Garner v. Muenchow et al

Filing 30

ORDER signed by Judge Rudolph T. Randa on 2/24/2016 DENYING 17 Defendants' Motion to Dismiss. (cc: all counsel, via mail to Oscar Garner at Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OSCAR GARNER,
Plaintiff,
-vs-

Case No. 15-CV-777

JAMES MUENCHOW,
DONALD STRAHOTA,
MR. GREFF,
LT. SCHNEIDER,
LT. WALLER, and
FRANCIS PALIEKARA,
Defendants.

DECISION AND ORDER
Oscar Garner, a Wisconsin state prisoner, filed an action under 42
U.S.C. § 1983, alleging that his First and Fourteenth Amendment rights
were violated when he could not order prayer items while confined in
disciplinary segregation. On September 30, 2015, the defendants filed a
motion to dismiss for failure to allege personal involvement of Muenchow,
Strahota, Greff, Schneider, and Paliekara.

The plaintiff responded on

October 15, 2015 (ECF No. 25), and the defendants replied on October 30,
2015 (ECF No. 28). For the reasons stated below, the Court will deny the
defendants’ motion.

I. Complaint Allegations
The plaintiff, Oscar Garner, is an inmate at the

Waupun

Correctional Institution. Between November 2012 and March 2013, he was
confined in B-range, i.e. disciplinary segregation, and had requested a copy
of the prison’s canteen catalog to order several religious items.1

His

request for a copy of the catalog was denied.
On November 27, 2012, the plaintiff wrote to Unit Manager Brian
Greff stating that he was not allowed to order prayer items from the
canteen catalog. Greff responded that he had not received anything from
the plaintiff.

On January 13, 2013, the plaintiff wrote to Greff again

requesting to order prayer items from the canteen catalog. Greff responded
in writing that the plaintiff should contact a Sergeant or Lieutenant to
place his order. The next day, on January 14, 2013, Greff spoke with the
plaintiff in person and told him that he would have to talk to Lieutenant
Waller to order out of the catalog.
Later that day, on January 14, 2013, the plaintiff wrote a request to
Lieutenant Waller and Lieutenant Schneider.

Neither responded.

The

next day, on January 15, 2013, Waller spoke with the plaintiff in person.

1

The items he sought included a Qur’an, prayer oil, prayer beads, a prayer rug, a Kufi cap, and paper
and envelopes).

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Waller told the plaintiff that “you can’t order until you go to range-C and if
you don’t like it write a[n] [offender complaint].”
On February 4, 2013, the plaintiff wrote to Chaplain Francis
Paliekara requesting a copy of the Qur’an.

His letter indicated that

segregation denied him the right to order his religious items. On February
9, 2013, Paliekara spoke with the plaintiff in person and told him that he
should be able to order his religious items but that it would have to be
through the Segregation Sergeant or the Unit Manager.
The plaintiff then filed an inmate complaint regarding his right to
order prayer items while in B-range.

James Muenchow, the Inmate

Complaint Examiner, dismissed the complaint. He wrote that “allowing
orders from the canteen catalog vendors would be an influx of property that
would exhaust staff resources…” and that prison security and facility
resources were reasonable restrictions on the right to practice religion in
disciplinary segregation. Donald Strahota accepted the recommendation
and dismissed the complaint on March 1, 2013.
On March 12, 2013, a different inmate in disciplinary segregation
filed an inmate complaint regarding Muslim prayer items in B-range. The
complaint was rejected as moot because Greff had since compiled a
“Segregation Catalog” from which segregation inmates could order
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religious items.

The Segregation Catalog was handed out the week of

March 18, 2013.
II. Standard of Review
A motion to dismiss tests the legal sufficiency of the complaint. Triad
Assocs., Inc. v. Chi. Hous. Auth. 892 F.2d 583, 586 (7th Cir. 1989). The
complaint must allege enough facts that, when accepted as true, “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A claim is plausible on its face 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 (2009).
The Court accepts all well-pleaded factual allegations as true and
draws all reasonable inference in favor of the non-moving party. Lee v.
City of Chi., 330 F.3d 456, 459 (7th Cir. 2003). A motion to dismiss is
granted when “it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.”
Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).
III.

