Lindell, Nate v. Esser, Dane et al
Filing
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ORDER denying plaintiff Nathaniel A. Lindell's request for leave to proceed with his amended complaint (dkt. # 12 ). Within thirty days of the date of this order, Lindell may file an amended complaint to cure deficiencies regarding his claim th at Lieutenant Esser denied him access to courts by confiscating his paperwork on July 25, 2012, and by confiscating a letter to Sean Riker on October 28, 2012. If Lindell does not file an amended complaint as directed, this case will be dismissed without further notice. Signed by District Judge William M. Conley on 3/2/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
NATE A. LINDELL,
Plaintiff,
OPINION AND ORDER
v.
13-cv-563-wmc
LIEUTENANT DANE M. ESSER,
Defendant.
Plaintiff Nate A. Lindell has filed a proposed civil action pursuant to 42 U.S.C.
§ I 983, alleging constitutional violations in connection with the conditions of his
confinement in the Wisconsin Department of Corrections. Although Lindell made an initial
partial payment of the filing fee as required by the Prison Litigation Reform Act ("PLRA"),
28 U.S.C. § 19!5(b), the court dismissed his complaint initially for failure to comply with
federal pleading rules regarding the joinder of multiple parties and unrelated claims set forth
in Fed. R. Civ. P. 18 and 20. With leave of the court, Lindell has since filed an amended
version of his complaint.
Before Lindell may proceed under the federal in Jonna pauperis
statute, however, the court must again screen this amended complaint pursuant to the PLRA,
dismissing any portion that is legally frivolous, malicious, fails to state a claim upon which
relief may be granted or asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. § l 915A. In addressing any pro se litigant's pleadings,
the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S.
519, 521 (1972). After reviewing the amended pleading under this lenient standard, the
court must deny him leave to proceed for reasons set forth below.
SUMMARY OF PLAINTIFF'S PROPOSED CLAIMS
Lindell is presently confined by the Bureau of Prisons at the United States
Penitentiary located in Coleman, Florida. At all times relevant to the amended complaint,
Lindell was incarcerated by the Wisconsin Department of Corrections ("WDOC") at the
Wisconsin Secure Program Facility ("WSPF") in Boscobel, where the named defendant,
Lieutenant Dane M. Esser, is employed as a correctional officer.
The amended complaint apparently stems from a previous lawsuit that Lindell filed in
2005 against Esser and 31 other officers and officials employed by WDOC. See Lindell v.
O'Donell, et al., 05-cv-4-bbc (W.D. Wis.) (the "2005 lawsuit").
In that lawsuit, Lindell
specifically alleged that Esser violated his rights under the Eighth Amendment by "throwing a
meal tray" at him and then retaliating against him by filing false disciplinary charges. On
October 24, 2005, this court granted summary judgment in defendants' favor on most of
Lindell's claims, including the retaliation allegations against Esser. On March 3, 2006, a jury
returned a verdict in favor of defendants on all of Lindell's remaining claims.
In this lawsuit, Lindell now claims that Esser retaliated against him because of this
2005 lawsuit or otherwise interfered with his rights under the First Amendment on seven,
separate occasions. What follows is a brief summary of each instance of alleged retaliation or
interference.
1. First Incident
On November 24, 2011, Lindell slid a manila envelope containing an "original piece
of short fiction" under his cell door for placement in outgoing mail. Lindell then changed his
mind about sending it. As he attempted to pull the envelope back into his cell, Esser seized it
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and refused to return it. Characterizing the envelope and its contents as "contraband," Esser
then "unjustifiably" accused Lindell in Conduct Report #2155409 of violating Wis. Admin.
Code §DOC 303.40, which prohibits an "unauthorized transfer of property." Lindell was
found guilty as charged, resulting in the loss of recreation privileges for seven days. Lindell
alleges that Esser filed the charge in retaliation for the 2005 lawsuit.
2. Second Incident
On December 9, 2011, Esser seized another manila envelope that contained
"printouts of comments left on Lindell's blog." 1 Esser then filed disciplinary charges against
Lindell in Conduct Report #2155410, accusing him again of violating Wis. Admin. Code
§DOC 303.40 by attempting to make another unauthorized transfer of property. Noting
that he was found not guilty, Lindell argues that these charges were false and that Esser filed
them in retaliation for his 2005 lawsuit.
3. Third Incident
Also on the evening of December 9, 2011, Esser allegedly directed two sergeants (who
are not defendants here) to seize and search all "paper property" in Lindell's cell. Lindell's
property was returned the following day, with the exception of three sheets of paper featuring
Lindell's drawings of a "beautiful nude female." Also missing was a copy of Esser's personnel
file, which had been disclosed to Lindell during the 2005 lawsuit. Lindell claims Esser used
his authority as a supervisory officer to deprive him of his "art" and legal papers in retaliation
for his 2005 lawsuit.
1
See "Between the Bars: Prometheus Writes," at: http://www.betweenthebars.org/blogs/540/nathaniellindell (last visited Feb. 11, 2015).
