Kemper v. Piech et al

Filing 13

SCREENING ORDER signed by Judge J.P. Stadtmueller on 11/17/2017. 11 Plaintiff's Amended Complaint to be the operative complaint in this action. Plaintiff PERMITTED to proceed on the following claims: interference with Plaintiff's right to freedom of speech and expression in violation of the First Amendment; denial of procedural due process, in violation of the Fourteenth Amendment; and denial of equal protection of law, in violation of the Fourteenth Amendment. Copies of Plaintiff 's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendant, who shall file a responsive pleading within 60 days. See Order. (cc: all counsel, via mail to Terry C. Kemper and Warden at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRY C. KEMPER,
Plaintiff,

v.

Case No. 17-CV-1123-JPS

WARDEN PAUL KEMPER,
Defendant.

ORDER

Plaintiff, who is incarcerated at the Racine Correctional Institution
(“RCI”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). At the Court’s suggestion, see
(Docket #9), he has filed an amended complaint. The Court now turns to
screening that complaint.
Notwithstanding the payment of any fee, Court is required to screen
complaints brought by prisoners seeking relief against a governmental
entity or an officer or employee of a governmental entity. Id. § 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. Id. § 1915A(b). The same
standards applicable in the first screening order remain applicable here.
(Docket #4 at 1–3).
Plaintiff’s amended complaint is largely identical to his original
complaint. The thrust of it appears to be clarifying his existing claims.
Plaintiff is an inmate at RCI and is presently serving a sentence as a

registered sex offender. (Docket #11 at 2). Defendant Paul Kemper
(“Kemper”) is the prison warden. Id.
Plaintiff is being denied certain publications he orders. Id. The
denials are made in the first instance by the prison’s chief psychologist, Dr.
Michael Hagan (“Hagan”). Id. Plaintiff complains that Hagan’s review of
incoming materials is not done in accordance with Wisconsin Department
of Corrections (“DOC”) policy or the policies of his specific institution,
including the RCI inmate handbook and RCI’s “chain of command”
(“COC”) procedures. Id. The DOC policies, cited in the amended complaint,
permit prison officials to deny publications to inmates that are “injurious,”
which is defined as material that: (1) is pornography; (2) poses a threat to
the security, orderly operation, discipline or safety of the institution; (3) is
inconsistent with or poses a threat to the safety, treatment, or rehabilitative
goals of an inmate; or (4) facilitates criminal activity. Wis. Adm. Code §
DOC §§ 309.05(2)(b)(4), 309.04(4)(c)(8).1
Rather than make careful determinations under these policies as to
whether the materials Plaintiff ordered were appropriate, Plaintiff alleges
that Hagan makes blanket denials. Id. It appears that Hagan’s decisionmaking is motivated, at least in part, by Plaintiff’s sex-offender status and
the fact that Plaintiff is currently undergoing sex offender treatment. See id.
at 4. Despite Plaintiff’s repeated complaints to Hagan, other psychological
services staff, and supervisory prison officials about the denials, no policy
change has been made. See id. at 3–4. In fact, Hagan’s actions have been
approved by Deputy Warden Steven Johnson, in a memorandum he issued

Whatever additional review protocols may be imposed through the RCI
inmate handbook and the COC procedures, Plaintiff does not describe them.
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to Plaintiff on September 16, 2016, by Kemper himself in another
memorandum issued to Plaintiff on October 6, 2016. Id. at 2–3. Plaintiff’s
inmate grievance on the matter was also denied at all levels of review, with
the examiners citing the fact that Hagan’s review is consistent with
publication review policies applicable to sex offenders. Id. at 4.
Plaintiff raises several claims from these facts. First, Plaintiff believes
that Kemper violated his First Amendment free-speech rights by approving
Hagan’s publication-review decisions, as he feels that he cannot order any
materials that will pass Hagan’s review. Id. Second, Plaintiff alleges that
Kemper has imposed on him an enhanced publication review process
because he is presently undergoing sex offender treatment but has not yet
completed the program. See id. This enhanced review is, in Plaintiff’s view,
not authorized by DOC policy, the RCI inmate handbook, or RCI’s COC
procedures, and it violates his procedural due-process rights under the
Fourteenth Amendment. Id. Third, because this enhanced review
procedure is applicable only to Plaintiff as an untreated sex offender, and
is not applicable even to other general-population sex offenders—i.e., those
who are not undergoing treatment—Plaintiff contends it contravenes his
right to equal protection of the law as guaranteed by the Fourteenth
Amendment. Id. Plaintiff prays for injunctive and declaratory relief against
future discrimination. Id.
The allegations and claims in the amended complaint closely track
Plaintiff’s original complaint. As a result, the Court finds that Plaintiff
should be permitted to proceed on the same claims as discussed in the first
screening order. See (Docket #4 at 4–9). The Court will not repeat that
lengthy analysis here. It suffices to note that, under the narrow exception to
Eleventh Amendment immunity recognized in Ex parte Young, 209 U.S. 123
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(1908), Plaintiff may proceed against Kemper in his official capacity to
enjoin violations of Plaintiff’s constitutional rights under the First and
Fourteenth Amendments. See Ameritech Corp. v. McCann, 297 F.3d 582, 596
(7th Cir. 2002).2
For the reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) interference with Plaintiff’s right to freedom of
speech and expression arising from denial of access to publications, in
violation of the First Amendment, against Defendant Kemper; (2) denial of
procedural due process, in violation of the Fourteenth Amendment, against
Defendant Kemper; and (3) denial of equal protection of the law, in
violation of the Fourteenth Amendment, against Defendant Kemper. 28
U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s amended complaint (Docket #11)
shall be the operative complaint in this action;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s amended complaint and this Order will be
electronically sent to the Wisconsin Department of Justice for service on
Defendant;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,

It should be noted that Plaintiff alleges he is being denied any
publications, regardless of whether they are sexually explicit in nature. See (Docket
#9 at 1–2). Thus, this case is not simply about whether a sex offender can receive
sexually explicit material; it concerns a broader policy of allegedly enhanced
review of publications received by sex offenders undergoing treatment.
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Defendant shall file a responsive pleading to the complaint within sixty (60)
days of receiving electronic notice of this Order; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 17th day of November, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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