Maddox, Cornelius v. Pollard, William et al

Filing 63

ORDER denying plaintiff's 32 Motion for Summary Judgment; granting defendants' 40 Motion for Summary Judgment. The clerk of the court is directed to enter judgment in favor of defendants and close this case. Signed by District Judge William M. Conley on 7/24/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CORNELIUS MADDOX,
Plaintiff,
v.

OPINION & ORDER
10-cv-831-wmc

PETER ERICKSEN, MARK S. STUTLEEN,
WENDY BRUNS, DENNIS MOSHER,
MALEAH CUMMINGS, and MARIA
AMARANTE,
Defendants.
In this civil action brought pursuant to 42 U.S.C. § 1983, pro se plaintiff Cornelius
Maddox alleges that defendants, employees of the Wisconsin Department of Corrections
(“DOC”), violated his First Amendment rights by approving his transfer to the general
population unit of the Wisconsin Secure Program Facility in retaliation for filing a
lawsuit complaining about inadequate dental care at the Green Bay Correctional
Institution. Both parties have moved for summary judgment. (Dkt. ##32, 40.) Because
Maddox fails to proffer any evidence save related timing from which a reasonable jury
could find a causal connection between the individual defendants who played a role in
his transfer and Maddox’s lawsuit against other, unrelated DOC employees, the court will
grant defendants’ motion for summary judgment.

UNDISPUTED FACTS 1
I. The Parties
From August 2001 until October, 21, 2008, plaintiff Cornelius Maddox was
incarcerated at the Green Bay Correctional Institution (“GCBI”). On October 21, 2008,
Maddox was transferred to Wisconsin Secure Program Facility General Population
(“WSPF-GP”) and remained there until January 27, 2010, at which point he was
transferred to Stanley Correctional Institution, where he currently resides.
Defendant Peter Ericksen is currently, and was for all times relevant to this
lawsuit, employed as the Security Director at GBCI. At all times relevant to this matter,
Mark Stutleen was employed as a Supervising Officer 1 (Lieutenant) at GBCI. Wendy
Bruns is currently, and was for all relevant times, employed as an Offender Classification
Specialist at GCBI. Dennis Mosher is currently, and was for all relevant times, employed
as Institution Social Services Director at GCBI. At all times relevant to this lawsuit,
Maleah Cummings and Maria Amarante were employed as psychologists at GBCI. As
part of their respective responsibilities, defendants Bruns, Stutleen, Mosher were
members of the Program Review Committee (“PRC”). The PRC is an administrative
body designated to evaluate and recommend inmate classification assignments and
transfers.

1

The court finds the following facts taken from the parties proposed findings of fact to
be material and undisputed.

2

II. Maddox’s 2008 Lawsuit
On June 17, 2008, Maddox filed a lawsuit in the Eastern District of Wisconsin
against GCBI Warden William Pollard and Health Services Manager Jeanne Greenwood,
as well as a dentist, dental hygienist and nurse, alleging inadequate dental care at GBCI.
Maddox v. Jones, No. 08-cv-521 (E.D. Wis. June 17, 2008).

In a decision dated

September 8, 2008, plaintiff was granted leave to proceed against the dentist, dental
hygienist and nurse. Maddox v. Jones, No. 08-cv-52 (E.D. Wis. Sept. 8, 2008) (dkt. #9).
While Maddox’s claims against Pollard and Greenwood were initially dismissed, that
portion of the decision was subsequently vacated and Greenwood and Pollard were
reinstated as defendants in an order dated October 8, 2008. Maddox v. Jones, No. 08-cv521 (E.D. Wis. Oct. 8, 2008) (dkt. #20).
None of the defendants in the Eastern District of Wisconsin action were named as
defendants in the June 2008 lawsuit.

The three current defendants who actually

participated as members of GBCI’s Program Review Committee in the decision to
transfer Maddox -- Mosher, Stutleen, and Bruns -- do not recall knowing or Maddox
personally telling them that he filed a lawsuit against other DOC employees at GBCI.
Maddox disputes this, pointing to the October 2008 PRC hearing notes, which indicate
that Maddox expressed the belief that his transfer was in retaliation for his filing the
dental care lawsuit and an earlier lawsuit against WSPF. (See infra Undisputed Facts,
part V.)

