Parrish, Kenneth v. McCulloch, Deborah et al
ORDER granting 15 Motion for Summary Judgment; denying 27 Motion to Strike. The clerk of court is directed to enter judgment in favor of defendants and close this case. Signed by District Judge Barbara B. Crabb on 3/17/2014. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - KENNETH PARRISH,
OPINION AND ORDER
DEBORAH McCULLOCH and
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Kenneth Parrish, who is confined at the Sand Ridge Secure Treatment
Center, is proceeding on a claim that defendants Deborah McCulloch and William Parker
violated his right of access to the courts by interfering with his appeal to the Court of
Appeals for the Seventh Circuit. Both sets of parties filed motions for summary judgment,
but I have already denied plaintiff’s motion, dkt. #24, because he failed to follow this court’s
rules, Procedure to Be Followed on Motions for Summary Judgment. Defendants’ motion,
dkt. #15, has been briefed and is ready for review.
At the outset, I note that plaintiff filed a motion that can be construes as a request
to strike the amended affidavit of defendant Parker, dkt. #27, on the ground that the
amended affidavit differs significantly from the original with respect to the sixth paragraph.
A review of the two affidavits shows that the only difference between the two paragraphs is
that the amended affidavit leaves out a statement by Parker that he was unsure whether
plaintiff or another individual notified him of plaintiff’s complaint. Dkts. ##17, 23.
Because this amendment has no effect on defendants’ motion for summary judgment, I will
deny plaintiff’s motion.
Second, I note that plaintiff’s response brief contains a section entitled “Proposed
Findings of Fact,” but he does not recite individually numbered findings of fact with
citations to evidence or respond to defendants’ proposed findings of fact, as required by this
court’s rules. Rather, the section is primarily legal argument. He includes a few factual
statements but they are not supported by citations to evidence in the record. He also alleges
that defendants “fabricated evidence” in this case, but he does not support this allegation
with any evidence or explain how the alleged fabrication affects his case.
Because plaintiff has failed to properly dispute defendants’ proposed findings of fact,
I must treat them as undisputed. Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565,
568 (7th Cir. 1992); Procedure to Be Followed on Motions for Summary Judgment, at II.C
(“Unless the responding party puts into dispute a fact proposed by the moving party, the
court will conclude that the fact is undisputed.”). From these undisputed facts, I conclude
that defendants are entitled to summary judgment.
From defendants’ proposed findings of fact and the record, I find the following facts
to be undisputed.
A. The Parties
Plaintiff Kenneth Parrish is confined at the Sand Ridge Secure Treatment Center
pursuant to a civil commitment.
Defendant Deborah McCulloch is the institution
superintendent at Sand Ridge. Defendant William Parker was a supervising officer at Sand
Ridge during the relevant time period. (He has since retired.) Although both defendants
have supervisory authority, neither was directly or personally involved in decisions made in
the mailroom about patient mail and neither knew about the mailroom incident described
below until after the mail had been sent.
B. Plaintiff’s Habeas Corpus Petition
After serving a sentence for sexual assault, plaintiff was civilly committed to the Sand
Ridge Secure Treatment Center on the ground that he had a diagnosis of borderline
personality disorder and antisocial personality disorder.
Later, plaintiff’s psychiatrist
eliminated borderline personality disorder from his diagnosis, leaving only antisocial
personality disorder. After that diagnostic change was made, plaintiff filed a petition for a
writ of habeas corpus in the District Court for the Eastern District of Wisconsin, contending
that he could not be subject to commitment unless he had diagnoses of at least two
psychological problems. The court held that plaintiff had not met his burden of proof but
because it believed that the case law on this question was unclear, it certified his appeal to
the Court of Appeals for the Seventh Circuit. Parrish v. McCulloch, No. 11-C-419 (E.D.
Wis. Dec. 7, 2011). Plaintiff’s notice of appeal was due January 6, 2012.
C. Mailroom Incident
On January 3, 2012, plaintiff was paid $15.00, creating a balance of $15.17 in his
institution trust account. On that day, he also made a disbursement request for the mailing
of a letter at a cost of $0.44. The next day, January 4, plaintiff filed a disbursement request
for the postage for his notice of appeal and dropped off the mailing. He asked the mailroom
to determine the amount of postage required for “priority mail,” but he did not mark the
request as “urgent” or otherwise indicate that the letter should be mailed promptly. (His
notice of appeal deadline was January 6.) On the same day, he went to the canteen and
placed an order for $10.34.
The disbursement request for the canteen and for mailing the letter on January 3 were
processed first, leaving his trust account balance at $4.39. His notice of appeal required
$4.95 worth of postage. Because plaintiff did not have adequate funds for postage, the
mailroom held the notice of appeal until January 23, 2012, when the balance in plaintiff’s
account was sufficient to cover the mailing costs. (Plaintiff disputes this fact because he says
that January 23 was not a payday on the payroll calendar, but his account statement
indicates that the credit he received on January 23 was a “correction,” presumably for a
previous payday.) During this delay, no one at Sand Ridge notified plaintiff that his mail
had not been sent. Plaintiff did not check up on whether his mail had been sent.
