Smith v. Frame

Filing 61

ORDER signed by Judge J.P. Stadtmueller on 10/9/2018: GRANTING 45 Defendant's Motion for Summary Judgment; DENYING as moot 43 Plaintiff's Motion for Summary Judgment and 60 Plaintiff's Motion to Review Certain Filed Documents; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Virgil M. Smith at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGIL M. SMITH,
Plaintiff,
v.
BAILEY FRAME,

Case No. 17-CV-1745-JPS

ORDER
Defendant.

Plaintiff proceeds against Defendant on a First Amendment claim of
interference with his right of familial association. (Docket #21 at 1–2; Docket
#31). Specifically, Plaintiff alleges that Defendant denied a request for an
emergency telephone call with his aunt. (Docket #21 at 1). On August 31,
2018, Defendant filed a motion for summary judgment. (Docket #45).
Defendant argues that the undisputed facts demonstrate that she had
legitimate reasons to disallow the call, which is all the First Amendment
requires of her. See (Docket #46 at 5–11). Defendant further contends that
she is entitled to qualified immunity. Id. at 12–15.
Plaintiff’s response to the motion makes no attempt to counter these
contentions. (Docket #56). Instead, his only arguments are procedural;
Plaintiff says Defendant’s submissions violate various rules governing
summary judgment motions. Id. at 1–11, 16–19. He also attempts to dispute
a number of Defendant’s statements of fact, but his disputes are either not
material or not supported with relevant evidence. Id. at 11–16; (Docket #58).
Moreover, without accompanying legal argument, Plaintiff would seem to
compel the Court to cobble his position together from his rambling and
convoluted submissions. This it cannot do. Davis v. Jewish Vocational Serv.,

407 F. App’x 946, 946 (7th Cir. 2011) (“We will construe a pro se litigant’s
brief liberally, but we cannot construct arguments where there are none.”).
Plaintiff’s submissions do nothing to counter Defendant’s assertion
that denial of Plaintiff’s emergency phone call was reasonably related to
legitimate penological interests, and therefore passed constitutional
muster. See Singer v. Raemisch, 593 F.3d 529, 534 (7th Cir. 2010); Overton v.
Bazzetta, 539 U.S. 126, 132 (2003). The relevant prison policy only permitted
emergency phone calls when a close family member was critically ill or had
passed away. The policy was meant to protect members of the public from
unwanted telephone contact by prisoners, and to avoid taxing the prison’s
resources, as it bore the cost of such calls. Plaintiff’s stated purposes for
seeking to contact his aunt were a desire to confirm that she received some
of his correspondence, and to have her contact attorneys and the media,
presumably to help him challenge his criminal conviction. None of these
interests fell within the policy or otherwise constituted an emergency.
Further, he was free to contact his aunt (or attorneys and the media) by mail,
or to have her set up a regular phone account so that he could place nonemergency calls to her. Defendant was well within her rights to deny the
call, and certainly did not violate Plaintiff’s right of familial association.
Plaintiff thus fails to avoid summary judgment on the merits. His
procedural arguments do not save him. First, Plaintiff says that Defendant
did not file a statement of proposed material facts in accordance with Civil
Local Rule 56(b)(1)(C). (Docket #56 at 3–4). This is patently false. (Docket
#47) (Defendant’s proposed findings of fact, wherein she states short,
numbered assertions of fact with citations to attached evidentiary
materials). Second, Plaintiff suggests that Defendant’s motion does not
comply with Civil Local Rules 7 and 56, as well as Federal Rule of Civil
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Procedure 56, though it is difficult to determine why he believes this.
(Docket #56 at 4–5). In any event, the motion is compliant; Defendant’s
motion requests summary judgment, cites the appropriate procedural
rules, and incorporates the required materials, including a brief, statements
of fact, and evidence. See (Docket #45–#49).1 Third, and relatedly, Plaintiff
asserts that Defendant’s summary judgment materials do not cite the
specific rule under which they are made. (Docket #56 at 5–7). This too is
false. (Docket #45 at 1) (“NOW COMES Defendant . . . and hereby moves
the Court, pursuant to Fed. R. Civ. P. 56, for an order of summary judgment
dismissing this lawsuit.”). Finally, Plaintiff argues that Defendant’s motion
must be denied because it does not identify the particular claim upon which
judgment is sought. (Docket #56 at 7–8). This is meaningless in a case
involving one claim and one defendant, and in a motion which seeks
dismissal of the entire action. (Docket #21 and #45).2
Plaintiff chose to put all of his eggs in the basket of perceived
procedural infirmities, rather than arguments on the merits of his case. This
was foolhardy. On the material and undisputed facts presented, and
without argument to the contrary from Plaintiff, the Court finds that
Defendant is entitled to summary judgment. The Court must, therefore,
grant Defendant’s motion and dismiss this action with prejudice. Plaintiff’s
motion for summary judgment, which is ironically rife with its own

Plaintiff requests that the Court “enforce the ‘No Briefing Rule’ on
defendant,” (Docket #56 at 4), but the Court is at a loss as to what this means.
Defendant did file a brief. (Docket #46).
1

The final portion of Plaintiff’s brief states that Defendant “should be
afforded an opportunity to file a motion that complies with the ‘rules.’” (Docket
#56 at 16). Defendant’s current motion does comply with the applicable procedural
rules. She need not file another one.
2

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procedural failings, must be denied as moot. (Docket #43). The same is true
of Plaintiff’s motion to review certain documents on the docket. (Docket
#60).
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #45) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #43) and motion to review certain filed documents
(Docket #60) be and the same are hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of October, 2018.
BY THE COURT:

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

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