Schessler v. FRANK

Filing 6

Order on ifp request: Petitioner request for ifp denied and dismissed with prejudice for petitioner's failure to state claim upon which relief may be granted. Strike recorded against petitioner. Signed by Judge Barbara B Crabb on 2/15/2008. (llj)

Schessler v. FRANK

Doc. 6

Case: 3:08-cv-00019-jcs

Document #: 6

Filed: 02/19/2008

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------B R IA N K. SCHESSLER, ORDER Petitioner, 0 8 - c v - 1 9 - jc s v. M A T T H EW J. FRANK, KATHRYN A N D ER SO N , JUDY P. SMITH, LIEUTENANT T H O M A S TESS, RUTH TRITT, WILLIAM J. S C H ID ER and DALE PIERCE, Respondents. --------------------------------------------B ecau se Judge Shabaz will be convalescing from shoulder surgery for a period of not less than sixty days beginning February 1, 2008, I have assumed administration of the cases previo usly assigned to him, including this one. T h i s is a proposed civil action brought pursu an t to 42 U.S.C. § 1983. Judge Shabaz granted petitioner's request to proceed in form a pauperis. Petitioner paid his initial partial payment in accordance with 28 U.S.C. § 1 9 1 5. Because petitioner is a prisoner, I am required under the 1996 Prison Litigation R eform Act to screen his complaint and dismiss any claims that are legally frivolous, m alicious, fail to state a claim upon which relief may be granted or asks for money damages

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Case: 3:08-cv-00019-jcs

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Filed: 02/19/2008

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fro m a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915 and 1 9 1 5A . In addressing any pros se litigant's complaint, the court must read the allegations of the complaint liberally. Haines v. Kerner, 404 U.S. 519, 521 (1972). Although this court w ill not dismiss petitioner's case sua sponte for lack of administrative exhaustion, if r es po nden ts can prove that petitioner has not exhausted the remedies available to him as req uired by § 1997e(a), they may allege his lack of exhaustion as an affirmative defense and argu e it on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Massey v. Helman, 1 9 6 F.3d 727 (7th Cir. 1999); see also Perez v. Wisconsin Dept. of Corrections, 182 F.3d 53 2 (7th Cir. 1999). In his complaint petitioner alleges the following facts.

A LL EG A T IO N S OF FACT Petitioner is a prisoner at the Oshkosh Correctional Institution in Oshkosh, W isco n sin . Respondents Ruth Tritt and William J. Schider are mailroom staff. Respondent Lieutenant Thomas Tess is the mailroom supervisor. Respondent Judy P. Smith is the w a rd en . Respondent Matthew J. Frank was the Secretary of the Wisconsin Department of Co rrections. Respondent Kathryn Anderson is the Interim Chief Legal Counsel of the D epartm ent of Corrections.

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O n August 12, 2006, petitioner received legal mail from the Office of the Attorney G eneral of Wisconsin. The envelope was opened and retaped and was not stamped with "O P E N IN THE PRESENCE OF INMATE." This was a violation of Department of

Co rrections policies and procedures. Mailroom staff did not explain why this letter was op ened outside petitioner's presence. That same day petitioner filed an inmate complaint concerning the opening of his legal mail outside his presence. On August 17 and 18, 2006, respectively, Inmate Complaint E xam in er Jennifer Delauaux and respondent Judy Smith affirmed petitioner's complaint and referred it to respondent Thomas Tess, the mailroom supervisor, to address the problem with m ailroo m staff. O n December 28, 2006 petitioner received a letter from the Milwaukee County Fam ily Court Commissioner. The envelope was opened and retaped and was not stamped, "O PEN IN THE PRESENCE OF THE INMATE." Mailroom staff gave no explanation why the letter was opened outside of petitioner's presence. P e t i ti o n e r immediately filed an inmate complaint concerning this incident. A

T im othy Pierce, inmate complaint examiner, and respondent Judy Smith affirmed his com plaint. Smith forwarded it to the mailroom supervisor to address with staff. O n January 3, 2007, petitioner wrote a letter to Matthew Frank, Secretary of the D epartm ent of Corrections, demanding an investigation into mail tampering. On

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F eb ru ary 2, 2007, Kathryn Anderson, Interim Chief Legal Counsel for the Department of C o rrectio n s, responded to petitioner's letter advising him to use the inmate complaint system . The next day petitioner received the letter. The envelope was opened and retaped. It was not stamped "OPEN IN THE PRESENCE OF THE INMATE." O n February 5, 2007, petitioner filed an inmate complaint concerning the February 3, 2 0 0 7 opening of his legal mail. The inmate complaint examiner advised petitioner on February 8, 2007 that no error had occurred because the return address did not require the envelope to be opened in his presence. On February 20, 2007 plaintiff filed an appeal to the co rrectio n s complaint examiner, who affirmed the dismissal of the complaint. The Office of the Secretary also affirmed the dismissal of the complaint. decisions in a sealed envelope. R e sp o nd en ts Tritt and Schider belonged to Local FLO-CIO Union 3409. Respondent D a le Pierce was the president of the union Petitioner received these