Cummings similarly does not recall Maddox mentioning his 2008 lawsuit,

though her notes reflect that Maddox mentioned an earlier lawsuit against WSPF.

3

III.Transfer Process
Pursuant to Wisconsin Administrative Code DOC § 302.19, a correctional
facility’s security director may transfer an inmate to any facility authorized by the DOC
according to program review procedures that include factors used in assigning a custody
classification. 2

Typically, the security director makes a recommendation for possible

transfer to WSPF. 3 A referral is then reviewed by psychological and health services to
determine if there are any psychological or medical contraindications that would caution
against transfer to WSPF. If the referral clears this hurdle, it is then sent to review by the
central office. If the referral is approved by the central office, the social worker / PRC at
the institution initiates the appropriate paperwork for transfer. At that stage, the PRC
interviews the inmate being referred. 4

2

Defendants represent in their proposed findings of facts that “transfers are not
unusual.” While defendants cite to Mosher’s Affidavit in support, he actually avers that
“lateral transfers rarely occur unless as a trade, and/or requested by Security.” (Affidavit
of Daniel Mosher (dkt. #47) ¶ 10.) Instead, Mosher contends that it is not unusual for
Security to make a referral for a lateral transfer. (Id. at ¶ 9.) In other words, as the court
understands, when a lateral transfer is recommended, it is not unusual that Security is
the impetus for such a move. Ericksen’s affidavit states unambiguously that “[l]ateral
transfers are not unusual.” (Affidavit of Peter Ericksen (dkt. #49) ¶ 7.) The averments
of Moser and Ericksen may appear, but are not necessarily, contradictory. Taken
together, the court understands that lateral transfers are not, in and of themselves,
“unusual,” although they “rarely occur unless as a trade and/or requested by security.”
Regardless, the frequency of lateral transfers is not central to Maddox’s retaliation claim.

3

Maddox responds to this proposed fact and several others simply on the basis that he
has “no personal knowledge” of the procedure. (See e.g., Pl.’s Resp. to Defs.’ PFOFs (dkt.
#56) ¶¶15, 16, 17.) Maddox’s lack of personal knowledge of a proposed fact is an
inadequate basis to find a genuine dispute of a material fact.
4

An inmate may waive his appearance. In this case, the PRC conducts a file review to
make the transfer decision.
4

IV. Maddox’s July 2008 PRC Review
On July 31, 2008, Maddox was seen by the PRC for his regularly scheduled
review. At that review, Maddox requested “custody reduction” with an accompanying
transfer to Oshkosh Correctional Institution or Racine Correctional Institution. In the
alternative, if retained at maximum custody, Maddox requested a transfer to another
maximum security site. The PRC determined that, based on Maddox’s behavior since his
last review, continued maximum-security level monitoring was warranted and that there
was not a sufficient justification for a “lateral transfer” to another maximum security
facility, at that time. 5

V.

Maddox’s Transfer to WSPF
In response to bed management issues in certain DOC facilities, the Division of

Adult Institutions reallocated 50 WSPF beds to the maximum security general
population, effective September 3, 2008.

Due to the availability of these beds,

defendants represent that “it is likely classification and institution staff was asked to refer
inmates from their GP units who may be suitable for transfer to WSPF-GP.” (Defs.’
PFOFs (dkt. #42) ¶ 28 (citing Affidavit of Mark Heise (“Heise Aff.”) (dkt. #46) ¶ 18).)
5

Maddox would dispute this fact, stating “Maddox’s behavior since his last review.”
(Pl.’s Resp. to Defs.’ PFOFs (dkt. #59) ¶ 23.) The court assumes that Maddox wishes to
dispute that his behavior since his last review justified the PRC’s decision to deny him a
transfer to a lower-security level facility. Maddox points to nothing in the record as
support. Indeed, the committee comments from the July 31, 2008, review with Maddox
indicate that Maddox had “received 3 minor, and a major CR for fighting” since his last
review. (Affidavit of Wendy Bruns (“Bruns Aff.”), Ex. A (dkt. #44-1) 3.) Regardless,
this fact is not material to Maddox’s retaliation claim for reasons explained in the
opinion that follows.
5

