Hietpas et al v. Buhs et al
SCREENING ORDER signed by Magistrate Judge William E Duffin on 11/30/17. IT IS THEREFORE ORDERED that Hietpas's motion for leave to proceed without prepayment of the filing fee (ECF No. 4 ) is DENIED as moot. IT IS ALSO ORDERED that, pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of plaintiffs' complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on defendants Buh s, Pawlak, Kaeserman, and Steinich. IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this court, defendants Buhs, Pawlak, Kaeserman, and Steinich shall file a responsive pleading to the complaint within sixtydays of receiving electronic notice of this order. (cc: all counsel, plaintiffs) (mlm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRITTNEY R. HIETPAS and
MICHAEL T. WINIUS,
K. KAESERMAN, and
Case No. 17‐CV‐1455
Plaintiffs Michael T. Winius, who is incarcerated at Racine Correctional
Institution, and his daughter, Brittney R. Hietpas, filed a complaint under 42 U.S.C.
§ 1983, alleging that their constitutional rights were violated. The Prison Litigation
Reform Act (PLRA) applies to this case because Winius was incarcerated when he and
his daughter filed the complaint. This order resolves Hietpas’s motion for leave to
proceed without prepayment of the filing fee and screens the complaint.
Motion for Leave to Proceed without Prepayment of the Filing Fee
On October 24, 2017, Hietpas filed a motion for leave to proceed without
prepayment of the filing fee. On November 6, 2017, Winius paid the $400 filing fee.
When multiple non‐prisoner plaintiffs jointly file a complaint, they need only pay one
filing fee per case; however, when multiple prisoner plaintiffs jointly file a complaint,
each prisoner plaintiff must pay the full filing fee. See Boriboune v. Berge, 391 F.3d 852,
855 (7th Cir. 2004). Given that Winius, who is incarcerated, paid the full filing fee, the
Court finds that Hietpas, who is not incarcerated, may join as a plaintiff without paying
an additional filing fee. As such, the court will deny her motion as moot.
Screening of the Complaint
The court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 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).
To state a cognizable claim under the federal notice pleading system, a plaintiff is
required to provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). To state a claim for relief under 42 U.S.C. §
1983, a plaintiff 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 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)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The court is obliged to give the plaintiff’s pro se allegations, “however inartfully
pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The Complaint’s Allegations
Plaintiffs allege that, while incarcerated at Racine Correctional Institution,
Winius was admitted to a program called Beacon. Beacon is a two‐year residential sex
offender program for convicted sex offenders. Plaintiffs allege that upon entry to the
program Winius signed various entrance forms, one of which required him to stop all
contact with Hietpas until she turned eighteen years old. Hietpas, who had been on
Winius’s visitor list since June 21, 1999, was taken off of his visitor list on May 29, 2015.
Hietpas was seventeen years old and had been on Winius’s visitor list for nearly sixteen
Winius asserts that defendants Dr. Lisa Buhs, K. Pawlak, and C. Steinich assured
him that Hietpas would be placed back on his visitor list once she turned eighteen on
November 26, 2015. It is not entirely clear from the complaint, but it appears that, while
Hietpas was not immediately placed on Winius’s visitor list when she turned eighteen,
Winius was permitted to communicate with her via letters and telephone calls.
On January 27, 2016, plaintiffs explain that they were talking on the telephone.
Plaintiffs were on speaker phone and other adults were on the call. Plaintiffs allege that
the call participants began joking about prison sexuality as depicted in the movies.
Winius allegedly joked about masturbating and the size of his penis.
A couple of days later, at a regularly scheduled appointment, Winius talked to
Dr. Buhs about the telephone conversation and asked for advice on how to deal with
similar situations should they arise again. About a week later, plaintiffs allege that Dr.
Buhs, Pawlak, Kaeserman, and Steinich issued Winius a Beacon Program Written
Warning. The warning summarized the call and stated that Winius had minimized his
behavior in the situation. As a sanction Winius was ordered to have no contact with
Hietpas for at least six months.
