice that Waupun staff were aware
of his actions because that would likely cause him to use a method they could not
monitor as effectively, such as in-person communications with other inmates, to out
perceived informants. At the time, Radtke believed the risk of potential harm from
letting Wheeler continue his letter writing campaign was somewhat remote.

The

information Wheeler had about who informed on him was inaccurate. Additionally, his
information about the inmates he identified as informants was also largely inaccurate.
The inaccuracies ranged from identifying inmates who did not exist, to having the wrong
location. When Wheeler inaccurately named an actual inmate as one of the informants
in his letters, Radtke took steps to make sure that harm was unlikely. Radtke made
sure that the inmates he named were a safe distance from Wheeler. She also had them
3

interviewed by officials at their institution to inform them of Wheeler’s actions, and to
make sure they did not have any concerns about their safety.
Between April and July 2014, Wheeler made intensive efforts through his letters
to determine the identities of inmates he believed were his confidential informants. He
wrote letters to other inmates throughout the Wisconsin Prison System, and in the
community.

In his letters, Wheeler labeled the perceived informants as “snitches,”

“coward,” “fag ass niggas,” “rats,” and “fuck niggas.”
In one letter, he states “I can never be paroled with the allegations that I’m some
kind of gang leader. I can’t win in court even with my intelligence. The only way to win is
by hook or crook just like these white folks are playing it.” (8/31/16 Radtke Decl., ¶ 13;
Dkt. 39-2, Ex. B, p. 5.) Wheeler’s letters showed that he was engaging in efforts to
strong arm perceived informants into recanting any prior statements. At the same time,
he was also seeking retribution against the informants, especially if they would not give
him what he wanted. For example, in one letter he wrote the following about Steward
Williams, a perceived informant:
I’ve written this nigga twice to no avail & it’s time to play the game. Bruh if
I can’t never be free then let this bitch ass nigga sleep in the bed with the
same motherfuckas that he got in bed with. He must be on parole because
you don’t go from Waupun to the streets and don’t have no papers. The
white girl said get on Zaba.com & put his name Steward Earl Williams
[address listed] & his landline and next of kin will pop up. If he has a job,
he should lose it if people are continuously calling him. If he’s got a bitch,
she should know he’s a weak ass bitch ass nigga. To be publically
ridiculed & shamed could convince him to do right. If worse comes, check
to see if he’s on the bracelet. If not, could you or someone ride up to
Madison & then report a two eleven? That would be sweet music to my
ears.
…
4

In this instance – social media (Facebook, Instagram, Twitter) is our
friend. The police are our friends this time – it’s only fitting if we can’t get
what we need – then we flip the script on his bitch ass. …
(8/31/16 Radtke Decl., ¶ 14; Dkt. 39-2, Ex. B pp. 5-6.) “Two eleven” is a common code
word for robbery.
In another letter Wheeler stated:
The only way to beat a CI statement is recantation. This fuck nigga “Will”
just got out on Parole. Jamil wrote me & told me that he got down on John
Brown at Stanley & that’s why he was here so he’s positively one of my
three. I’m gonna drive on juice next week, also I wrote him & that wasn’t
persuasive so since he’s on parole he gotta have a P.O. so we’re going
that route. Little Bruh said if you are in the club then you’re facing
revocation. We need every asset that we got in Madison bruh. See what
your connects can do. Without that recantation then we stuck here.
…
(8/31/16 Radtke Decl., ¶ 15; Dkt. 39-2, Ex. B, p. 16.)
At one point, Wheeler sent an affidavit he wrote for “Steward Williams” to a third
inmate to be passed to his sister. In the letter included with that affidavit he wrote:
Tell her this is ole boy who pulled that dirty mack move on me. He’s out on
papers and I need that affidavit in the next 14 days. If I can’t be free then
why should he be? She should contact community corrections (Parole
Officer) or better yet maybe he is found guilty of a 211 to her. You feel
me?
....
Social media is our friend & the best tool we got right now. My nigga a
recantation will change how the game is played with these statements.
This will set a precedent for us & give all real niggas a chance. …
(8/31/16 Radtke Decl., ¶ 16; Dkt. 39-2, Ex. B, p. 12.)
Most of the inmates that Wheeler solicited in his letters to assist him in the
coercion of perceived informants are known members or associates of security threat
5