On September 12, 2008, defendant Ericksen recommended Maddox be considered
for a transfer to WSPF-GP. Ericksen avers that he does not specifically recall making this
request, but acknowledges that Maddox’s file confirms that he did so. (Ericksen Aff.
(dkt. #44) ¶ 6.) Defendants treated this as a “lateral” transfer because both GCBI and
WSPF are maximum security institutions. 6
A psychological assessment for WSPF transfer was completed by Dr. Amarante,
and signed on September 12, 2008. 7

Dr. Amarante concluded that there were “no

clinical contraindication to transfer to WSPF” because Maddox “does not meet any of
the specific WSPF exclusion criteria.” (Cummings Aff., Ex. 100 (dkt. #45-1) 48.)
On October 6, 2008, Dr. Cummings saw Maddox in response to a request he had
submitted to the psychological services unit (“PSU”). Her notes from that appointment
provide:

6

Maddox would also dispute this fact, arguing that “WSPF was not run as a normal so
call[ed] maximum.” (Pl.’s Resp. to Defs.’ PFOFs (dkt. #56) ¶ 26.) Maddox is actually
asserting WSPF is run at a higher-level of security than GCBI, even though both are
classified as maximum security. Indeed, several of plaintiffs’ proposed findings of fact
concern additional restrictions to which Maddox was subject at WSPF-GP. (See Pl.’s
PFOFs (dkt. #34) ¶¶ 12-16.) This, too, is addressed later in this opinion.
7

Such evaluations are required before any inmate is placed at WSPF in light of certain
limitations of the facility that may be difficult or even deleterious for those with
particular mental health conditions. (Defs.’ PFOFs (dkt. #42) ¶ 29.) Curiously, the
evaluation was completed the same date as Ericksen’s recommendation that Maddox be
transferred to WSPF-GP. Furthermore, the evaluation itself states that Maddox was
interviewed as part of the evaluation on September 7, 2008. (Affidavit of Maleah
Cummings (“Cummings Aff.”), Ex. A (dkt. #45-1) 47.) From this, it seems that Ericksen
must have made the recommendation (or at least recommended a psychological
evaluation be performed for possible transfer to WSPF-GP) sometime on or before
September 7, 2008, even though the official form recommending Maddox for a transfer is
dated September 12, 2008.
6

Mr. Maddox stated that he was PRC’d to WSPF-GP last
week and stated that he really does not want to go. He stated
that he was WSPF from 1999-2001, and that he has a
current lawsuit against them for AC status while he was there.
He also reported that he has been seeing HSU for a possible
kidney infection and that he has been “stressed” as a result of
the possible transfer. Mr. Maddox also stated that he believes
he was placed on this list for transfer due to retaliation.
(Cummings Aff., Ex. 100 (dkt. #45-1) 8.)

Cummings again concluded that, while

Maddox was “experiencing some situational stressors, there does not appear to be any
clinical contradiction to transfer.” (Id.) Maddox also reported to his social worker that
he did not want to return to WSPF and that he believed the transfer was due to
retaliation.
On October 9, 2008, the PRC, consisting of Stutleen, Bruns, and Mosher, held a
hearing to review the transfer recommendation. According to the Inmate Classification
Report, Maddox stated prior to the hearing that he did
not want to return to WSPF, even though this placement
would be in their GP unit. He was there from 01/12/0007/19/01. . . . He states that he asked PRC to consider a
lateral transfer to a different max this past July and was
denied, citing ‘lack of sufficient reason.’ He would like to
know what has occurred since that PRC to now make a lateral
max transfer necessary.
(Mosher Aff., Ex. A (dkt. #47-1) 4.) Maddox also stated that he believes the transfer is
in retaliation to a lawsuit filed against WSPF and one recently filed against GBCI. (Id.)
On the same date, the PRC cleared Maddox for transfer explaining:
Last PRC 2 ½ months ago recommended further monitoring
of behavior at current site and custody level. At that time
inmate was informed that lateral transfers rarely occur unless
as a trade, and/or requested by Security. This early recall is
based on a referral from Security, to consider inmate for
7

