Ripp, Timothy v. Nickel, Janel et al

Filing 6

ORDER dismissing plaintiff's complaint for failure to state a claim upon which relief may be granted. The clerk of court is directed to enter judgment in favor of defendants Janel Nickel, Timothy Douma, Captain Salter and Daniel Ripp and close this case. Signed by District Judge Barbara B. Crabb on 10/1/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TIMOTHY FRANCIS RIPP,
OPINION AND ORDER
Plaintiff,
15-cv-409-bbc
v.
JANEL NICKEL, TIMOTHY DOUMA,
CAPTAIN SALTER, DANEL RIPP,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Timothy Francis Ripp has filed a proposed complaint under 42 U.S.C.
§ 1983 in which he challenges two things: (1) a 2009 order he received from prison officials
at the Columbia Correctional Institution not to contact his mother and other family
members; and (2) conduct reports he received related to violating the order. At the time
plaintiff filed his complaint, he was confined at the Sand Ridge Secure Treatment, which
means that he is now a patient committed under Wisconsin Statutes chapter 980. Although
patients are not subject to the provisions of the Prisoner Litigation Reform Act, West v.
Macht, 986 F. Supp. 1141, 1143 (W.D. Wis.1997), I may screen plaintiff’s complaint to
determine its legal sufficiency because plaintiff is proceeding in forma pauperis under 28
U.S.C. § 1915. Having reviewed the complaint, I conclude that plaintiff has failed to state
a claim upon which relief may be granted with respect to any of his claims.
With respect to the “no contact” order, plaintiff alleges that his brother, defendant

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Daniel Ripp, falsely told prison staff that his mother and the rest of the family on his
mother’s side no longer wanted contact with him. To the extent that prisoners retain a right
of familial association, the Supreme Court has held that the standard of review is whether
any restriction on the right is reasonably related to a legitimate penological interest. Overton
v. Bazzetta, 539 U.S. 126 (2003). As the Supreme Court did in Overton, I will assume that
prisoners do retain a right to have contact with their families.
If family members did not want contact with plaintiff, it would be legitimate and
reasonable for the three prison officials (defendants Janel Nickel, Timothy Douma and
Captain Salter) to enforce those wishes under most circumstances. (Plaintiff says that he
needed to contact his sister because he had a lawsuit against her, but he does not allege that
the no contact order prevented him from completing the lawsuit or that he was disciplined
for litigation activities, so that issue is moot.) Plaintiff admits that his brother informed
officials that no one in the family wanted contact with him, but he seems to believe that
officials should not have allowed his brother to speak for other members of the family.
(Plaintiff also objects to the order because it “did not come from a judge,” but that is
irrelevant. Prison officials are entitled to impose their own rules so long as they meet the
standard in Overton.)
As a matter of policy, there may be good reasons to argue that officials should require
any individual not wishing to have contact with a prisoner to inform the prison himself or
herself. However, I am not aware of any authority that would require this as a matter of
constitutional law. Under Overton, the question is whether the officials’ conduct was

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reasonable, not whether there is any arguable room for improvement. In the absence of
strong evidence to question the brother’s representation, I cannot say that it would be
irrational or unreasonable to accept it. After all, if the brother was wrong and another family
member wanted to have contact with plaintiff, he or she could inform prison officials of the
error.
In his complaint, plaintiff says that his brother’s representation was “a lie” because
plaintiff “ha[d] contact with five of [his] first and second cousins on the Ripp side of the
family.” However, plaintiff does not explain what he means by this and he does not allege
that any of the prison officials were aware of this allegation when they imposed the no
contact order. In any event, even if plaintiff had some type of contact with some of his
cousins and defendants were aware of this, the most plaintiff’s allegations suggest is that
defendants were negligent in failing to be more skeptical of plaintiff’s brother. Because
negligent acts do not give rise to a claim under the Constitution, United States v. Norwood,
602 F.3d 830, 835 (7th Cir. 2010), plaintiff cannot prevail on a claim that prison officials
violated plaintiff’s constitutional rights by accepting his brother’s representation that the
family did not want contact with him. Of course, if the no contact order was valid, then
plaintiff’s discipline for violating the order was valid as well.
With respect to plaintiff’s claim against his brother, Daniel Ripp, that claim fails
because a person may be held liable under § 1983 only if he acted “under color of law,”
which usually means that he must be a government official. London v. RBS Citizens, N.A.,
600 F.3d 742, 746 (7th Cir. 2010). Although there is an exception under certain

