Antepenko v. Litscher et al

Filing 39

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 2/1/2018. 24 Defendants' MOTION for summary judgment GRANTED. 34 Plaintiff's MOTION to supplement, MOTION to disclose electronically stored information, MOTION to amend/correct comp laint, MOTION for extension of time, MOTION for reconsideration DENIED. 35 Plaintiff's MOTION for temporary restraining order, MOTION for preliminary injunction DENIED. (cc: all counsel, via mail to William Antepenko at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
WILLIAM T. ANTEPENKO, JR.,
Plaintiff,
v.

Case No. 16-cv-1233-pp

JUDY SMITH, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 24), DENYING THE
PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD, MOTION TO
DISCLOSE ELECTRONICALLY STORED INFORMATION, MOTION TO
AMEND/CORRECT THE COMPLAINT, MOTION FOR EXTENSION
OF TIME, MOTION FOR RECONSIDERATION (DKT. NO. 34),
DENYING THE PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION (DKT. NO. 35) AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983, alleging that the defendants violated his constitutional rights.
Dkt. No. 1. On January 10, 2017, the court allowed the plaintiff to proceed on
his claim that defendants Judy Smith, Kristine Zanon and Joseph Brooks
denied him the opportunity to have in-person visits or telephone calls with his
minor son. Dkt. No. 12. On August 7, 2017, the defendants filed their motion
for summary judgment. Dkt. No. 24. That motion is fully briefed.
On September 19, 2017, the plaintiff filed a motion to supplement the
record, a motion to disclose electronically stored information, a motion to
amend or correct the complaint, a motion for an extension of time, a motion for
1

reconsideration, and a motion for a temporary restraining order or preliminary
injunction. Dkt. Nos. 34, 35.
The court will grant the defendants’ motion for summary judgment, deny
the plaintiff’s motions and dismiss the case.
I.

RELEVANT FACTS1
A. Parties
The plaintiff has been incarcerated almost exclusively at Oshkosh

Correctional Institution since September 8, 2015 (he spent a little more than a
month at two other facilities). Dkt. No. 26 at ¶1. In 2008, he was convicted of
sex with a child sixteen or over. Id. at ¶5. He was sentenced to thirty days in
the county jail and one year of probation; he was not required to register as a
sex offender, nor was he required to undergo any sex offender treatment in
connection with this conviction. Dkt. No. 31 at 12.
In March 2014, the plaintiff was convicted of child enticement-sexual
contact. Dkt. No. 26 at ¶6; Dkt. No. 27-1 at 1. The victims of his 2014 crimes
were his two minor daughters. Dkt. No. 26 at ¶7. The plaintiff clarifies that he
was convicted only of child enticement, not sexual assault. Dkt. No. 31 at 11.

The court takes the relevant facts from Defendants’ Proposed Findings of
Fact. Dkt. No. 26. The court takes additional facts from plaintiff’s sworn
Memorandum in Opposition of Defendants[’] Motion for Summary Judgement
and his sworn complaint. Dkt. Nos. 31, 1. See Ford v. Wilson, 90 F.3d 245,
246-47 (7th Cir. 1996) (instructing district courts to construe sworn
complaints as an affidavit at the summary judgment stage).
1

2

He also explains that he entered an Alford plea;2 he did not admit any guilt,
but acknowledged that the state had enough evidence to find him guilty. Dkt.
No. 1 at 4; Dkt. No. 31 at 11. The plaintiff continues to maintain that he is
innocent of those crimes. Dkt. No. 31 at 1.
The defendants are employees of the Wisconsin Department of
Corrections: Dr. Kristine Zanon is a psychologist supervisor at Oshkosh, Judy
Smith is the warden at Oshkosh and Joseph Brooks is a probation and parole
agent. Dkt. No. 26, ¶¶2-4.
B. Initial Assessment and Treatment Decisions
At admission to the Department of Corrections, all inmates whose
histories include a sexual assault conviction, commitment, or offense that
includes “behaviors that were sexually motivated or deviant are given an initial
intake assessment to determine sex offender problem areas and
appropriateness for treatment programs.” Id. at ¶9. The assessment includes a
review of the inmate’s file and a clinical interview of the inmate to determine
the inmate’s “amenability for treatment and other programming needs.” Id. at
¶10. There are different kinds of sex offender treatment programs (SOTP), but