transfer to WSGP. PSU and HSU, along with DOC Central
Office Psychiatrist, have reviewed inmate and no clinical or
medical concerns were noted; therefore he is clear for transfer
to WSPF/GP. There are no contraindications to such a
transfer from a PRC standpoint. It is the understanding of
the committee that the limitations on moving an inmate
without court permission apply if there is an appeal relating
to a federal habeas corpus petition pending in the 7th Circuit
or the US Supreme Court. The documentation provided by
the inmate, or the case #s cited by the Social Worker, do not
appear to meet that criteria, and the committee finds no
evidence that the proposed transfer is retaliatory in nature as
alleged by inmate. 7/09 recall set at last PRC will be retained.
(Mosher Aff., Ex. A (dkt. #47-1) 4.)
Maddox appealed the October 9, 2008, classification decision to classification
supervisor Angela Hansen, who affirmed the original decision, noting “Placement at
WSPG is based on available DOC resources. There is no contraindication to placement
at this site.” (Heise Aff. (dkt. #46) ¶ 23.) Maddox disputes that this decision was based
on “penological goals” and contends that it constituted “atypical deprivation contrary to
ordinary general population from where he was transfer (GBCI).” (Pl.’s Resp. to Defs.’
PFOFs (dkt. #59) ¶ 34.)
Maddox was transferred to WSPF-GP on October 21, 2008, and remained there
until January 28, 2010.

OPINION
To prevail on his First Amendment retaliation claim, Maddox 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

8

Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to take
the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (quoting
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)) (internal quotation marks omitted).
If the plaintiff puts forth sufficient evidence as to these three elements to establish a
prima facie case, the burden then shifts to the defendant to rebut the third element “by
showing that [defendant’s] conduct was not a necessary condition of the harm -- the
harm would have occurred anyway.”

Mays v. Springborn, No. 11-2218, 2013 WL

2504964, at *2 (7th Cir. June 11, 2013) (quoting Greene v. Doruff, 660 F.3d 975, 980
(7th Cir. 2011); citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)).
Defendants do not (nor could they) dispute that filing a lawsuit regarding
conditions of confinement, such as Maddox’s lawsuit against GCBI dentist, dental
hygienist and nurse, is a protected activity under the First Amendment.

(Defs.’

Combined Opening Br. & Opp’n (dkt. #41) 6 n.1 (citing Connick v. Myers, 461 U.S.
138, 147 (1983)).) Defendants also acknowledge (as they must) that transferring an
inmate to a different prison can form the basis of a First Amendment retaliation claim.
(Id. (citing Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996).) Defendants contend,
however, that Maddox has not established a prima facie case because he has failed to put
forth any evidence that defendants in this lawsuit were even aware of Maddox’s dental
care lawsuit or, if aware, were motivated by the lawsuit in transferring to WSPF-GP.
Instead, defendants contend that Maddox was laterally transferred to GCBI for legitimate
reasons concerning bed management across the Department.

9

In support of his motion and in opposition to defendants’ motion, Maddox rests
his case solely on suspect timing; the filing of his lawsuit in June 2008; the PRC’s
rejection of his transfer request in July 2008; and a little over two months later, the
decision to transfer Maddox to WSPF. 8 Based on this, Maddox argues that “the transfer
was in order to retaliate against Maddox for exercising his constitutional rights.” (Pl.’s
Opening Br. (dkt. #33) 5; Affidavit of Cornelius Maddox (dkt. #57) ¶ 4 (“The timing
within this transfer questionable based on the serving of the civil complaint and then the
special referral request of the security director.”).)
In response, defendants focus on the timing as well, arguing that if defendants
wanted to transfer Maddox in retaliation for his filing of the complaint in June 2008,
then they would not have rejected Maddox’s original transfer request in July 2008. But
service did not occur on defendants in that lawsuit until after the complaint was screened
and allowed to go forward. 9 Moreover, the complaint was not screened until September
8, 2008, and a docket entry indicates that a copy of the screening order and the
complaint were sent to GCBI Warden Pollard via U.S. Mail on that same date.
8

The fact that Maddox requested a transfer to a different prison, albeit his first choice
was to a lower-level security prison, shortly before his transfer to WSPF raises some
question as to whether Maddox could demonstrate that his transfer to WSPF constituted
an adverse action “likely to deter First Amendment activity in the future.” Gomez, 680
F.3d at 866. Still, Maddox has put forth evidence -- namely, in the form of his own
affidavit -- that his treatment at WSPF in that prison’s general population was
significantly more restricted than that at GCBI. Accordingly, the court’s decision to
grant summary judgment to defendants solely turns on the causation element.

