Gruenberg, Darrin v. Tetzlaff, Lt. et al
Filing
32
ORDER denying 10 Motion for Reconsideration; granting in part and denying in part 17 Motion to Strike; denying 19 Motion for Sanctions; denying 22 Motion for Assistance in Recruiting Counsel; denying 25 Motion for Assistance in Recruiting Counsel. Signed by District Judge William M. Conley on 7/29/2014. (nln),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARRIN GRUENBERG,
Plaintiff,
OPINION & ORDER
v.
13-cv-095-wmc
LT. TETZLAFF,
Defendant.
In this civil action brought under 42 U.S.C. § 1983, plaintiff Darrin Gruenberg was
granted leave to proceed on conditions of confinement and harassment claims under the
Eighth Amendment against defendant Lieutenant Tetzlaff, a member of prison staff at the
Columbia Correctional Institution (CCI). Gruenberg now moves for reconsideration on one
additional, unsuccessful proposed claim challenging the constitutionality of Wisconsin
Administrative Code Section DOC 303.71. (Dkt. #10.) Gruenberg also moves to strike
defendant’s affirmative defenses (dkt. #17); moves for Rule 11 sanctions (dkt. #19); and
brings two new motions for assistance in recruiting counsel (dkt. ##22, 25). The court will
address each motion in turn.
I. Motion for Reconsideration
The Wisconsin Administrative Code allows a security supervisor to order any inmate
in segregated status to be placed in controlled segregation who exhibits disruptive or
destructive behavior. Wis. Admin. Code § DOC 303.71(1). Even so, the institution is also
required to provide an inmate in controlled segregation with certain amenities, such as a
clean mattress and adequate heating, while “maintain[ing] close control of all property”
when an inmate is acting in a disruptive manner. Id. at §§ DOC 303.71(2), (3).
In his original complaint, Gruenberg alleged that this rule is unconstitutionally
vague, because it allows supervisors to apply the rule arbitrarily in circumstances that do not
justify such confinement. As noted in the screening order, the void-for-vagueness doctrine
states that a rule that “either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926). The court found no merit in Gruenberg’s argument, given that
similar statutes prohibiting disorderly conduct have been upheld as constitutional against
vagueness challenges. In his motion for reconsideration, Gruenberg now argues that those
cases are distinguishable because citizens who are determined to have engaged in disorderly
conduct are not subject to the hardship of placement in a cell with nothing at all. But this
distinction does not render § DOC 303.71 unconstitutionally vague.
The punishment
imposed on Gruenberg has nothing to do with whether the rule itself is so vague that
offenders cannot determine what conduct would violate that rule.
Gruenberg also alleges that § DOC 303.71 is unconstitutional because it does not
serve a meaningful or appropriate penological and medical objective. The court sees no
error in its conclusion that the controlled segregation envisioned by that rule is valid, since
segregation of disruptive prisoners plainly serves the goals of an orderly prison, as does the
ability to maintain close control of property serves security and property interests.
Nevertheless, Gruenberg argues in his motion for reconsideration that the court has
misapprehended his claim and that he is actually alleging that there is no legitimate prison
objective in placing prisoners in controlled segregation with nothing, when those prisoners
have engaged only in trivial conduct. Not only does this have no bearing on Gruenberg’s
2
challenge to § DOC 303.71 as written, but as previously noted, § DOC 303.71 actually
requires that prisoners in controlled segregation be given amenities like a clean mattress,
adequate heat, adequate clothing and essential hygiene supplies. What Gruenberg is really
alleging is that, contrary to § DOC 303.71, he was placed in a cell without those things,
which constituted denial of the “minimal civilized measure of life’s necessities.” Scarver v.
Litscher, 371 F. Supp. 2d 986, 1003 (W.D. Wis. 2005).
While those allegations may
support an Eighth Amendment conditions-of-confinement claim, Gruenberg has already
been granted leave to proceed on that claim. (See Opinion & Order (dkt. #10) 4-5.)