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circumstances when a private individual acts jointly with public officials, that exception does
not apply unless the private individual’s conduct is “fairly attributable to the state.” Tom
Beu Xiong v. Fischer, 787 F.3d 389, 398 (7th Cir. 2015).

To meet that standard, the

plaintiff must show that there was a “meeting of the minds” between the public and private
defendants to accomplish a common goal. Tarkowski v. Robert Bartlett Realty Co., 644
F.2d 1204, 1206 (7th Cir. 1980). In this case, plaintiff cannot make that showing because
the only joint action he alleges is his brother’s use of allegedly false information to influence
the other defendants. He does not suggest that the defendants plotted together. Because
furnishing false information to law enforcement officers is not enough to hold a private
individual liable for a constitutional violation, Gibson v. Regions Financial Corp., 557 F.3d
842, 846 (8th Cir. 2009); Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1087 (C.D. Cal.
2009), plaintiff’s claim against his brother must be dismissed as well.
There are a few loose ends to clean up. Plaintiff challenges not only his discipline for
contacting his family, but also other charges he received in the same conduct reports. In
particular, he challenges charges for lying, fraud and making threats. These claims have no
merit.
Plaintiff does not deny that he lied to his family in various letters in an attempt to
get money from them. For example, he told his mother that he needed $1000 to repay his
cell mate for accidentally breaking the cell mate’s TV and radio, even though the cell mate
stated that his radio worked fine and he never had a TV. Dkt. #1-1 at 2. Plaintiff’s only
argument against the charges for lying and fraud is that he was lying to his family, not the

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Department of Corrections, and the department “has no business getting into inmates’
family business.”
As with limitations on familial association, limitations on a prisoner’s speech are valid
under the Constitution if they are reasonably related to a legitimate penological interest.
Turner v. Safely, 482 U.S. 78, 89 (1987). Prison officials have a legitimate interest in
protecting not only themselves from fraud, but also the general public. In addition, they
have an interest in rehabilitating prisoners and trying to deter them from engaging in
conduct that could bring them back to prison after their release. Beard v. Banks, 548 U.S.
521, 530 (2006)(“the need to motivate better behavior” is legitimate penological interest).
Accordingly, I see no problem under the Constitution with a prisoner being disciplined for
trying to swindle his own family.
With respect to the charge for threats, plaintiff says that his only “threat” was to sue
his brother for the no contact order. Prisoners have a right to file lawsuits to enforce their
constitutional rights, In re Maxy, 674 F.3d 658, 660-61 (7th Cir. 2012), but this right does
not extend to frivolous claims. Eichwedel v. Chandler, 696 F.3d 660, 673 (7th Cir. 2012).
Even if I assume that plaintiff’s claim against his brother is not frivolous, plaintiff did not
receive a conduct report simply for stating his intention to sue his brother. Rather, he
attempted to extort money from his mother by threatening to sue his brother for the no
contact order unless his family gave him money to buy a new TV, two things that have no
relation to each other. Dkt. #1-1 at 8. Under those circumstances, it is inaccurate to
describe defendants’ conduct as punishing plaintiff for exercising his right to gain access the

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courts. Rather, defendants were punishing plaintiff’s attempt to extort money from his
family.
In sum, I conclude that none of plaintiff’s claims have merit, so I am dismissing the
complaint for plaintiff’s failure to state a claim upon which relief may be granted.

ORDER
IT IS ORDERED that plaintiff Timothy Francis Ripp’s complaint is DISMISSED for
plaintiff’s failure to state a claim upon which relief may be granted. The clerk of court is
directed to enter judgment in favor of defendants Janel Nickel, Timothy Douma, Captain
Salter and Daniel Ripp and close this case.
Entered this 1st day of October, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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