Discussion

The defendants seek to remove Muenchow and Strahota from the
action because both are complaint examiners who were not “personally
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involved” in the underlying constitutional violation. The defendants seek
to remove Greff, Schneider, and Paliekara from the action because each
individual’s personal involvement in the matter was limited to “directing”
the plaintiff to the prison official responsible for ordering religious items.
To state a §1983 civil rights claim, the petitioner must allege that: (1)
he was deprived of a right secured by the Constitution or laws of the
United States; and (2) the deprivation was visited upon him by a person or
persons acting under the color of state law. Buchanan-Moore v. County of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of
North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004).
Liability under the statute is based on a defendant's personal
involvement in the constitutional violation. See Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). “A causal connection, or an affirmative link,
between the misconduct complained of and the official sued is necessary.”
Wolf–Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). A government
employee is responsible for his or her own misdeeds but not for anyone
else’s. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009).
A prison official who knew about a constitutional violation, and had
the ability to intervene, but failed to do so may be personally involved in
the constitutional violation. Fillmore v. Page, 358 F.3d 496, 505–06 (7th
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Cir. 2004).

Indeed, an official who facilitates, approves, condones, or

“turn[s] a blind eye” to a constitutional violation is liable under §1983. See
Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996) (quoting Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). The plaintiff must allege
that the official knew of or suspected the specific risk facing the plaintiff
and “consciously ignored it or failed to stop the abuse once it was
discovered.” J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir.
2003).
An inmate's correspondence to a prison official, for example, can
establish knowledge sufficient to impose liability under § 1983. Vance, 97
F.3d at 992–93. Once an official is provided with sufficient knowledge of a
constitutional

deprivation

through

a

correspondence,

“refusal

or

declination to exercise the authority of his or her office may reflect
deliberate disregard.” Id.

Similarly, a complaint examiner who shows

deliberate disregard toward his or her appointed tasks, i.e. refuses to do
their job or routinely sends grievances to the shredder without reading
them, is also liable under the statute. Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009).
In any event, “public officials do not have a free-floating obligation
to put things to rights, disregarding rules…along the way.” Id. at 595.
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“Bureaucracies divide tasks” and “no prisoner is entitled to insist that one
employee do another’s job.” Id.

Therefore, §1983 does not allow for

liability on a theory of respondeat superior, or vicarious liability. Monell
v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978).
The plaintiff sufficiently alleged a §1983 claim against complaint
examiners Muenchow and Strahota.

He alleged that Muenchow and

Strahota “attempted to cover up” a violation of the “SEG Handbook,”
§ DAI 309.61.01, and prison policy by dismissing his complaint.

He

asserted that Muenchow and Strahota ignored a prison rule for the
purpose of aiding prison colleagues, and in doing so, essentially refused to
do their job.

Therefore, the plaintiff sufficiently alleged personal

involvement of both Muenchow and Strahota.
The plaintiff also sufficiently alleged a §1983 claim against Greff and
Paliekara.

The plaintiff alleged that he contacted Greff at least three

times regarding his religious items.

He alleged that he contacted

Paliekara at least twice. Each time he was “directed” to another prison
official. Although prisons may divide tasks for administrative efficiency,
officials may not “turn a blind eye” to a known constitutional violation.
Greff and Paliekara both incidentally agreed that the plaintiff was
entitled to the religious items he requested yet both failed to intervene.
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Therefore, the plaintiff alleged personal involvement of both Greff and
Paliekara.
The plaintiff alleged that Schneider is vicariously liable due in large
part to his position as a lieutenant in disciplinary segregation.

The

plaintiff asserted that Schneider was “in charge of segregation security”
and “had an opportunity to enforce [W]aller to give me the catalogs…”
However, the plaintiff also alleged that he wrote to Schneider, and
Schneider ignored his letter. Although the defendants aptly note that the
plaintiff does not detail the content of the letter to Schneider, the Court
can reasonably infer that his letter related to the denial of prayer items
because the entirety of plaintiff’s complaint discusses only the denial of
prayer items. Therefore, the plaintiff alleged a §1983 violation against
Schneider.
ORDER
IT IS THEREFORE ORDERED THAT the defendants’ motion to
dismiss (ECF No. 17) is DENIED.
Dated at Milwaukee, Wisconsin, this 24th day of February, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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