The court assumes that a docket entry of a new lawsuit alone on September 8 would not
have been enough to tip off the DOC, the defendants in that case or their counsel, much
less the named defendants in this suit, that Maddox was attempting to bring suit, but if
DOC and its counsel have contrary information, the court would expect that to have
been or be disclosed.
9

10

According to defendants’ proposed facts, Ericksen formally initiated the transfer process
by recommending Maddox for transfer four days later on September 12, 2008. Based on
these dates alone, therefore, Pollard and other officials at GCBI -- possibly including the
defendants in this action -- could have become aware of Maddox’s lawsuit a few days
before recommending his transfer.
There is an additional interesting timing coincidence that defendants fail to
address. On October 8, 2008, Judge Griesbach vacated part of the screening order and
reinstated Warden Pollard and HSU Manager Greenwood as defendants. The PRC met
the following day on October 9, 2008, and approved Maddox for transfer.
Still, there is also the fact that Maddox’s transfer process was begun on or before
September 7, 2008, the date Dr. Amarante interviewed Maddox to evaluate his mental
health for fitness to transfer to WSPF.

Based on this, Maddox likely was at least

recommended for transfer by security before the screening order for Maddox’s 2008
lawsuit was issued.
Given that the actual timing of Maddox’s transfer to WSPF-GP and significant
developments in his dental health lawsuit ultimately occurred in the same, narrow period
of time, the defendants’ discussion of the timing -- focusing solely on the date Maddox
filed his complaint -- is at best overly simplistic, although the facts and reasonable
inferences from the facts as to the timing here probably cut against plaintiff. Even if this
were not so, it is well-established that timing alone is not enough for Maddox’s claim to
survive summary judgment. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th

11

Cir. 2008) (“[M]ere temporal proximity is not enough to establish a genuine issue of
material fact.” (internal quotation omitted)).
In the end, overlapping timing is all Maddox can offer. There is no proof of cause
and effect, either by proof the transfer was initiated only after his lawsuit or even that the
defendants (who made the final transfer decision) were aware of the lawsuit until
Maddox himself told them about it as part of his challenge to the transfer on retaliation
grounds. 10 On the contrary, the record demonstrates that the DOC opened up 50 beds
at WSPF-GP to address bed management issues at certain prisons nine days before
Ericksen’s “official” recommendation of Maddox’s transfer.
Evidence of the actual defendants’ initiating a transfer upon personal knowledge
of a lawsuit or of a pattern of transferring inmates who had filed lawsuits might push this
case past summary judgment, but no such evidence has been offered.

Accordingly,

Maddox failed to put forth sufficient evidence to demonstrate that his dental care lawsuit
was a motivating factor in defendants’ decision to transfer him to another prison. Even if
he had met his burden, defendants have responded with evidence that the transfer was
for a legitimate penological reason -- to address bed management issues -- and Maddox
failed to “produce evidence upon which a rational finder of fact could infer that the

Maddox’s decision to advise defendants of his other lawsuit as part of his challenge to the
initial transfer decision cannot by itself constitute proof of advance knowledge, not only
because it is contradicted by the fact that the transfer decision had already been begun,
but also because it would effectively give inmates veto power over all transfer decisions
merely by bringing and giving notice of another lawsuit and then challenging any act.
10

12

defendant’s proffered reason is a lie.” Zellner v. Herrick, 639 F.3d 371, 379 (7th Cir.
2011). The court, therefore, will grant defendants’ motion for summary judgment. 11

ORDER
IT IS ORDERED that:
1) Plaintiff Cornelius Maddox’s motion for summary judgment (dkt. #32) is
DENIED;
2) Defendants Peter Ericksen, Mark S. Stutleen, Wendy Bruns, Dennis Mosher,
Maleah Cummings, and Maria Amarante’s motion for summary judgment
(dkt. #40) is GRANTED; and
3) The clerk of the court is directed to enter judgment in favor of defendants and
close this case.
Entered this 24th day of July, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

11

Because of this decision, the court need not address defendants’ argument concerning
Dr. Cummings specifically. (See Defs.’ Combined Br. (dkt. #41) 9-10.)
13