Tonn, Dennis v. Dittmann, Michael et al

Filing 62

ORDER denying 57 Motion for Reconsideration ; denying 59 Motion for Certificate of Appealability. Signed by District Judge James D. Peterson on 1/7/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DENNIS TONN,
ORDER
Plaintiff,
v.

14-cv-481-jdp

MICHAEL MEISNER, DAVID MELBY,
DONALD MORGAN, and MARY LEISER,
Defendants.

In this case, pro se prisoner Dennis Tonn is challenging a disciplinary decision
ordering him to pay restitution for a rule violation. I granted defendants Michael Meisner,
David Melby, Donald Morgan, and Mary Leiser’s motion for summary judgment because the
undisputed facts of this case established that plaintiff failed to exhaust his administrative
remedies for these claims. Dkt. 53. I concluded that plaintiff failed to challenge the amount
of restitution in his direct appeal of the disciplinary decision. I further concluded that by the
time that plaintiff raised the issue through his institution’s grievance system eight months
later, he had long since passed the 14-day deadline for filing a grievance related to his
disciplinary hearing. Plaintiff has moved for reconsideration of my summary judgment
decision. Dkt. 57. I will deny his motion.
I must address a preliminary question of jurisdiction because plaintiff has also filed a
notice of appeal, Dkt. 58, and a motion for a certificate of appealability, Dkt. 59. I have
jurisdiction to rule on plaintiff’s motion for reconsideration because he filed it before
submitting his notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(i); Square D Co. v. Fastrak
Softworks, Inc., 107 F.3d 448, 450 (7th Cir. 1997) (“[A] notice of appeal is rendered
ineffective while certain specified motions are pending before the district court.”). With

regard to plaintiff’s motion for a certificate of appealability, I explained to plaintiff in a
previous order that a certificate of appealability is available only to prisoners who want to
appeal unsuccessful collateral attacks on their criminal convictions and sentences, such as
through a motion under 28 U.S.C. § 2254. Dkt. 18, at 2-3. I will deny plaintiff’s motion for a
certificate of appealability because this is a prisoner civil rights case, brought under 42 U.S.C.
§ 1983, and not a collateral attack on plaintiff’s conviction or sentence.
Plaintiff contends that I should reconsider my ruling on defendants’ motion for
summary judgment because I have: (1) patently misunderstood his arguments; (2) made a
decision outside the adversarial issues that the parties presented; and (3) made an error not
of reasoning but of apprehension. Dkt. 57, at 1, 3. Specifically, plaintiff argues that the 14day limit for filing inmate grievances does not apply to ongoing problems. See Simpson v.
Greenwood, No. 06-cv-612, 2007 WL 5445538, at *6 (W.D. Wis. Apr. 6, 2007) (“Although
Wis. Admin. Code § DOC 310.09(6) imposes a 14-day deadline for grievances, this deadline
should not have any application to ongoing problems.”). Plaintiff contends that his problem
is ongoing because he is still being charged restitution as a result of the disciplinary decision.
Thus, according to plaintiff, his inmate grievances were timely even though he filed them
eight months after the disciplinary hearing.
Plaintiff’s arguments do not require that I reconsider my earlier ruling. I did not
misunderstand plaintiff’s position at summary judgment, nor has he demonstrated that I
made an error of apprehension.1 Indeed, I addressed the issue of whether plaintiff’s
grievances were timely in the summary judgment order. See Dkt. 53, at 7-9. I explained that
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Defendants briefed the issue of whether plaintiff’s inmate complaints were timely. Dkt. 35,
at 8-10. Thus, contrary to plaintiff’s contention, I did not make a decision outside the
adversarial issues presented.

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in this case, plaintiff is challenging the constitutionality of a disciplinary decision that
occurred in July 2013. Id. at 8. The monthly payments that plaintiff is now making as a
result of that decision are different from the ongoing constitutional violations that were at
issue in Simpson, the case on which plaintiff relies. In Simpson, a prisoner complained that his
guards were violating his right to privacy by accompanying him to medical examinations and
by distributing his medication to him rather than allowing a nurse to provide the medication.
2007 WL 5445538, at *2. The court granted summary judgment to the defendants because
the prisoner had not exhausted his administrative remedies. Id. at *6. But the court explained
that if guards continued to go into examinations with the prisoner, or if they continued to
distribute the prisoner’s medication to him, then these would be ongoing constitutional
violations, and plaintiff could file a new grievance. Id.
In this case, I granted plaintiff leave to proceed with a procedural due process claim
alleging that prison officials did not have evidence to support the restitution that they
ordered plaintiff to pay after a disciplinary hearing. Dkt. 24. When plaintiff appealed my
initial dismissal of his complaint, this was the only claim that the Seventh Circuit reinstated.
See Dkt. 23-1. Thus, the constitutional violation that plaintiff is challenging in this case
occurred (that is, it began and ended) in July 2013—it is not ongoing. Plaintiff knew of the
restitution because it was expressly stated in the written decision from his disciplinary
hearing, Dkt. 38-1, at 6, and plaintiff listed the punishment in his direct appeal to the
warden, id. at 9.
As a final point, plaintiff also complains that he did not receive “a Pavey hearing” to
show that defendants are wrong in their contention that plaintiff failed to exhaust his
administrative remedies. Dkt. 57, at 2-3 (citing Pavey v. Conley, 544 F.3d 739 (7th Cir.), as

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amended on denial of reh’g and reh’g en banc, (Sept. 12, 2008)). But the issue in Pavey was
whether prisoners have a Seventh Amendment right to try factual disputes about exhaustion
of administrative remedies to a jury. 544 F.3d at 740. The Seventh Circuit concluded that
prisoners have no such rights, holding “that not every factual issue that arises in the course of
a litigation is triable to a jury as a matter of right.” Id.
Even if Pavey requires some sort of hearing to resolve factual disputes, there were no
disputes to resolve in this case. Defendants’ motion for summary judgment turned on
undisputed facts: the dates of plaintiff’s disciplinary hearing, direct appeal, and inmate
complaints, and the substance of the appeals and grievances that he filed with prison officials.
Plaintiff did not argue at summary judgment—and he does not argue now—that defendants’
timeline of the relevant events in this case is wrong. Plaintiff also does not dispute that the
inmate grievances that defendants submitted at summary judgment are authentic. Thus, it
was not necessary to hold a hearing on defendants’ motion for summary judgment.

ORDER
IT IS ORDERED that:

1. Plaintiff Dennis Tonn’s motion for reconsideration, Dkt. 57, is DENIED.
2. Plaintiff’s motion for a certificate of appealability, Dkt. 59, is DENIED.
Entered January 7, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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