groups, most of them being Gangster Disciples like Wheeler. In one letter, Wheeler
states “I talked to both Mr. Prude & Mr. Jones & we all agree that if possible that
everything must be done for me to be saved.” (8/31/16 Radtke Decl., ¶ 17; Dkt. 39-2,
Ex. B. p. 8.) This refers to Terence Prude and Joeval Jones, members of the Gangster
Disciples in the Wisconsin prison system.
Wheeler had obtained an address in Madison for someone he believed was
“Will.” Subsequently, he wrote to a Madison radio station requesting a “shout out,” or a
song request, to “Will” and gave the address. The song Wheeler selected, “First 48” by
“Plies,” was an attempt to announce “Will” as an informant. The song lyrics included
“the crackas applying a little pressure to your pussy nigga break … what happened to
the G (gang) code cause back in the day only pussy ass nigga were the ones that told.”
(8/31/16 Radtke Decl., ¶ 19.) The inmate Wheeler named in the song request was not
paroled to Madison, had never lived at the address provided, and had no family that
lived at that address.
Based on Wheeler’s actions, Department of Corrections Central Administration
staff telephoned the Madison Police Department to notify them of the potential danger to
the residents at the address given by Wheeler.

Radtke believes she spoke with

Sergeant Tim Radtke from the Madison Police Department at some point after they
were notified. (While Sgt. Radtke and Captain Radtke share the same last name, they
are not related.)
After Wheeler attempted to out an informant on the radio with an address,
Captain Radtke decided it was time to let him know they were aware of what he was
doing, and give him a conduct report. Wheeler’s use of a home address, and attempt to
6

announce that address to others as the location of an informant, was an escalation in
his behavior that created an unacceptable risk of harm to the community.
D. July 22, 2014 Interview
On July 22, 2014, Wheeler was escorted from his cell to a separate room to meet
with Captain Radtke and Officer Mierzejewski. Once he arrived in the room, Wheeler
was shown letters that he had written to his family. Captain Radtke told Wheeler that
staff had been reading his mail for the past few months and had photocopied it. Radtke
also told Wheeler that his effort to identify informants put people in danger. The parties
dispute most of the rest of what Radtke said to plaintiff at this meeting.
According to Wheeler, when he first sat down in the room, Captain Radtke told
him that she was aware he was searching for a “miracle affidavit.” Radtke said she
knew that Wheeler was looking for “Headbussers” or informants who weren’t genuine.
She allegedly said that she knew that Conduct Report 2303800 was false because
Wheeler had been the subject of an eradication plot by the Gangster Disciples, but it did
not give him the right to attempt to out those inmates who had worked with her. Radtke
asked Wheeler what it would take to stop his inquiries.

When Wheeler allegedly

refused to stop his inquiries, Captain Radtke called him a “nigger” and equated his
Islam religion to Al-Qaeda. Radtke allegedly offered Wheeler “immunity” if he would
stop doing what he was doing and just finish his time in the “hole.” She also allegedly
said that Wheeler could take the deal, or otherwise file an “ICI” (inmate complaint).
Radtke also allegedly told Wheeler that the “ICI” works for “them” and that as soon as
she was contacted she would write him up for “everything under the sun.”