Though he does not explicitly challenge the court’s denial of leave to proceed on his
due process claim, in one paragraph of his motion to reconsider, Gruenberg appears to argue
error in that conclusion as well. Gruenberg states that whether a deprivation of liberty is
short-term is irrelevant, presumably to argue that his relatively short segregation is sufficient
to allege a liberty interest. The Seventh Circuit has stated, however, that in the context of a
due process claim premised on disciplinary segregation, a liberty interest may arise “if the
length of segregated confinement is substantial and the record reveals that the conditions of
confinement are unusually harsh.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 698 (7th
Cir. 2009) (emphasis added). Both the duration and the conditions of segregation must,
therefore, be considered in a due process analysis. Id. (citing Bryan v. Duckworth, 88 F.3d
431, 433-34 (7th Cir. 1996), abrogated on other grounds, Diaz v. Duckworth, 143 F.3d 345, 346
(7th Cir. 1998)). As the court recognized in its previous order in this case, the conditions
Gruenberg alleges were severe, but the duration of his confinement was short -- just nine
hours. Under Seventh Circuit precedent, that is not enough to allege a liberty interest. See,
e.g., Townsend v. Fuchs, 522 F.3d 765, 771-72 (no liberty interest based on 59 days in
3
administrative segregation). As in Townsend, “[t]he issue of the cell conditions in [controlled
segregation] is best analyzed as a claim brought under the Eighth Amendment.” Id. at 772.
Again, Gruenberg has been given leave to proceed on that claim, and the court sees no error
in the determination that he may not also proceed under the Fourteenth Amendment. See
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Conner, 490 U.S. 386, 395
(1989)).
II. Motion to Strike Defenses
Gruenberg also asks the court to strike certain of Tetzlaff’s defenses pursuant to Fed.
R. Civ. P. 12(f), which provides in relevant part that “[t]he court may strike from a pleading
an insufficient defense.” Such a motion is appropriate only where “the defense is frivolous
or clearly presents no bona fide issue of fact or law.” Prudential Ins. Co. of Am. v. Marine
Nat’l Exchange Bank, 55 F.R.D. 436, 438 (E.D. Wis. 1972). Before granting a motion to
strike, “the Court must ‘be convinced that there are no questions of fact, that any questions
of law are clear and not in dispute, and that under no set of circumstances could the defense
succeed.’” In re Midway Airlines, Inc., 175 B.R. 239, 242 (Bankr. N.D. Ill. 1994) (applying
Fed. R. Civ. P. 12(f) (quoting Lirtzman v. Spiegel, Inc., 493 F. Supp. 1029, 1031 (N.D. Ill.
1980)).
Gruenberg seeks to strike eight of nine articulated “defenses” and all three of
defendant’s affirmative defenses, though he only offers argument on some of them.1 First,
Gruenberg challenges the defense that all or a portion of his complaint fails to state a claim
on which relief can be granted, arguing that the court has essentially concluded by screening
his complaint that he does state such a claim. Tetzlaff responds that this defense is intended
1
Those defenses on which Gruenberg does not offer argument will obviously not be stricken.
4
merely to preserve his ability to move for dismissal, either on the merits or based on a
failure to exhaust administrative remedies.
Tetzlaff is correct that “certain affirmative
defenses like failure to exhaust administrative remedies . . . or qualified immunity may be
argued in a motion to dismiss.” Seabolt v. Champagne, No. 05-C-1240, 2006 WL 3192511,
at *2 (E.D. Wis. Nov. 2, 2006). By asserting this defense, Tetzlaff does no more than
preserve his right to bring a motion to dismiss, and the court cannot say such a motion
would be frivolous on its face. See id. Indeed, Tetzlaff has never had an opportunity to be
heard on this argument, and the court would be remiss to conclude he cannot prevail based
only on a one-sided screening order. Thus, the motion to strike defense (1) will be denied.
Next, Gruenberg challenges defense (2), which states that this action “is subject to
the requirements, provisions, terms, conditions, and limitations of Wis. Stat. § 893.82” to
the extent it states any state law claims. At the present time, Gruenberg has not been
granted leave to proceed on any state law claims in this action. Thus, he is correct that this
defense has no bearing on the present suit and can be stricken.2
Gruenberg also challenges defense (4), which alleges that Tetzlaff “acted in good
faith.”