As a result of the delay, plaintiff’s notice of appeal of his petition for habeas corpus
was filed late in the District Court for the Eastern District of Wisconsin. The district court
denied plaintiff’s motion for an extension of time to file the notice of appeal because he
failed to make a coherent argument about his delay. Parrish v. McCulloch, No. 11-C-419
(E.D. Wis. February 8, 2012). Plaintiff appealed this decision to the Court of Appeals for
the Seventh Circuit, arguing that his notice of appeal was timely under the mailbox rule,
which considers timely any mail deposited in the prison legal system by the deadline, so long
as “first-class postage has been prepaid.” Fed. R. App. P. 4(c)(1). Defendant McCulloch
wrote the court of appeals, explaining that plaintiff’s notice of appeal had been held in the
mailroom because he had insufficient funds for postage. On September 26, 2012, the court
of appeals dismissed plaintiff’s appeal as untimely. Parrish v. McCulloch, 481 F. App’x 254,
255 (7th Cir. 2012). It held that because plaintiff deposited his notice of appeal for mailing
without a stamp and without sufficient funds or a request for a loan, the mailbox rule did
not apply and plaintiff’s notice of appeal was untimely.
Plaintiff filed two grievances at Sand Ridge about the incident. Upon review of those
complaints, Sand Ridge adopted a policy of notifying patients when their mail is held for
lack of postage.
D. Sand Ridge Policies and Procedures
When a patient wants something mailed at Sand Ridge, he must take the item to the
mailroom and attach either the necessary postage or a disbursement request from his trust
account for the amount of postage. If a patient has insufficient funds for sending legal mail,
he may request a legal loan to cover the costs. In this instance, plaintiff did not request a
legal loan. Patients receive account statements every Saturday and may request information
on their account balance at any time (though the balance is updated only on Tuesdays and
Wednesdays). Although plaintiff had information about his account, he took no action on
the disbursement request for his mailing.
Confined or detained persons have a constitutional right to “meaningful access to the
courts” to pursue post conviction remedies and to challenge the conditions of their
confinement. Bounds v. Smith, 430 U.S. 817, 821-22 (1977); Lehn v. Holmes, 364 F.3d
862, 865-66 (7th Cir. 2004). Plaintiff must prove that defendants’ interference caused an
“actual injury,” which means that it must have caused plaintiff to lose a meritorious claim
or the chance to seek particular relief. Lewis v. Casey, 518 U.S. 343, 346-348 (1996);
Christopher v. Harbury, 536 U.S. 403, 414 (2002); Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006). The named defendants must have been personally responsible for the
constitutional violation; a plaintiff cannot rely on supervisory or respondeat superior liability
to make out a constitutional claim. Morfin v. City of East Chicago, 349 F.3d 989, 1001
(7th Cir. 2003).
Furthermore, plaintiff must show that defendants were not simply
negligent when they interfered with his rights. Harrell v. Cook, 169 F.3d 428, 432 (7th Cir.
1999) (“It is well established that negligent conduct by a government official is insufficient
to support a claim under § 1983.”).
Plaintiff argues that because his appeal was denied as a result of its delay in Sand
Ridge’s mailroom, he suffered an actual injury as a result of the employees’ deliberate actions
to deny him access to the courts. Defendants argue that summary judgment should be
granted in their favor for four reasons: (1) defendants were not personally responsible for the
alleged interference with plaintiff’s legal mail; (2) those who were responsible were merely
negligent in handling plaintiff’s mail; (3) plaintiff’s claim is barred by Heck v. Humphrey,
512 U.S. 477 (1994); and (4) in any case, defendants have qualified immunity for their
actions. Because I conclude that defendants are correct as to the first and second arguments,
I need not consider the other two.
Defendants say that although they had supervisory responsibilities at Sand Ridge,
neither one of them was personally responsible for the handling of patients’ mail, so they
cannot be liable under § 1983. Morfin, 349 F.3d at 1001 (“[Police chief] cannot be liable
for any constitutional violations committed by his officers simply by virtue of his supervisory
role.”); Hendrix v. Evans, 972 F.2d 351 (7th Cir. 1992). Although defendants supervised
mailroom employees and defendant Parker had specific responsibility for security in the
mailroom, they say they were unaware of the situation involving plaintiff’s mail until after
the mail had been sent and they did not condone the decision on how to handle plaintiff’s
mail. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (plaintiff must show
that supervisor had knowledge of unconstitutional act or of risk that act will occur); Morfin,
349 F.3d at 1006 n.16 (even if supervisor knew of violation, plaintiff must show that she
condoned it or failed to prevent it).
Furthermore, defendants say that to be liable under § 1983, they must have intended
that plaintiff would suffer a constitutional injury and that they did not have this intention.
Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004) (“an allegation of simple negligence will
not support a claim that an official has denied an individual of access to the courts”); cf.
Gregory v. Nunn, 895 F.2d 413, 415 (7th Cir. 1990)(acknowledging that plaintiff must
plead that defendants’ actions were intentional in order to make out access-to-courts claim).