In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court held that
“[a]n individual accused of a crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is
unwilling or unable to admit his participation in the acts constituting the
crime.” Id. at 37. These sorts of pleas—in which the defendant agrees to be
sentenced, but does not admit guilt—are known as Alford pleas.
3
2

they all have one major goal: “to reduce the inmate’s risk of sexual reoffending.” Id. at ¶11.
When an inmate transfers to an institution, staff place him on a waiting
list for each program need that was identified in his initial assessment. Id. at
¶12. Staff consider release dates, endorsements from the parole commission,
and prior program participation in deciding when it is appropriate to begin
treatment. Id. at ¶13. In general, inmates closest to their release dates receive
higher priority for placement in SOTP. Id. at ¶13. This is because the skills and
techniques inmates learn in treatment will be more effective in reducing
recidivism when they are fresh in an inmate’s memory. Id.
A requirement for participation in SOTP is an inmate’s willingness “to
explore the thoughts, feelings, and behaviors that led up to the offense.” Id. at
¶14. SOTP helps inmates “examine and identify the risky thoughts and
behaviors that are directly related to their offending.” Id. at ¶15. Once the
inmate identifies those thoughts and behaviors, SOTP works to “implement
new pro-social coping techniques and problem solving strategies to manage
their risks, thereby decreasing their risk to re-offend.” Id.
While an inmate does not have to admit guilt for the exact sexual
assaultive behaviors charged in the criminal complaint, he does have to “admit
generally to his sexual assaultive behaviors” before he will be admitted into
SOTP. Id. at ¶16.

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OCI staff identified the plaintiff’s sex offender program need as SO-4,
which is a “two year, intensive residential treatment program that addresses an
inmate’s sexually deviant behaviors.” Id. at ¶¶17-18. Inmates suggested for the
SO-4 program are those who have been identified as having “a high risk for
sexual re-offending and high treatment needs.” Id. at ¶18. The program
requires a minimum of 400 hours. Id.
The plaintiff’s adjusted release date is May 2021. Id. at ¶20. Given the
waiting list for SOTP, it may be a year or so before the plaintiff can be placed in
SOTP. Id. This is because inmates with earlier release dates than the plaintiff’s
will be placed into SOTP before him. Id. In addition, the plaintiff may not be
allowed to participate in SOTP while he is incarcerated “if he cannot admit to
his sexually offending behaviors.” Id. at ¶21. Zanon explains that a treatment
provider cannot treat the plaintiff “for something he has not accepted.” Id.
C. Visitation Policy
The institution considers an inmate’s criminal history, victim profile and
SOTP status when deciding whether to approve or deny a visitation request. Id.
at ¶22. “When an inmate’s history and convictions suggest a possible deviant
attraction to children, especially prepubescent children, the institution will
usually deny the opportunity for potential visitors that may be similar to the
victim profile.” Id. When an inmate is enrolled in SOTP, the institution may reevaluate the visitation request. Id.

5

DAI Policy 309.06.01 lays out the procedure for making a visitation
request, and the visitation guidelines. Id. at ¶24. An inmate’s social worker
reviews the application; the social worker may approve the request if there is
no reason to deny it, and may add a visitor to the visitor’s list. Id. at ¶25. If the
social worker needs clarification on a visitor request, he or she may seek a
recommendation for the inmate’s “DCC agent and/or the psychologist
supervisor.” Id. at ¶26.
When a psychologist supervisor receives a request for visitation from an
inmate with a sex offender treatment need, he or she takes into consideration
“various factors, including the details of the offense, the inmate’s general
offense history/pattern of offending, victim profiles, treatment needs,
characteristics of the proposed visitor, the inmate’s amenability for treatment,
potential benefit or harm to the proposed visitor and the inmate, and the
potential victimization of the proposed visitor.” Id. at ¶27. There is no blanket
rule prohibiting minors from visiting with an inmate convicted of a sexuallyrelated offense; “[e]ach inmate and visitor request is reviewed and decided
individually. Id. at ¶33. If an inmate has unmet treatment needs, however, the
defendants assert that “it is generally in the best interests of the inmate and
the visitor if the inmate has completed sex offender treatment, as
recommended by their treating provider.” Id. at ¶34.
If the social worker seeks clarification from the psychologist supervisor,
the psychologist supervisor takes into account the same factors considered by
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the social worker.” Id. at ¶27. She “then recommends approval or denial and
submits [the request] back to the social worker. Id. If the psychologist
supervisor recommends denying the request, the request is forwarded to the
unit manager, who discusses the recommendation with the social worker. Id. at
¶28-29. The unit manager “is responsible for all denials of visitation requests
for inmates on their housing unit.” Id. at ¶30.
If the unit manager denies a visitation request, staff completes a visitor
denial form and forwards it to the proposed visitor and the inmate. Id. at ¶31.
Denials may be based on various criteria listed in Wis. Admin. Code §DOC
309.08(4), including that the warden has reasonable grounds to believe the
inmate’s offense history indicates there may be a problem with the proposed
visitation, and/or that the warden has reasonable grounds to believe that the
proposed visitor may be subjected to victimization. Id.
D. The Plaintiff’s Visitation Request
In September 2015, the plaintiff’s minor son submitted a visitor request
to visit the plaintiff. Id. at ¶35. The following month, the plaintiff’s social
worker (who is not a defendant) contacted Brooks, the plaintiff’s probation
agent, asking for his recommendation on the visitation request. Id. at ¶36.
(Brooks is no longer the plaintiff’s probation agent. Id. at 38.) Brooks
recommended denying the request. Id. at ¶39. Brooks believed that, based on
the plaintiff’s criminal history, the plaintiff first should complete SOTP before