7

According to Captain Radtke, Officer Mierzejewski and Radtke met with Wheeler
on July 22, 2014, to discuss his efforts to identify and threaten perceived informants.
During the meeting, they showed him letters they had photocopied, and Radtke told him
he would be receiving a conduct report for his actions. Mierzejewski and Radtke also
told him that he was wrong about the individuals he had identified as informants and
that his attempts to identify informants put people in danger. Wheeler remained largely
silent during the interview. At no time during the meeting did Officer Mierzejewski or
Radtke refer to Wheeler as “you black Muslims,” the n-word, Al-Qaeda, cancer, or any
derogatory term. At no time during the meeting did Officer Mierzejewski or Radtke
communicate to Wheeler that they: believed or knew he was innocent of the allegations
in Conduct Report 2303800; knew he turned down a position with the Gangster
Disciples and that is why he had a fight with “Killa [Alvin Tubbs];” or knew he was the
subject of an eradication plot by the Gangster Disciples. Radtke believes, based on all
the evidence, that Wheeler was properly found guilty of Conduct Report 2303800. At no
time during or after the July 22, 2014, meeting with Wheeler did Radtke offer him
“immunity” if he stopped doing what he was doing and “just finish” his “hole time.”
Radtke’s intention all along was to issue Wheeler a conduct report, which is why she
told him at that time he would be receiving one. Radtke told Wheeler that he would be
receiving a conduct report because his efforts to identify, threaten, and coerce
perceived informants jeopardized the safety of individuals within the prison system and
the community.

His attempts to identify, locate, and threaten perceived informants

created the possibility of physical and violent retaliation against individuals he identified
or who resided at locations he identified. At no time during the interview did they
8

discuss what would happen if Wheeler filed an inmate complaint about Radtke. Radtke
never told Wheeler that “ICI,” or the inmate complaint examiner, works for “us” and that
as soon as Radtke was contacted she would write him up for “everything under the
sun.”
E. Wheeler’s Inmate Complaints
On July 24, 2014, Wheeler submitted two offender complaints to the inmate
complaint examiner’s office at Waupun. Both of these complaints were returned to
Wheeler with directions to attempt informally resolve them with Waupun Security
Director Tony Meli.
In one of the offender complaints Wheeler submitted, he described the July 22,
2014, meeting with Radtke and Mierzejewski:
At 10:17 AM COII Passig came to my door, put a tether on it, and
opened my trap door, and said “Let’s go.” I repeated twice “Where?” He
said “You have an HSU” I stated “naw’ll.” His demeanor changed, and he
became belligerent. He said “you’re not going.” I again said “naw’ll”
meaning “No!” The trap continued to be open and he stood there looking
at me in an aggressive stance. He then said “Radtke” and I again said
“naw’ll.” At 10:27 AM Passig again came to my cell door and whispered
through the hole. He said “Radtke said if you don’t come out, you’ll be
receiving multiple conduct reports.” With that threat, I got up and got
dressed, and I beat on the wall to my next door neighbor (118) so that he
can witness what was going on. I put my hands out of the trap and
proceeded to get handcuffed. I was escorted to the property room where
staff conducts its private interviews. When Capt. Radtke saw me she and
“Gunrack” alias (real name unknown) got up and opened the door. She
stated “what made you come out?” I stated that “Passig said if I didn’t
come out I’d receive multiple conduct reports.” She said “you’re getting
them anyway.” When I sat down I noticed she had a manila folder with
photo-copies of all my correspondences. She started off her colloquy by
stating “you’ve been wrong,” “you’ve been wrong about everyone you
fingered as a confidential informant in your case.” “P-Dubb is not in KM,
that’s a fact – so your girl was wrong and Willie Steward is in Racine.” She
then stated: “You’ll be receiving a notice of non-delivery for this letter to
your brother, and I’m gonna write you up for everything under the sun.
9

Group resistance, threats, (inaudible).” That’s when COII Gunrack (real
name unknown) took over. “I don’t think you know how serious this is.
You’re putting people’s lives in danger. I mean all you had to do was sit
back and do your time but this has really sunk your ship. The people at
that address, they’ve never been to prison and they’re worried your letters
will put them in danger.” I stated “I believe Steward Earl Williams testifying
falsely against other inmates and being a headbusser is a matter of public
concern.” That was the end of the interview which I believe was meant to
intimidate and threaten me to stop my pursuit of the evidence I need to
prevail on my cases.

