Kuslits, John et al v. Stoudt, Paula et al

Filing 3

ORDER Dismissing plaintiffs claim that defendants violated plaintiffs' First Amendment rights by warning them that their conduct violated DOC 303.24 is dismissed with prejudice for failing to state a claim upon which relief can be granted. Plai ntiff Kuslits is dismissed from this case and assessed a strike in accordance with 28 U.S.C. 1915(g). Plaintiff Hess's claim that defendant Stoudt violated his First Amendment rights is dismissed without prejudice pursuant to Fed. R. Civ. P. 8. Plaintiff Hess shall file an amended complaint by March 7, 2016. Signed by District Judge Barbara B. Crabb on 2/22/2016. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHN KUSLITS and
DENNIS HESS,

OPINION and ORDER
15-cv-809-bbc

Plaintiffs,
v.
PAULA STOUDT, CAPTAIN SCHACHT,
CAPTAIN LUNDMARK and REED RICHARDSON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs John Kuslits and Dennis Hess, prisoners at Stanley Correctional Institution,
filed this pro se civil action against defendants Paula Stoudt, Captain Schacht, Captain
Lundmark and Reed Richardson, alleging violations of their rights under the First
Amendment. Specifically, plaintiffs allege that defendants issued them warnings that they
were violating prison rules by circulating a group statement related to the conduct of a fellow
inmate. In addition, plaintiff Hess alleges that defendant Stoudt violated his First
Amendment rights by transferring Hess to a different unit as punishment for complaining
about Stoudt’s alleged misconduct.
Each plaintiff has paid the $400.00 filing fee and their complaint is ready for
screening pursuant to 28 U.S.C. § 1915A. After reviewing the complaint, I conclude that
plaintiffs’ allegations related to the warnings they received for circulating their group
statement fail to state a claim upon which relief can be granted. Courts have consistently

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held that prison officials may restrict prisoners’ ability to engage in the type of group action
at issue here. As for plaintiff Hess’s retaliation claim, I conclude that he has failed to satisfy
Fed. R. Civ. P. 8's pleading requirements and will give him an opportunity to file an
amended complaint containing additional facts to support his retaliation claim.
Plaintiffs’ complaint contains the following allegations, which for screening purposes,
I must accept as true and read in the light most favorable to them. Perez v. Fenoglio, 792
F.3d 768, 774 (7th Cir. 2015).

FACTUAL ALLEGATIONS
On April 2, 2015, David Morris, an inmate at Stanley Correctional Institution, threw
some clean wash rags onto the floor of the prison cafeteria. When plaintiff Dennis Hess
confronted Morris about the incident, an argument arose and Morris threatened to harm
Hess and his family. Hess told prison officials about the incident, but they did not punish
Morris.
Unsatisfied with the prison’s response to Morris’s threats, Hess wrote a statement
documenting the events in the cafeteria and describing other problems prisoners were having
with Morris. Hess circulated this statement to fellow inmates, including Stephen Richter
and plaintiff John Kuslits, both of whom signed it as witnesses to Morris’s “antics.” Hess
took the statement to the prison library to have it copied so that he could send a copy to his
family.
Prison officials then discovered the statement and gave both Hess and Kuslits a

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“written warning” that the statement violated Wis. Admin. Code DOC § 303.24, which
prohibits inmates from engaging in group activity and soliciting fellow inmates to join in any
group petition or statement. Plaintiffs Kuslits and Hess met with defendants Stoudt and
Schacht regarding the statement. During this meeting, Stoudt and Shacht explained to
plaintiffs that the statement violated DOC § 303.24. Kuslits defended the statement on the
ground that it was “an affidavit” regarding Morris’s conduct.
On May 2, 2015, Hess wrote to defendant Lundmark and explained what happened
with Morris and that he had been warned that the statement violated DOC § 303.24. (It
is not clear how, if at all, Lundmark responded to Hess’s letter). Hess also filed an inmate
complaint related to the incident and asked that the warning be removed from his prison
records. Hess’s complaint request was rejected on the ground that “[w]ritten warnings are
not part of the formally-defined disciplinary system” and therefore “not subject to review.”
The complaint rejection letter stated that “a written warning is only documentation of a rule
having been explained to [an] inmate.”
In retaliation for Hess’s complaints about defendant Stoudt’s “constant misuse” of
her power as unit manager, Stoudt had Hess transferred to a different unit in the prison. (It
is not clear whether this transfer is related to the warning Hess received or the inmate
complaint Hess filed).