Plaintiffs allege that Winius did not violate any rule or administrative policy, he
did not receive a conduct report, and no hearing was held prior to the sanction being
administered. Winius alleges that he disputed that a warning was necessary and he
repeatedly asked that he be allowed to contact Hietpas. According to plaintiffs,
defendants threatened Winius that he would be expelled from the program and his
daughter would not be placed back on his visitor list.
The no‐contact order took effect on February 5, 2016. Hietpas was placed back on
Winius’s visitor list on August 16, 2016. In the interim, Winius was permitted to send
one card to Hietpas when she graduated from high school.
Winius filed an inmate complaint on September 15, 2016. The complaint was
rejected as untimely on September 20, 2016. The inmate complaint examiner explained
that Winius filed his inmate complaint more than fourteen days after August 16, 2016,
when the sanction ended and Hietpas was placed back on Winius’s visitor list. The
complaint examiner stated that, by waiting so long to file the inmate complaint, Winius
had deprived the institution of the opportunity to remedy any wrongdoing. Plaintiff
contends that he had good cause for the delay: he feared, based on prior experiences,
that defendants would retaliate against him if he filed a formal complaint.
The Court’s Analysis
Fathers and daughters have an important interest in maintaining a relationship
with one another. However, “denial of prison access to a particular visitor is well within
the terms of confinement ordinarily contemplated by a prison sentence.” Stojanovic v.
Humphreys, 309 Fed.Appx. 48, 50‐51 (7th Cir. 2009). “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. at 51.
Plaintiffs allege that defendants prohibited all contact between them for six
months because of off‐color joking during a group telephone call. At this stage, this is
sufficient for them to proceed on a claim that defendants unreasonably denied them
contact in violation of the Constitution. In addition, the court will allow Winius to
proceed on a claim that the sanction violated the Due Process Clause because he may
have a liberty interest in maintaining a familial relationship and because he allegedly
received none of the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539,
Finally, the court will allow plaintiffs to proceed on state law negligence claims
and an intentional infliction of emotional distress claim. See Lopez v. City of Chicago, 464
F.3d 711, 720 (7th Cir. 2006) (to state a claim for the intentional infliction of emotion
distress a plaintiff must allege “(1) that the defendants’ conduct was extreme and
outrageous; (2) that they intended their conduct to inflict severe emotional distress or
knew there was at least a high probability their conduct would inflict such distress; and
(3) that their conduct did in fact cause him severe emotional distress.”).
The court acknowledges that Winius filed an untimely inmate complaint and did
not strictly comply with the Department of Corrections’ rules for exhausting
administrative remedies. However, Winius explains that his delay should be excused
because he was afraid defendants would retaliate against him if he filed a formal inmate
complaint. The court finds that Winius has sufficiently alleged that administrative
remedies were unavailable to him. Further development of the record is necessary
before the court can decide whether Winius’s claim of unavailability has merit. See
Kincaid v. Sangamon County, 435 Fed.Appx. 533, 536‐37 (7th Cir. 2011).
IT IS THEREFORE ORDERED that Hietpas’s motion for leave to proceed
without prepayment of the filing fee (ECF No. 4) is DENIED as moot.
IT IS ALSO ORDERED that, pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of plaintiffs’
complaint and this order are being electronically sent today to the Wisconsin
Department of Justice for service on defendants Buhs, Pawlak, Kaeserman, and Steinich.
IT IS FURTHER ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, defendants Buhs, Pawlak,
Kaeserman, and Steinich shall file a responsive pleading to the complaint within sixty
days of receiving electronic notice of this order.
IT IS ALSO ORDERED that the parties may not begin discovery until after the
court enters a scheduling order setting deadlines for discovery and dispositive motions.
IT IS FURTHER ORDERED that plaintiffs shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter. As each filing will be electronically scanned
and entered on the docket upon receipt by the clerk, plaintiffs need not mail copies to
the defendants. All defendants will be served electronically through the court’s
electronic case filing system. Plaintiffs should also retain a personal copy of each
document filed with the court.
Plaintiffs are advised that failure to make a timely submission will result in the
dismissal of this action for failure to prosecute. In addition, the parties must notify the
Clerk of Court of any change of address. Failure to do so could result in orders or other
information not being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin this 30th day of November, 2017.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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