7

being allowed to visit with any minor, regardless of the plaintiff’s relation to the
child and regardless of the gender of the child. Id. at ¶39.
The plaintiff’s social worker then sent Zanon, the plaintiff’s psychologist,
the visitation request. Id. at ¶44. Zanon recommended that the request be
denied based on the plaintiff’s offense history, his victim profile, the minor
son’s age, the plaintiff’s unmet treatment needs and his lack of amenability to
treatment. Id. at ¶45. Zanon believed that the plaintiff could subject his minor
son to victimization during a visit. Id.
After reviewing the recommendations from Zanon and Brooks, the
plaintiff’s social worker also recommended the visitation request be denied. Id.
at ¶48-49. The social worker supported her recommendation by citing the
plaintiff’s most recent offenses of child enticement-sexual contact, in which his
two minor daughters were the victims. Id. at ¶49. The social worker also noted
that the plaintiff had not admitted guilt for the offenses, and was in the process
of appealing the conviction and sentence. Id. The social worker forwarded her
recommendation to the unit manager (who is not a defendant). Id. at ¶47.
The unit manager agreed with the social worker’s recommendation, and
on October 27, 2015, denied the request. Id. at ¶50. The unit manager believed
that: (1) the institution “had reasonable grounds to believe that [the plaintiff’s]
offense history involving his minor daughters could indicate a problem with
having visitation with his minor son;” (2) the institution “had reasonable
grounds to believe that the proposed visitor could be subjected to victimization
8

should he be allowed visitation;” and (3) the institution “had reasonable
grounds to believe that [the plaintiff’s] reintegration into the community or
rehabilitation would be hindered if this visitor were approved.” Id. at ¶51-53.
About a week after receiving the unit manager’s denial, the plaintiff
submitted an offender complaint about the denial. Id. at ¶61. Warden Smith
dismissed the complaint. Id. at ¶62. There is no record that anyone ever
submitted a new application for the minor son to visit. Id. at ¶57.
Because the plaintiff’s minor son is not on the plaintiff’s approved
visitors list, the plaintiff is not permitted to call him on the telephone. Id. at
¶55. The plaintiff is permitted to have unlimited contact with his minor son
through written correspondence. Id. at ¶56. Institution staff does not monitor
outgoing mail. Id.
II.

DISCUSSION
A. 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.” Anderson, 477 U.S. at 248. A dispute

9

over a “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).
B. The Court’s Analysis
The plaintiff argues that Smith, Zanon and Brooks have violated his
constitutional rights by prohibiting him from having in-person visits with his
minor son. According to the plaintiff, they are requiring him to enter SOTP
before they will allow his son to visit, but because of general policies or
practices, he will not be considered for SOTP until he is nearing the final two
years of his sentence. The plaintiff also alleges that Zanon requires that he
admit guilt for the crimes for which he was convicted in order to participate in
SOTP, despite the fact that the plaintiff’s conviction resulted from an Alford
10