While Gruenberg is correct that the question of good faith is irrelevant in the
qualified immunity context, see Elliot v. Thomas, 937 F.2d 338, 344 (7th Cir. 1991), as
Tetzlaff points out, his state of mind and whether he acted in good faith is certainly relevant
to Gruenberg’s Eighth Amendment harassment claim, since that claim requires Gruenberg
to prove that Tetzlaff acted to humiliate him and inflict psychological pain. See Calhoun v.
In the event Gruenberg were granted leave to amend his pleadings to add state law claims, Tetzlaff
would, of course, have the opportunity to answer the amended pleading and could at that time assert
Wis. Stat. § 893.82 as a defense.
2
5
DeTella, 319 F.3d 936, 939 (7th Cir. 2003). While perhaps unnecessary, since it is already
in issue, the motion to strike this defense will, therefore, be denied.
Gruenberg’s next challenge is to defense (6), which states that “[n]o answering
defendant can be found liable for the actions of any other under a theory of respondeat
superior.” Here, Gruenberg is correct that he has been granted leave to proceed only on
claims implicating Tetzlaff for conduct in which he was directly involved. This defense,
therefore, presents no bona fide issue of fact or law in this suit as currently pled, and so the
court will also strike defense (6).
Gruenberg finally challenges Tetzlaff’s three asserted affirmative defenses: Eleventh
Amendment immunity, qualified immunity, and failure to exhaust. The latter two defenses
will not be stricken: both present bona fide questions of law and fact, such as whether
Tetzlaff actually took the actions pled in the complaint, whether those actions violated
clearly established law and whether Gruenberg properly exhausted all his claims in this suit.
The former, however, is essentially irrelevant, as Gruenberg has only sued Tetzlaff in his
individual capacity. Therefore, affirmative defense (1) will be stricken.3
III. Motion to Impose Sanctions
Pursuant to Fed. R. Civ. P. 11, Gruenberg also asks the court to impose sanctions on
defendant for his purported failure to respond to his motion to strike. However, the record
shows that defendant did timely file a brief in opposition.
(See dkt. #18.)
Based on
correspondence from defendant’s counsel, it appears that defendant may have forgotten to
send a copy of that filing to Gruenberg but has now done so. (See dkt. #21.) Given that no
As above, if Gruenberg were to amend his pleadings to allege claims against Tetzlaff in his official
capacity, Tetzlaff would then have the opportunity to answer and assert this defense.
3
6
reply brief was permitted, Gruenberg’s late receipt of the brief in opposition is harmless and
does not justify imposing sanctions on defendant.
In any event, sanctions would not be appropriate under Rule 11 even if defendant
had failed to respond to Gruenberg’s motion.
By its very terms, Rule 11 permits the
imposition of sanctions when an attorney has “present[ed] to the court a pleading, written
motion, or other paper” that does not comply with the requirements of Fed. R. Civ. P.
11(b). The failure to file a brief is entirely outside the Rule’s purview, and so Gruenberg’s
motion for sanctions is denied.
IV. Assistance in Recruiting Counsel
Finally, as in companion cases 13-cv-089 & -453, Gruenberg has filed two motions
for assistance in recruiting counsel. He has included with his motion four rejection letters
from attorneys, demonstrating that he has met this court’s requirement to “ma[k]e a
reasonable attempt to obtain counsel” on his own before seeking assistance. Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007). The next question is “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff's capacity as a layperson to
coherently present it to the judge or jury himself.” Id. at 655. This inquiry is a practical
one, encompassing factors like the plaintiff’s literacy, communication skills and litigation
experience; evidence surrounding the plaintiff’s intellectual capacity and psychological
history; and the difficulty of the claims at issue. See id. at 655-56.
Gruenberg admits that he is somewhat versed in the law. His filings demonstrate as
much, citing to relevant case law and evincing an understanding of the Rules of Civil
Procedure.
In fact, he has personally litigated numerous cases pro se during his
7
incarceration, as the Seventh Circuit recognized in affirming a decision of the District Court
for the Eastern District of Wisconsin denying his request for counsel.
Gempeler, 697 F.3d 573, 581-82 & n.9 (7th Cir. 2012).
See Gruenberg v.