As evidence, they note that when Sand Ridge staff members became aware of plaintiff’s
situation, defendant McCulloch sent a letter to the court of appeals explaining what had
happened and acknowledging that plaintiff did not have the opportunity to remedy his
situation because it was not communicated to him. Moreover, Sand Ridge adopted a policy
of communicating with patients about their postage after plaintiff’s incident in order to
prevent a similar incident from happening again.
Although plaintiff’s arguments are difficult to follow, he seems to argue three things:
(1) defendant Parker is responsible because he supervised the mailroom; (2) defendant
McCulloch can be held responsible because she drafted a letter to the court of appeals about
the mailroom incident; and (3) both defendants allowed the practice of delaying mail for lack
of postage to occur, so they had personal responsibility and intent. I will consider these
arguments in turn.
First, it is well settled that supervision alone is insufficient by itself to establish
liability under § 1983, Morfin, 349 F.3d at 1001, and plaintiff has not alleged that either
defendant condoned or facilitated the decision to hold his mail. Palmer, 327 F.3d at 594
(“Although direct participation is not necessary, there must at least be a showing that the
Sheriff acquiesced in some demonstrable way in the alleged constitutional violation.”).
Second, McCulloch’s letter to the court explaining the reasons for the delay in
plaintiff’s notice of appeal does not mean that she conceded she was personally responsible
for the delay in the mail room. She may write letters on behalf of Sand Ridge without
conceding or implying her own liability.
Plaintiff’s third argument warrants more discussion. If I understand it correctly,
plaintiff is arguing that defendants can be held liable for the practice of allowing the mail to
be retained until the prisoner has sufficient funds in his account to pay the postage. In
support of this argument, he cites Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir.
1988), a case in which the Court of Appeals for the Eleventh Circuit held that the policy of
allowing prisoner mail to accumulate before it was delivered to prisoners was
unconstitutional. Such a practice caused a delay in the receipt of legal mail, resulting in the
prisoners’ loss of access to the courts.
In that case, the court seemed to say that
responsibility and intent could be inferred from the practice of deliberately delaying mail
However, Gramegna does not help plaintiff.
That case does not stand for the
proposition that either McCullough or Parker can be sued in this case. In fact, the Eleventh
Circuit dismissed Gramegna’s suit against the warden he had no role in the delay of the mail.
In addition, it is not clear that the Court of Appeals for the Seventh Circuit would agree with
the suggestion in Gramegana that the individual in the mail room responsible for the
processing of mail could be held responsible for the plaintiff’s failure to receive notice of an
adverse decision in his case. In Gregory, 895 F.2d at 415 n.2, the court acknowledged that
“there may be a distinction between an intentional act by prison officials to impede a
prisoner’s access to the courts and an intentional act that results in an impediment to court
See also Crawford-El v. Britton, 951 F.2d 1314, 1319 (D.C. Cir. 1991)
(“Accordingly, to withstand Britton’s motion to dismiss, Crawford–El must have made
specific nonconclusory allegations showing that Britton knew his property contained legal
materials relating to pending cases and that she diverted his property with the intention of
interfering with his litigation . . . [Otherwise,] a prisoner could easily transform almost any
negligent delay in the transfer of his property (which would not otherwise violate the
Constitution . . . ) into a constitutional tort if the property contained active litigation
papers.”) (internal citation omitted) (emphasis added).
In any event, plaintiff has not properly alleged or shown that defendants condoned
or allowed a practice of holding legal mail. Defendants have not proposed findings of facts
on this subject, except to describe the policy they adopted after plaintiff’s incident, and
plaintiff did not allege any facts implying that the holding of legal mail was a policy, much
less adduce any evidence to support the allegation. Moreover, he did not adduce any
evidence to show that the deliberate retention of mail happened to anyone else at Sand
Ridge or that defendants were aware of the supposed practice. Without these facts, plaintiff
cannot prevail on his argument. He has not shown that a reasonable jury could conclude
that defendants were personally responsible for his injury or that they intended to cause him
harm. Accordingly, defendants are entitled to summary judgment.
Plaintiff brings up a number of other issues in his brief in response to defendant’s
motion for summary judgment, including sections he titles “malicious prosecution claim,”
“conspiracy claim,” “freedom of expression,” and “equal protection of the law.” Plaintiff may
be attempting to add new claims against defendants. If so, he will be denied the opportunity
because it is far too late in the course of litigation for plaintiff to amend his complaint to add
new claims. Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“A plaintiff
may not amend his complaint through arguments in his brief in opposition to a motion for
summary judgment.”). Denil v. deBoer, Inc., 748 F. Supp. 2d 967, 976 (W.D. Wis. 2010),
aff'd, 650 F.3d 635 (7th Cir. 2011) (“[D]istrict courts may reject claims raised for the first
time at summary judgment and consider only those claims for which the defendants had
IT IS ORDERED that
1. The motion for summary judgment filed by defendants Deborah McCulloch and
William Parker, dkt. #15, is GRANTED.
2. Plaintiff Kenneth Parrish’s motion to strike defendant Parker’s affidavit, dkt. #27,
The clerk of court is directed to enter judgment in favor of defendants and close this
Entered this 17th day of March, 2014.
BY THE COURT:
BARBARA B. CRABB
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