plea and he continues to maintain his innocence in connection with those
crimes. The plaintiff asserts that the defendants have imposed requirements
that he cannot satisfy, effectively making it impossible for him ever to visit with
his minor son.
The plaintiff has an important interest in maintaining a relationship with
his minor son. Stojanovic v. Humphreys, 309 Fed. App’x. 48, 50 (7th Cir. 2009)
(citing Hodgson v. Minnesota, 497 U.S. 417, 484 (1990)). But correctional
institutions are well within their rights to deny prison access to particular
visitors. Id. (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 461 (1989)).
“Accordingly, when balancing the interest in maintaining family relations with
the reduction in liberty required by confinement, the Constitution allows prison
officials to impose reasonable restrictions upon visitation, even visitation with
family members.” Id.
The U.S. Supreme Court has explained that “[a] prison policy that
restricts a prisoner’s constitutional rights is valid if it is rationally related to
legitimate penological interests.” Stojanovic, 309 Fed. App’x. at 51 (citing
Overton v. Bazetta, 539 U.S. 126, 132 (2003); Turner v. Safley, 482 U.S. 78,
89-91 (1987)). Courts are to consider: “(1) whether a rational connection exists
between the policy and the legitimate interest advanced to justify it; (2) whether
alternative means of exercising the right are available notwithstanding the
policy; (3) the impact that accommodating the right will have on prison

11

resources; and (4) the absence of alternatives to the policy.” Id. (citing Overton,
539 U.S. at 132; Turner, 482 U.S. at 89-91).
Here, the plaintiff does not argue that he has a constitutional right to be
enrolled in SOTP3, nor does he argue that he should not be required to enroll in
SOTP. Instead, the plaintiff argues that two policies prevent him from
immediate enrollment in SOTP. He argues that the defendants are requiring
him to participate in SOTP before they will recommend that he be allowed to
visit with his minor son, but are blocking him from participating any time soon.
The first policy the plaintiff identifies is the policy providing that inmates who
are closer to the end of their sentences will be given priority in SOTP
enrollment. The second policy is the policy providing that, before being
considered for SOTP, inmates must admit guilt for the underlying deviant
behaviors associated with the crimes of which they were convicted. The court
will consider each policy in light of the four factors Stojanovic factors.
1.

Enrollment Priority

Zanon explains that, because of limited resources, there are a limited
number of sex offender groups running at any particular time. Generally,

Nor could he make such an argument. In Richmond v. Cagle, the court held
that, “[t]o the extent that the plaintiff is arguing that the State of Wisconsin
created an entitlement to programs for sex offenders, . . . liberty interests
created by a state are ‘generally limited to freedom from restraint which . . .
impose atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” Richmond v. Cagle, 920 F. Supp. 955, 958
(E.D. Wis. 1996) (quoting Sandin v. Conner, 515 U.S. 472 (1995)).
12
3

inmates who are closest to their release dates are given a higher priority to gain
entry, under the theory that the skills and coping mechanisms participants
learn will be more effective when they are fresh in the participant’s mind.
The policy of giving enrollment priority to inmates who are closest to
their release dates satisfies the rational connection prong of the test. Reducing
recidivism is a legitimate penological interest, and providing treatment to
inmates close to their release date so that they will better remember what they
learned once they are out rationally supports that interest.
As to the second prong, the defendants explain that the plaintiff has an
alternative way to maintain his relationship with his son: he can communicate
with him through letters. The plaintiff argues that he also should be allowed to
speak on the phone with his son, which he argues is better way of maintaining
a relationship. However, alternatives “need not be ideal . . . they need only be
available.” Overton, 539 U.S. at 135. “Prison officials are simply not required,
as a matter of constitutional law, to provide [an inmate] with the ‘best method’
of raising his son.” Wirsching v. Colorado, 360 F.3d 1191, 1200-01 (9th Cir.
2004). The fact that the plaintiff is able to maintain contact with his son
through means other than visitation supports the reasonableness of the policy.
The third prong considers the impact on prison resources of
accommodating the plaintiff’s right. In the plaintiff, the prison has an
individual convicted of committing sex offenses that victimized two of his minor
children. He has not received treatment, or admitted that he has any sexually
13

assaultive tendencies, even as a general proposition. While the plaintiff has a
right to maintain his innocence, the prison must assess the risk of allowing
him contact with another of his minor children under the prison’s watch, and
under these circumstances. To grant the request could expose the prison to
liability. It likely would require the prison to assign limited staff to monitor
such visits. Even if it were the court’s role to dictate administrative policy to
the prison (which it is not), requiring the prison to enroll the plaintiff in SOTP
now, or to change its policy to allow placement for sex offenders earlier in their
incarceration terms, would increase the strain on already-strained resources.
And it would defeat the reasonable goal of equipping inmates with tools and
coping mechanisms during the time they need it most—just before they are to
be released into the community.
The final prong considers whether there are any easily implemented
alternatives to the policy. The court does not see any, for the reasons discussed
in the previous paragraph.
The policy of prioritizing inmates who are closest to their release dates
for enrollment in SOTP is constitutionally valid, because it is rationally related
to legitimate penological interests.
2.