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4. Fourth Incident
On June 8, 2012, another prisoner at WSPF (Ronnie Peebles) asked Lindell to help
him with a lawsuit involving his medical care. Lindell contends that Esser seized all of the
paperwork that Peebles had given him without explanation or justification in retaliation for
the 2005 lawsuit. Lindell also claims that Esser confiscated the papers belonging to Peebles
in violation of Lindell's First Amendment rights to provide "legal assistance" and to write
about Peebles' predicament as a "prison journalist."
5. Fifth Incident
On July 25, 2012, Esser and another officer allegedly confiscated all of Lindell's
paperwork, which included legal files, his "wedge pillow" and his "extra blanket."
Esser
allegedly told Lindell that his paperwork was being taken because Lindell had assaulted an
officer. Esser added that the Health Services Unit had informed him that Lindell was not
approved to have a wedge pillow or an extra blanket.
Lindell maintains that he was authorized to have the paperwork, pillow and extra
blanket. By depriving him of his paperwork, Lindell contends that Esser prevented him from
filing an administrative grievance regarding an unspecified incident of "staff abuse" that
occurred on July 22. Lindell contends that Esser deprived him of his property in retaliation
for his 2005 lawsuit and to obstruct further litigation by Lindell.
6:
Sixth Incident
In September 2012, Lindell was helping fellow inmate Sean Riker with some
unspecified litigation. Riker sent Lindell three letters related to that litigation, but none of
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the letters were delivered.
Lindell alleges that Esser, who was responsible for monitoring
Riker's mail, intercepted and confiscated these letters in retaliation for Lindell's 2005 lawsuit.
By confiscating these letters, Lindell again appears to claim that Esser violated his First
Amendment right to provide legal assistance to other prisoners.
7. Seventh Incident
On October 28, 2012, Lindell sent Riker a letter that contained an original drawing,
legal papers for a "pending case" filed by Riker, and "directions for an affidavit Lindell
needed from Mr. Riker for one of Lindell' s pending cases." Defendant Esser reportedly gave
this letter to Captain Flannery to issue a notice of non-delivery because the letter was
saturated with "blue pigment." Lindell appears to claim that Esser tampered with the letter
in retaliation for the 2005 lawsuit and to deny Lindell's right to access the courts in violation
of the First Amendment.
OPINION
I.
Retaliation Claims
As a general proposition, prison officials may not retaliate against a prisoner for filing
lawsuits against them. See, e.g., Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Babcock v.
White, 102 F.3d 267, 276 (7th Cir. 1996). Recognizing that any perceptible slight may well
be deemed retaliatory in the prison setting, however, the Seventh Circuit has emphasized
that "not every claim of retaliation by a disciplined prisoner, who either has had contact with,
or has filed a lawsuit against prison officials, will state a cause of action for retaliatory
treatment." Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988). To state a viable cause
of action, a prisoner must "allege a chronology of events from which retaliation may be
5
inferred." Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994) (quoting Murp1!J v. Lane, 833
F.2d 106, 108-09 (7th Cir. 1987)). To satisfy this pleading threshold, a plaintiff must: (1)
identify a constitutionally protected activity in which he was engaged; (2) identify one or
more retaliatory actions taken by defendant that would likely deter a person of "ordinary
firmness" from engaging in the protected activity in the future; and (3) allege sufficient facts
that would make it plausible to infer that plaintiffs protected activity was a motivating factor
in defendant's decision to take retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 555-56
(7th Cir. 2009) (citing Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)).
Here, Lindell alleges in conclusory fashion that Esser retaliated against him in 2011
and 2012 for a lawsuit that Lindell filed in early 2005, which was resolved in Esser's favor on
summary judgment later that same fall, by (a) filing false disciplinary charges against him and
(b) arbitrarily confiscating paperwork and mail. Not only was Esser one of a multitude of
defendants named in Lindell's 2005 lawsuit, but all seven alleged acts of retaliation occurred
at least six and as much as seven years later. On the pleadings, the 2005 lawsuit that Lindell
filed against Esser is far too attenuated in context and remote in time to find a convincing
chronology of events from which a retaliatory motive may plausibly be inferred. See Benson v.
Cady, 761 F.2d 335, 342 (7th Cir. 1985) (finding that a five-month delay between filing of
lawsuit and the alleged adverse act was insufficient to support an inference of retaliation);
Williams v. Roberts, 1997 WL 136268, *2 (N.D. Ill. 1997) (finding that allegations of adverse
treatment occurring 16 months after filing suit were too remote to make a retaliation claim).
Accordingly, the court must deny Lindell leave to proceed with a retaliation claim in this
case.
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II.
Other First Amendment Claims
In addition to his claims of retaliation, Lindell contends that many of Esser's actions
violated his rights under the First Amendment. In particular, Lindell contends that Esser
violated his First Amendment rights by: (a) preventing him from providing legal assistance to
other inmates; (b) interfering with his work as a prison journalist; and (c) denying him access
to courts. These allegations are addressed separately below.