Gruenberg has submitted no
evidence of psychological or other health problems that may prevent him from litigating this
case. Nor does it appear that his Eighth Amendment claims are particularly complex -- they
are premised not on complicated medical evidence but instead on conditions of confinement
and alleged harassment.
Rather, Gruenberg’s motions focus almost entirely on his lack of funds and a
consequent inability to purchase materials he needs to litigate this case. In June of 2014,
the Department of Corrections Business Office denied Gruenberg’s request for legal loan
funding.
(See dkt. #22-1.)
Gruenberg now contends that he cannot litigate this case
because he does not have the money to do so. As a specific example, he argues that he
receives only a single free first class mailing from the DOC per week, which is “inherently
insufficient.”
Gruenberg’s penurious circumstances do not by themselves justify the appointment
of pro bono counsel. “[I]t is this court’s role to appoint counsel when the difficulty of the
case exceeds the particular plaintiff’s capacity to coherently present it to the judge or jury
himself, not when the plaintiff could coherently present the case but would prefer counsel as
a funding mechanism for the litigation.” Akright v. Capelle, No. 07-cv-0625-bbc, 2008 WL
4279571, at *1 (W.D. Wis. Sep. 15, 2008); see also Lindell v. Schneiter, No. 06-C-608-C,
2007 WL 5517463, at *4 (W.D. Wis. Aug. 31, 2007) (denying request to appoint counsel
based on claim that plaintiff lacked the money he needed to fund the suit); Williams v.
Berge, No. 02-C-0010-C, 2002 WL 32350026, at *8 (W.D. Wis. Apr. 30, 2002) (“It would
8
be improper to appoint counsel solely for the purpose of shifting petitioner’s costs to a
lawyer.”).
Gruenberg offers no other reason why he needs the assistance of counsel to
prosecute this matter, nor can the court discern one. As already noted above, Gruenberg
appears eminently capable of litigating this suit on his own. Indeed, even his limited budget
does not seem to impair his ability to litigate multiple state and federal lawsuits at the same
time. (See, e.g., Gruenberg v. Bittleman, No. 13-cv-453-wmc; Gruenberg v. Casper, No. 13-cv089-wmc.)4 In light of these facts, the court will deny his request for counsel.
To the extent that Gruenberg’s motion takes issue with the DOC’s denial of legal
loan funding itself, he should be aware that that denial is not a determination in which this
court will interfere. The Seventh Circuit has previously held that an incarcerated litigant
has “‘no constitutional entitlement to subsidy,’ Lewis v. Sullivan, 279 F.3d 526, 528 (7th
Cir. 2002), to prosecute a civil suit; like any other civil litigant, he must decide which of his
legal actions is important enough to fund.” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th
Cir. 2003). Thus, determinations regarding the extension of credit under Wis. Adm. Code
§ DOC 309.51 are “a matter strictly between [the litigant] and Wisconsin, and not any
business of the federal courts.” Id. Based on Lindell, this court has previously declined to
interfere in prison officials’ decisions with respect to the legal loan limit. See, e.g., Akright,
2008 WL 4279571, at *1. Should Gruenberg conclude that “the limitations on his funds
prevent him from prosecuting his case with the full vigor he wishes to prosecute it, he is free
to choose to dismiss it voluntarily and bring it at a later date[.]”
Williams, 2002 WL
32350026, at *8.
Additionally, the court would be remiss not to point out, as the Seventh Circuit has recognized,
that Gruenberg had, as of 2012, “filed at least six cases pro se in state and federal court alleging
various violations during his incarceration.” Gruenberg, 697 F.3d at 582 n.9.
4
9
ORDER
IT IS ORDERED that:
1. Plaintiff Darrin Gruenberg’s motion for reconsideration (dkt. #10) is DENIED.
2. Plaintiff’s motion to strike affirmative defenses (dkt. #17) is GRANTED in part
and DENIED in part consistent with the opinion above.
3. Plaintiff’s motion for Rule 11 sanctions (dkt. #19) is DENIED.
4. Plaintiff’s motions for assistance in recruiting counsel (dkt. ##22, 25) are
DENIED.
Entered this 29th day of July, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?