Admission of Guilt

Zanon explains that, in order to participate in SOTP, an inmate needs to
be willing to explore the thoughts, feelings and behaviors that caused the
inmate to commit the offense of conviction. SOTP helps inmates look at the
14

reasons for what they did. Once they identify those reasons, inmates can then
work on coping techniques and problem solving strategies to manage their
risks, decreasing the risk of reoffending. Like many people struggling to
conquer self-destructive or destructive behaviors, a sex offender can’t learn to
control behaviors and actions that he doesn’t admit he engages in. Zanon
clarified that, while an inmate does not have to admit guilt for the specific
sexually assaultive behaviors stated in the criminal complaint in order to
participate in SOTP, the inmate does have to admit generally to his sexual
assaultive behaviors.
Again, there is a rational connection between this policy and a legitimate
penological interest. The prison has an interest in trying to rehabilitate
inmates, so that they will not re-engage in sexual assaultive behaviors after
they are released. Zanon explained that she cannot effectively treat an inmate
who refuses to acknowledge that he is at risk for committing sexual assaultive
behaviors. Requiring inmates to acknowledge that they are at such risk before
they are enrolled in SOTP furthers the institution’s interest in rehabilitation.
See Doe v. Heil, 533 Fed. App’x. 831, 840 (10th Cir. 2013) (“The state’s interest
in rehabilitating sex offenders is a valid one, and the requirement for admission
of responsibility is considered a legitimate part of the rehabilitative process.”).
As to the second prong, the court agrees that there is an alternative for
the plaintiff to use in maintaining a relationship with his son—letters. As to the
third prong, based on Zanon’s assertion that it is largely ineffective to provide
15

treatment to an inmate who refuses to acknowledge he needs that treatment,
requiring the prison to provide treatment to inmates who refuse to admit that
they need it would further strain already limited resources.
Finally, there are no feasible alternatives to the policy. The plaintiff
argues that, though he maintains his innocence, he is willing to receive
treatment. He argues that his willingness to participate whether he needs the
treatment or not should be sufficient to qualify him for enrollment in SOTP.
But there is no point in a prison spending limited time and resources providing
treatment that, accordingly to Zanon, will be largely ineffective, particularly
when it would force the institution to provide unwanted treatment to one
inmate at the expense of another who may acknowledge the need for it and
choose to participate.
The policy requiring inmates to acknowledge guilt for sexually assaultive
behaviors before enrolling them in SOTP is constitutionally valid, because of its
reasonable relationship to legitimate penological interests.
Because the two policies that the plaintiff challenges are constitutionally
permissible, the court will grant the defendants’ motion for summary
judgment.4

The defendants asked that, if the court denied summary judgment on the
basis of the plaintiff’s constitutional claim, it should grant summary judgment
because they are entitled to qualified immunity. Dkt. No. 25 at 9. The court
need not reach this issue.
16
4

III.

THE PLAINTIFF’S MOTION TO SUPPLEMENT THE RECORD, MOTION
TO DISCLOSE ELECTRONICALLY STORED INFORMATION, MOTION
TO AMEND/CORRECT THE COMPLAINT, MOTION FOR EXTENSION
OF TIME, MOTION FOR RECONSIDERATION, AND MOTION FOR
TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION
On October 19, 2017, less than two weeks after the defendants’ motion

for summary judgment was fully briefed, the court received two documents
from the plaintiff. The first one contained a petition to supplement the record,
to disclose electronically stored information, to amend the complaint to add
four new defendants, to extend time to “correctly answer” the summary
judgment motion, and to reconsider his prior request for appointment of
counsel. Dkt. No. 34. The second was a petition for a temporary restraining
order and preliminary injunction. Dkt. No. 35. Both of these motions appear to
have been prompted by the plaintiff’s annual Program Review Committee
hearing, which took place on September 13, 2017. Dkt. No. 34 at 2.
In connection with the first motion, the plaintiff says that he went to the
PRC meeting because he’d talked with his social worker about getting
transferred to another institution, because of a conflict of interest with Zanon.
Dkt. No. 34 at 2-3. (The conflict he identifies is that Zanon has permanently
barred him from SOTP, because he will not admit his guilt. Id. at 3.) He asserts
that the members of the PRC denied his transfer request, effectively barring
him from obtaining SOTP at any other facility. Id.
Regarding the motion for injunctive relief, the plaintiff alleges that his
cell was searched on September 16, 2017, and that he was sanctioned for
17