A. Legal Assistance to Others
By confiscating mail and paperwork sent to him by two other prisoners (Peebles and
Riker), Lindell contends that Esser violated Lindell's First Amendment right to provide legal
assistance to these inmates. There is, however, no freestanding constitutional right to receive
or give legal assistance from another inmate in prison. See Shaw v. Murphy, 532 U.S. 223, 226
(2001). Accordingly, Lindell may not proceed with a First Amendment claim based on his
· activities in providing legal assistance to other inmates.
B. Work as a Journalist
By seizing records belonging to Mr. Peebles, Lindell further contends that Esser
prevented him from writing about Peebles' medical care issues in violation of Lindell's First
Amendment right to work as a prison journalist. Unfortunately for Lindell, this claim, too,
lacks legal merit on the specific facts alleged in the amended complaint.
"In the First Amendment context, ... a prison inmate retains those First Amendment
rights [of freedom of speech and association J that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system." Pell v.
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Procunier, 417 U.S. 817, 822 (1974). Thus, to the extent not inconsistent with their status as
prisoners or with legitimate penological objectives, inmates have a First Amendment right to
communicate with the press. See Owen v. Lash, 682 F.2d 648, 650-53 (7th Cir. 1982).
However, Lindell does not allege facts showing that Esser confiscated or censored a
particular piece of writing or prevented him from publishing his views. Cf Abu-Jamal v. Price,
154 F.3d 128 (3d Cir. 1998) (granting injunctive relief against a rule prohibiting prisoners
from engaging in a business or profession, which interfered with a prisoner's efforts to publish
his writings). Rather, Lindell claims that Esser interfered with his ability to investigate or
review another inmate's medical records and prepare an article for prospective publication,
presumably on Lindell's blog. Absent an allegation that Esser actually prevented Lindell from
publishing his views, he does not articulate a First Amendment violation of the right to free
speech or expression. See Manning v. Bunnell, No. 12-cv-2440, 2013 WL 2303231, *8 (E.D.
Cal. May 24, 2013) (finding no First Amendment violation where prisoner failed to
demonstrate that destruction or theft of mail prevented him from publishing). Accordingly,
he will not be allowed to proceed with this claim either.
C. Access to Courts
Finally, Lindell contends that Esser violated his First Amendment right to access the
courts on July 25, 2012, by confiscating paperwork from his cell, thereby preventing him
from filing a grievance and obstructing subsequent litigation. Lindell contends further that
Esser violated his First Amendment right to access the courts on October 28, 2012, by
confiscating a letter asking Riker to provide him with an affidavit for use in one of Lindell's
court cases.
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Prison inmates have a constitutional right to access the courts. See Lewis v. Casry, 518
U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 (1977). To state a valid claim in this
context, a prisoner must allege that he was deprived of access to the courts and suffered an
actual injury as a result. See Ortiz v. Downry, 561 F.3d 664, 671 (7th Cir. 2009). To make
this showing, a prisoner's complaint must "spell out, in minimal detail, the connection
between the alleged [deprivation] and an inability to pursue a legitimate challenge to a
conviction, sentence, or prison conditions." Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006). In other words, a prisoner must point to a concrete, non-frivolous claim or defense he
might have raised but for his inability to access the courts. See Christopher v. Harbury, 536
U.S. 403, 415 (2002); Marshall, 445 F.3d at 968.
To the extent Lindell generally claims that depriving him of his property impeded his
access to the courts, he still fails to allege specific facts showing that his ability to litigate any
particular claim was affected by Esser's actions. In fact, one might reasonably infer from this
failure that he was not ultimately prejudiced in any concrete way from pursuing a nowfrivolous claim or defense, however much the confiscation of paperwork or a supporting
affidavit may have made its pursuit more difficult.
In particular, Lindell alleges no facts
showing that he was prevented from raising a non-frivolous claim in court. See Beese v. Todd,
35 F. App'x 241, 243-44 (7th Cir. 2002) (holding for purposes of an access-to-courts claim
that seizure of prisoner's legal papers, without more, does not demonstrate actual injury, such
as the dismissal of a complaint or an inability to file a complaint at all). Because Lindell does
not plead the requisite actual injury, his allegations of mere interference, standing alone, are
similarly insufficient to state a claim.
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Lindell may, within thirty days of the date of this order, file an amended complaint
that cures this latter deficiency with regard to his claims that Lieutenant Esser denied him
access to courts by confiscating his paperwork on July 25, 2012, and by confiscating a letter
to Sean Riker on October 28, 2012. Otherwise, this entire case will be dismissed.
ORDER
IT IS ORDERED that:
1. Plaintiff Nathaniel A. Lindell's request for leave to proceed with his amended
complaint (dkt. #12) is DENIED.
2. Within thirty days of the date of this order, Lindell may file an amended
complaint to cure deficiencies regarding his claim that Lieutenant Esser denied
him access to courts by confiscating his paperwork on July 25, 2012, and by
confiscating a letter to Sean Riker on October 28, 2012.
3. If Lindell does not file an amended complaint as directed, this case will be
dismissed without further notice.
Entered this 2nd day of March, 2015.
BY THE COURT:
Isl
WILLIAM M. CONLEY
District Judge
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