(Muenchow Decl., ¶ 10; Ex. 1003.) In the other inmate complaint Wheeler submitted on
July 24, 2014, he complained about Captain Radtke having photocopies of his outgoing
mail.
Prior to this lawsuit, Radtke had no knowledge of any offender complaints filed by
Wheeler through the Inmate Complaint Review System. Pursuant to Administrative
Code 310, offender complaints filed by inmates are considered confidential. At times,
the inmate complaint examiner may contact institution staff for information regarding the
inmate’s complaints, such as the Housing Unit Supervisor for information if the
complaint is about security staff on his unit. At no time was Radtke contacted by the
inmate complaint examiner regarding any complaints filed by Wheeler about the July
22, 2014, interview or actions taken by Radtke in the course of her investigation.
Prior to this lawsuit, Radtke had no knowledge of any complaints filed by
Wheeler arising out of the July 22, 2014 interview or actions taken by her in the course
of her investigation prior to issuing him Conduct Report 2481117.
F. Conduct Report 2481117
On August 8, 2014, Radtke wrote Wheeler Conduct Report 2481117 based on
his efforts to threaten confidential informants. Radtke charged him with violating Wis.
10

Admin. Code §§ DOC 303.20, Group Resistance and Petitions, 303.16, Threats, and
303.41, Counterfeiting and Forgery.
After the July 22, 2014, meeting with Wheeler, it took Radtke until August 8,
2014, to write Conduct Report 2481117 because she needed time to draft and compile
the conduct report, based on the extent of Wheeler’s actions. Radtke was motivated in
writing the conduct report by her duty to write such reports under Wis. Admin. Code
DOC 303.64 - DOC 303.66. Pursuant to these administrative rules, Captain Radtke
must write a conduct report when, on the basis of her observation and other information
she obtains, Radtke concludes that an inmate has violated one or more of the prison
disciplinary rules. Radtke alleges that she was not motivated in writing this conduct
report, in whole or in part, by an intention of retaliating against Wheeler for reporting
misconduct or in retaliation for any other action.
A disciplinary hearing was held on Conduct Report 2481117, pursuant to policy
and Wis. Admin. Code §§ DOC 303.65 and 303.78.

Wheeler was found guilty of

violations Wis. Admin. Code § DOC 303.16, Threats at the disciplinary hearing held on
August 28, 2014. Wheeler received a disposition of 180 days disciplinary separation.
Radtke did not personally participate in any decision concerning the disposition of
Conduct Report 2481117. Radtke had no authority over the hearing officers and/or
adjustment committees regarding the disposition of Conduct Report 2481117.
II. 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.
11

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 “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 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).
III. ANALYSIS
Wheeler contends that Radtke retaliated against him by issuing him Conduct
Report 2481117 after he filed inmate complaints alleging “staff misconduct” following
the July 22, 2014, interview. According to Wheeler, he has submitted evidence that he
would not have received a conduct report if he had not filed the inmate complaints,
citing to his declaration and to the declaration of fellow inmate Earnest Beamon. 4
4

Beamon avers that he heard Officer Mounghey “say something about Capt. Radtke
and that he (Wheeler) would have never received a conduct report if he (Wheeler)
12

Captain Radtke contends that no reasonable juror could believe Wheeler’s
testimony that she told him he would receive a conduct report if he filed an inmate
complaint. According to Radtke, the admissible evidence shows that she told Wheeler
at the July 22, 2014, interview that he would be receiving a conduct report for his
threatening letters. Radtke also contends that the admissible evidence shows that she
had no knowledge of Wheeler’s inmate complaints, so the conduct report could not
have been retaliatory. Radtke further contends that summary judgment is appropriate
because punishing Wheeler for his threatening letters served a legitimate correctional
goal.