having a “red cleaning rag” in the cell. Dkt. No. 35 at 2. He claims that all the
other units allow inmates to have cleaning rags in their cells, and that the
sanction was imposed as a result of retaliation by Zanon. Id.
The court will deny the plaintiff’s motions. The first motion seeks to
amend the complaint to name the four people in the PRC meeting as
defendants. Dkt. No. 34 at 5. The September 2017 denial of the plaintiff’s
transfer request does not arise out of the same transaction or occurrence that
resulted in the plaintiff being denied visitation with his minor son, nor do they
involve the same defendants. Under Federal Rule of Civil Procedure 18(a),
“[u]nrelated claims against different defendants belong in different suits” so as
to prevent prisoners from dodging the fee payment or three strikes provisions
in the Prison Litigation Reform Act. George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007). The court understands that the plaintiff wants to be transferred
because he believes that Zanon is the reason he cannot get into SOTP, and that
the individuals at the PRC meeting were helping Zanon retaliate against him for
suing her. If the plaintiff wants to pursue those claims, the plaintiff must file a
separate lawsuit and pay a separate filing fee. The court will not allow him to
amend this complaint to bring those separate claims.
Because the court will not allow the plaintiff to amend his complaint, the
court will not allow the plaintiff to serve discovery requests relating to the PRC
hearing, or to supplement the record. Dkt. No. 34 at 4.

18

The plaintiff’s request for an extension of time to “correctly” respond to
the summary judgment motion is related to the claims in this case, but the
court will deny it. In their reply brief, the defendants noted that the plaintiff did
not respond to the defendants’ proposed findings of fact, and asserted that the
court should accept those facts as undisputed. Dkt. No. 33 at 1. In this motion,
filed eleven days after the reply, the plaintiff states that he did not respond to
the defendants’ proposed findings of fact because he did not know that he was
supposed to. Id. at 6. He says he responded to the summary judgment motion
as best he could with his limited resources and capabilities, dkt. no. 34 at 6,
and asks that if “the court feels that the plaintiff did not do a good enough job”
in responding to the summary judgment motion, the court give him an
extension of sixty days to respond to the defendants’ proposed findings, dkt.
no. 34 at 7. The court notes that on April 7, 2017, it issued a scheduling order.
Dkt. No. 21. It attached to the scheduling order its local rule governing
summary judgment motions, including Civil Local Rule 56(b)(ii)(B), which
requires a party opposing summary judgment to file “a concise response to the
moving party’s statement of facts,” with directions on how to do so. Id. at 21.
The plaintiff did have notice that he needed to respond to the findings of fact.
More to the point, the court is not granting summary judgment because
the plaintiff did not do a good enough job responding to the defendants’
motion. The plaintiff is an intelligent man; the court has been able to
understand his pleadings and his arguments very well. The court is granting
19

summary judgment because it finds that the defendants are entitled to
judgment as a matter of law.
The court also denies the plaintiff’s request that it reconsider appointing
counsel to represent him. Dkt. No. 34 at 7. The plaintiff does not need a lawyer
to make his argument that the defendants are ignoring the Alford standard; he
has made that argument himself. Nor does he need an attorney to give
testimony regarding the SOTP, or the institution’s requirement that an inmate
admit he needs treatment. The plaintiff has presented his case clearly and
intelligently, despite the fact that he is not a lawyer.
Finally, the court will not grant the plaintiff’s motion for a restraining
order or temporary injunction to prevent retaliation against him, or to require
OCI to transfer him to another institution. Dkt. No. 35. The court has
determined that the defendants have not violated the plaintiff’s constitutional
rights, and the plaintiff has not established the irreparable harm and lack of
adequate remedy at law required for the extraordinary remedy of injunctive
relief.
III.

CONCLUSION
The court GRANTS the defendants’ motion for summary judgment. Dkt.

No. 24.
The court DENIES the plaintiff’s motion to supplement the record,
motion to disclose electronically stored information, motion to amend/correct

20

the complaint, motion for extension of time, motion for reconsideration. Dkt.
No. 34.
The court DENIES the plaintiff’s motion for temporary restraining
order/preliminary injunction. Dkt. No. 35.
The court DISMISSES the case. The clerk will enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
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The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 1st day of February, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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