Castellano v. State of Wisconsin Department of Corrections et al

Filing 16

ORDER signed by Judge J.P. Stadtmueller on 12/27/2016. Defendant Spotts to file responsive pleading within 60 days. (cc: all counsel, via mail to John Castellano and Warden at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN J. CASTELLANO,
Plaintiff,
v.

Case No. 16-CV-1248-JPS

JENNIFER SPOTTS,
Defendant.

ORDER

On December 2, 2016, the Court screened the plaintiff’s first amended
complaint. (Docket #12). The Court found that the plaintiff had yet again
improperly attempted to include unrelated claims against multiple
defendants. Id. at 3-4. The Court struck the complaint and required the
plaintiff to offer a second amended complaint to continue this action. Id. at
4. On December 21, 2016, the plaintiff submitted a second amended
complaint. (Docket #15).
As noted in its November 3, 2016 screening order on the initial
complaint, the Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. See (Docket #10 at 1); 28 U.S.C. § 1915A(a). The Court
must dismiss a complaint or portion thereof if the prisoner has raised claims
that are legally “frivolous or malicious,” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). The same standards cited in
the original screening order apply here. (Docket #10 at 1-3).
The second amended complaint is presented against a single
defendant, Jennifer Spotts (“Spotts”). (Docket #15 at 2). The plaintiff

complains that Spotts, a psychologist, lied about him in various ways,
resulting in the revocation of his supervised release in January 17, 2014. See
id. at 2-16. Most of the alleged falsities come from a report dated May 18,
2011, titled a “Sex Offender Program Report.” (Docket #15-1 at 24-29).
Therein, Spotts offered her opinions on the plaintiff after his completion of
a sex offender treatment program she supervised. Id. The plaintiff states that
there are a number of inaccuracies in the report, including facts regarding his
underlying offenses and his relationship with other underage girls. (Docket
#15 at 5-16). The plaintiff maintains that these alleged misstatements
influenced various people involved in the revocation process, including the
judge. Id.
The plaintiff claims that Spotts’ lies were retaliation in violation of his
First Amendment rights. Id. at 2. These allegations begin with the plaintiff’s
participation in the SO-2 program. Id. at 4-5. The plaintiff does not describe
the contours of this program and the process for entering it, but Judge
Adelman has:
SO–2 is a short-term, eleven-month sex offender
treatment program that is designed for inmates who have been
identified through risk assessment as having a low to moderate
risk for sexual re-offense and low to moderate treatment needs.
Upon successful completion of SO–2, a treatment progress
report is placed in an inmate’s clinical file, and completion is
noted for future case planning and classification. Completion
of sex offender treatment is required for some parole-eligible
inmates before they will be considered for release on parole.
The Parole Commission makes this determination. When an
inmate becomes parole-eligible or the Parole Commissioner
provides an endorsement for treatment, the inmate is then
reviewed by [the supervising doctor] for possible participation
in SO–2. This typically occurs when an inmate is within a few
years of eligibility for release.

Page 2 of 6

There are a limited number of seats available in each sex
offender treatment group and there is a lengthy wait-list to
enroll. Inmates who are closest to their release date are
considered for enrollment first to try to ensure that they
receive treatment before they enter the community. When
considering enrolling an inmate in SO–2, [the doctor] would
consider an inmate’s release date and would give additional
consideration to whether the inmate had received from the
Parol[e] Commission an endorsement for treatment. Such an
endorsement signals to [the doctor] that the inmate may be
eligible for parole release in the near future.
...
Inmates are selected for participation in SO–2 on a
case-by-case basis. This occurs through a review of the current
wait list and a review of the inmate's relevant records,
including, but not limited to, the judgment of conviction,
presentence investigation, criminal complaint, and Parole
Commission endorsements. An inmate is then interviewed and
asked to briefly explain their sexual offense history. Based on
the information available, [the doctor] exercises professional
discretion in selecting program participants.
Glover v. Dickey, No. 14-CV-87-LA, 2015 WL 5521858 *1-2 (E.D. Wis. Sept. 18,
2015).
With that primer, the Court addresses the plaintiff’s relevant
allegations. In January 2009, the plaintiff met with Spotts. He told Spotts that
parole commissioner Steven Landreman (“Landreman”) had “give [the
plaintiff] his endorsement for SO-2.” (Docket #15 at 4). Spotts responded that
“there were inmates with five and six SOT endorsements from Mr.
Landreman, but they had been denied, that he knows this, [and] that they
have had several discussions on his endorsements[.]” Id. Spotts further stated
that “there were 395 inmates on the SOT waiting list, and that she needed
another (“87") facilitators for SOT programs. . . . She then said that inmates