Lastly, Radtke contends that the court should sanction Wheeler for his

misconduct.
At the summary judgment stage, Wheeler has the initial burden to make out a
prima facie case of retaliation by showing that: “(1) he engaged in activity protected by
the First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3)
the First Amendment activity was at least a motivating factor in the decision to impose
the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). If Wheeler
makes this prima facie showing, Radtke must show that the adverse action would have
occurred anyway. Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013); see also
Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (if inmate meets all three elements,
burden shifts to show that officers would have taken the same actions “even in the

hadn’t filed a complaint[.]” (Beamon Decl., ECF No. 130-1 at 49, Exh. 31.) However,
Beamon’s statement about what he heard Officer Mounghey say about Captain
Radtke’s motivation for issuing Wheeler a conduct report is inadmissible hearsay. See
Fed. R. Evid. 801, 802.
13

absence of protected conduct”). 5 If Radtke meets this burden, then Wheeler must show
that Radtke’s proffered reason was pretextual — in other words, a lie – and that the real
reason was retaliatory animus. Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).
The parties focus on Radtke’s motivation in issuing the conduct report. Radtke
contends that I should not consider Wheeler’s declaration to the extent that he avers
that Radtke said she would issue him a conduct report if he filed a grievance related to
the July 22, 2014, interview. According to Radtke, the declaration testimony Wheeler
cites in an effort to create a dispute should be disregarded because no reasonable juror
could believe it, citing Seshadri v. Kasraian, 130 F.3d 798, 801 (7th Cir. 1997). Radtke
explains that Wheeler’s declaration must be disregarded because it is contradicted by

5

Radtke contends that the Seventh Circuit recently found that defendants do not have
to show that the retaliatory act would have occurred anyway, as long as they can show
that it was supported by a legitimate correctional goal, citing Brown v. Phillips, 801 F.3d
849, 855 (7th Cir. 2015) (sex offender’s claim that detention facility’s policy prohibiting
game consoles was retaliatory failed because policy was supported by legitimate
reasons and therefore it was irrelevant that facility may have had a retaliatory motive for
enacting it) (citing Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (prisoner’s
retaliation claims fails where action taken serves legitimate correctional goal). On initial
review, Brown does seem inconsistent with Mays and Greene as to a defendant’s
burden in a retaliation claim. However, I am not convinced that Brown meant to change
that standard because Brown’s brief discussion of the retaliation claim – which is limited
to the last paragraph of the opinion – focuses on the fact that the court had already
determined that the policy served a legitimate correctional goal, under the standard set
forth in Turner v. Safley, 482 U.S. 78 (1987). Brown is therefore distinguishable from
this case because in this case a prison policy that has already been determined to be
legitimate under Turner is not at issue. In addition, Brown does not mention changing
the well-established standard. Cf. Mays, 719 F.3d at 634 (noting that the burden of
proof related to causation in First Amendment tort cases remains controlled by Mt.
Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), and wondering how the state could
have overlooked the Greene case where the court stated that the defendant can rebut,
but only by showing that his conduct was not a necessary condition of the harm – the
harm would have occurred anyway).
14

his prior statements in his inmate complaint, in which he repeatedly said that Captain
Radtke told him on July 22, 2014, that he was receiving a conduct report.
“[T]estimony can and should be rejected without a trial if, in the circumstances,
no reasonable person would believe it.” Seshadri, 130 F.3d at 802 (citations omitted).
In Seshadri, the court rejected Seshadri’s testimony, provided in an affidavit in
opposition to a motion for summary judgment, that he was the sole author of an article
and that Kasraian was not a joint author, where, prior to litigation, Seshadri had made a
number of statements acknowledging that the article was not a joint work. Id. at 802-03.
While noting that some of the statements in Seshadri’s affidavit were farfetched, the
court was mostly troubled with the fact that Seshadri had not tried to explain in his
affidavit the many prior written statements he had made acknowledging Kasraian as a
joint author. Id. at 804 (“a party might be able to explain away his prior inconsistent
statements[,] [b]ut here we note the corollary: if he makes no attempt at explanation, he
is stuck with those statements”).
In this case, in the inmate complaint that Wheeler filed on July 24, 2014, he
provided a detailed description of the July 22, 2014, interview. Wheeler stated that
during the interview Radtke twice told him that he would be receiving conduct reports for
his activities of trying to identify the confidential informants. He stated that the conduct
report charges would include Group Resistance and Threats. Wheeler also stated that
he believed the purpose of the interview was to intimidate and threaten him to stop his
pursuit of the evidence he needed to proceed on his cases.