O PIN IO N L ib erally construing petitioner's complaint, I understand him to be alleging that on three separate occasions, respondents Tritt and Schider opened his legal mail outside his presence. He does not allege that respondents Thomas Tess, Matthew Frank, Kathryn An derson , Judy Smith and Dale Pierce knew about the alleged incidents until after they

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o ccu rred . Liability under § 1983 arises only through a respondent's personal involvement in a constitutional violation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); Del R a in e v. Williford, 32 F.3d 1024, 1047 (7th Cir. 1994). Only persons who cause or

participate in a constitutional violation are responsible. Particularly where, as here, the in cident is over by the time the complaint is filed, deciding whether the complaint should b e dismissed or affirmed does not cause or contribute to the violation. George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). I turn then to petitioner's claim that respondents Tritt and Schider opened legal mail o utsid e his presence. Prisoners have a limited First Amendment interest in their mail. M artin v. Brewer, 830 F.2d 76, 77 (7th Cir. 1987). As a general rule, inmate mail can be op ened and read outside the inmate's presence, but legal mail is subject to somewhat greater pro tection . Although prison officials may open a prisoner's legal mail in his presence, Wolff v. McDonnell, 418 U.S. 539, 577 (1974), repeated instances of opening a prisoner's legal m ail outside his presence are actionable. Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th C ir. 1996) (allegations that legal mail was repeatedly opened and sometimes stolen stated claim ); Castillo v. Cook County Mail Room Dept., 990 F.2d 304, 306-07 (7th Cir. 1993) (allegation that prisoner's legal mail was opened outside his presence stated a claim). The extra protections afforded legal mail are reserved generally for privileged correspondences b etw e en inmates and their attorneys. Wolff, 418 U.S. at 574; Antonelli, 81 F.3d at 1432.

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T h e protections do not extend to court orders as a general rule. Martin v. Brewer, 830 F.2d 7 6 . 78 (7th Cir. 1987) ("[W}ith minute and irrelevant exceptions all correspondence from a court to a litigant is a public document, which prison personnel could if they want inspect in the court's files.") It is the confidential nature of the relationship between a lawyer and client that affords the special treatment for legal mail. T hus, I must decide first whether the mail opened outside petitioner's presence co n stitu tes legal mail protected under the Constitution. I agree with the inmate complaint exam in er that the February 2, 2007 letter from Kathryn Anderson with a return address of the Department of Corrections was not privileged mail. This mail was not from petitioner's attorney and, in fact, was nothing more than a directive that petitioner use the inmate co m plaint system. Petitioner does not describe the contents of the envelopes from the Office of the A t t o r n e y General and the Milwaukee County Family Court Commissioner. If these

envelo p e s contained documents related to court cases, they would be matters of public record. Even if the envelopes contained privileged information which should have been op ened in petitioner's presence, the incidents were isolated. One incident occurred in August of 2006 and one occurred in December, four months later. The court of appeals has held that the First Amendment is violated only by repeated incidents, suggesting ongoing, intention al behavior. Castillo, 990F.2d at 306. Isolated incidents are not sufficient to state

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a claim. Therefore, petitioner's allegations that respondents violated his First Amendment rights fail to state a claim upon which relief may be granted. T o the extent that petitioner may be alleging that respondents Tritt and Schider viola ted state statutes or Department of Corrections policies and procedures when they op ened his mail, his claims are claims of possible state law violations that he is free to raise in state court. In summary, because petitioner has not alleged any facts in his complaint that could be construed liberally to make out a claim under the First Amendment, and because this cou rt does not have jurisdiction to hear his claims under state law, I must deny his request fo r leave to proceed in forma pauperis and dismiss this case for failure to state a claim upon w hich relief may be granted in federal court.

ORDER IT IS ORDERED that: 1. Petitioner Brian Schessler's's request for leave to proceed in forma pauperis on his First Am endm ent and state law claims is DENIED and this case is DISMISSED with prejudice for petitioner's failure to state claim upon which relief may be granted; 2. The unpaid balance of petitioner's filing fee is $333.65; this amount is to be paid in m on thly payments according to 28 U.S.C. § 1915(b)(2);

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3 . A strike will be recorded against petitioner pursuant to § 1915(g); and 4. The clerk of court is directed to close the file. Entered this 15th day of February, 2008. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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