Page 3 of 6

are not allowed to participate in SOT until they are within two years from
their mandatory release dates.” (Docket #15-1 at 16).
In January 2010, the plaintiff met again with Landreman. The plaintiff
had

previously

complained

to

Landreman that

“his

SOT/SO-2

recommendation(s) [had fallen] on deaf ears.” (Docket #15 at 2). Landreman
told the plaintiff “that he had just talked with [Spotts] about the . . . allegation
that [the plaintiff’s] SO-2 endorsements fell on deaf ears.” Id. at 4. Landreman
“said that [Spotts] called [the plaintiff] a (“LIAR”).” Id. In March 2010,
however, the plaintiff was enrolled in Spotts’ SO-2 program, and successfully
completed it in February 2011. Id. at 4-5. He was released on parole in May
2011. Id. at 5.
The Court concludes that the plaintiff has stated a viable claim for
First Amendment retaliation. To state such a claim, the plaintiff must show
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 Amendment activity was at least a motivating
factor in the Defendants’ decision to take the retaliatory action.” Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quotation omitted). The Court is not
convinced that the plaintiff’s complaint about the SO-2 program was
protected speech, or that retaliatory motive can be inferred across the time
span between the January 2010 “liar” comment and Spotts’ May 18, 2011
report. See Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010) (addressing
protected speech); Banks v. Thomas, No. 11-301-GPM, 2011 WL 6151637 (S.D.
Ill. Dec. 12, 2011) (discussing timing issue). However, given the Seventh
Circuit’s extremely liberal approach to retaliation claims, the Court concludes
that further factual development is needed before the claim is subject to
dismissal.
Page 4 of 6

The plaintiff’s other related claims do not survive. The plaintiff fails
to state a valid equal protection claim. He alleges a “class-of-one” style claim,
which requires that “he was ‘intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in
treatment.’” Swanson v. City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013)
(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Other than to
state that legal conclusion, the plaintiff does not allege that he was treated
differently than any other of Spotts’ patients. He gives no hint of any facts to
support an inference of differing treatment, and so the “class-of-one” claim
must be dismissed.
The plaintiff further attempts to allege libel and slander, which fall
under the modern umbrella of defamation. Unlike constitutional torts, such
claims are based in state law, here the law of Wisconsin. Wisconsin has
established a two-year statute of limitations for defamation. Ladd v. Uecker,
780 N.W.2d 216, 219 (Wis. Ct. App. 2010). Spotts’ report was issued in 2011,
and so the plaintiff has missed his window for bringing the claim by over
three years.
In sum, the Court finds that the plaintiff may proceed only on the
following claim: Spotts’ retaliation against the plaintiff, in violation of the
First Amendment, for his January 2009 complaint about her regarding his
entry into the SO-2 program.
Accordingly,
IT IS ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this Court, copies of
plaintiff’s complaint and this order will be electronically sent to the
Wisconsin Department of Justice for service on the state defendant;

Page 5 of 6

IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, the
defendant shall file a responsive pleading to the complaint within sixty (60)
days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin this 27th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
District Judge

Page 6 of 6