15

In contrast to Wheeler’s inmate complaint, at summary judgment he denies that
Radtke told him during the interview that he would be receiving a conduct report for his
actions. In his declaration, Wheeler avers that during the interview Radtke offered him
immunity for his letter-writing activities if he stopped doing it and instead just finished
serving his segregation time. He also avers that Radtke told him he could either take the
deal or file an inmate complaint and that if he filed an inmate complaint, she would issue
him a conduct report as soon as she was contacted. Wheeler does not explain the
inconsistencies between his inmate complaint and his declaration, and Radtke urges
me to deem his declaration inadmissible under Seshadri.
I cannot think of a reasonable explanation for the inconsistencies, other than the
possibility that Wheeler is lying in his declaration about what occurred at the meeting in
order to advance his retaliation claim against Radtke. And while Seshadri directs a
district court to reject testimony without trial if under the circumstances no reasonable
person would believe it, I am mindful that “credibility issues are to be left to the trier of
fact to resolve on the basis of oral testimony except in extreme cases.” In re Chavin,
150 F.3d 726, 728 (7th Cir. 1998) (emphasis in original).
The exceptional category is – exceptional. For the case to be classified as
extreme, the testimony sought to be withheld from the trier of fact must be
not just implausible, but utterly implausible in light of all relevant
circumstances.
Id.
In this case, I need not determine whether to decide this factual issue myself
(due to unreasonableness) or send it to the jury because the case is subject to
dismissal on another basis.

In short, it is undisputed that Radtke didn’t know that
16

Wheeler filed the inmate complaints on July 24, 2014.

Wheeler did not submit

admissible evidence to dispute this fact and it is therefore undisputed.
Even if Radtke had known that Wheeler submitted the inmate complaints, Radtke
has submitted proof (aside from what she allegedly said during the July 22, 2014,
interview) that she would have disciplined him anyway for a legitimate reason.
Specifically, when Radtke began investigating Wheeler in April 2014 after learning that
he was trying to identify the confidential informants who gave statements against him for
Conduct Report 2303800, she decided the best course of action at that time was to
monitor his mail to learn more, instead of taking immediate action. Once Wheeler’s
activities reached the point of trying to out an individual on the radio using a home
address, Radtke decided it was time to stop Wheeler and give him a conduct report for
his actions. After discussing Wheeler’s behavior with him on July 22, 2014, Radtke
issued him the conduct report on August 8, 2014. Wisconsin’s administrative rules
mandated that Radtke issue Wheeler a conduct report for his behavior.

The court

concludes that on this record, even if Radtke had known that Wheeler submitted two
inmate complaints regarding the July 22, 2014, interview, she would have issued him a
conduct report based on his repeated rule violations and her mandate to do so. A
reasonable factfinder could not conclude that Radtke retaliated against Wheeler.
Therefore, I will grant Radtke’s motion for summary judgment and deny Wheeler’s
motion for summary judgment.
Lastly, Radtke requests that the court levy monetary sanctions against Wheeler
and issue him a “strike” for willfully abusing the judicial process and conducting this
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litigation in bad faith by submitted fabricated testimony. However, I have not concluded
that Wheeler submitted fabricated testimony. Even if I had, Wheeler is proceeding in
forma pauperis so a monetary sanction is impractical. Moreover, the in forma pauperis
statute does not provide for imposition of a “strike” for the submission of fabricated
testimony. See 28 U.S.C. § 1915(g). Therefore, I will not sanction Wheeler.
IV. CONCLUSION
For the reasons stated, IT IS ORDERED that the plaintiff’s motion for summary
judgment (ECF No. 128) is DENIED.
IT IS FURTHER ORDERED that the defendant’s motion for summary judgment
(ECF No. 133) is GRANTED.
Dated at Milwaukee, Wisconsin, this 10th day of February, 2017.

s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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