OPINION
I understand plaintiffs to be raising two claims under the First Amendment. First,

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plaintiffs allege that their First Amendment rights were violated when defendants Stoudt and
Schacht issued them a warning that circulating and signing Hess’s statement violated DOC
§ 303.24. Second, plaintiff Hess alleges that defendant Stoudt violated Hess’s First
Amendment rights by transferring him to a different unit in retaliation for Hess’s complaints
about Stoudt’s alleged misconduct. I will address each of these claims in turn.

A. Plaintiffs’ Written Warnings
Plaintiffs’ allegations related to their receipt of written warnings for circulating and
signing Hess’s group statement fail to state a claim upon which relief can be granted. To
state a claim under the First Amendment, plaintiffs must plead and prove that the restriction
on their speech was not “reasonably related to legitimate penological interests.” Lindell v.
Frank, 377 F.3d 655, 657 (7th Cir. 2004). On multiple occasions, courts have held that
prison regulations prohibiting inmates from circulating and signing group statements and
petitions are constitutional. Felton v. Ericksen, No. 08-cv-227-slc, 2009 WL 1158685, at
*8 (W.D. Wis. Apr. 28, 2009); Duamutef v. O’Keefe, 98 F.3d 22, 24-25 (2d Cir. 1996)
(“Petitions necessarily involve hard-to-monitor organizational activities that might well result
in concerted conduct that undermines order in the prison.”); Nickens v. White, 461 F. Supp.
1158, 1159 (E.D. Mo. 1978) (“Prison officials have a legitimate need to avoid the dangers
inherent in prisoners taking group action to redress grievances.”), aff’d, 622 F.2d 967 (8th
Cir. 1980). Prisons have an obvious interest in restricting unapproved group activity.
Indeed, I have previously held that the specific regulation at issue—DOC § 303.24—is

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constitutional on its face. Koutnik v. Brown, 396 F. Supp. 2d 978, 986 (W.D. Wis. 2005),
aff’d, Koutnik v. Brown, 189 Fed. Appx. 546, 549 (7th Cir. 2006). To the extent that
plaintiffs are challenging the prison’s right to prohibit inmates from circulating group
statements, their claim fails as a matter of law.
Even though some types of group statements or petitions are not punishable under
DOC § 303.24, plaintiff’s attempt to challenge its application to the specific group statement
at issue fails. Persons in the positions of defendants are entitled to significant deference
when it comes to prison administration and the enforcement of disciplinary rules. Beard v.
Banks, 548 U.S. 521, 528 (2006) (plurality opinion) (“courts owe ‘substantial deference to
the professional judgment of prison administrators’” (quoting Overton v. Bazzetta, 539 U.S.
126, 132 (2003))); Procunier v. Martinez, 416 U.S. 396, 405 (1974) (problems related to
prison administration require expertise “peculiarly within the province of the legislative and
executive branches of government”); Felton, 2009 WL 1158685, at *8 (“Defendants’ . . .
determination that the document was a [prohibited group petition] was one of the ‘difficult
judgments concerning institutional operations’ for which prison administrators receive
deference[.]) (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S 119,
128 (1977))). It is clear from the face of Hess’s group statement that it had the potential
to unite a group of prisoners against a fellow inmate believed to be a problem. This type of
mob mentality is exactly the type of thing DOC § 303.24 was designed to prevent. Plaintiffs
cannot state a plausible claim that defendants’ decision to issue them a warning regarding
the scope and applicability of DOC § 303.24 was unrelated to any legitimate penological

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interests.

B. Plaintiff Hess’s Retaliation Claim against Defendant Stoudt
Plaintiff Hess’s claim related to defendant Stoudt’s alleged retaliation against Hess
will be dismissed for failure to comply with Fed. R. Civ. P. 8(a)’s pleading requirements. To
prevail on a First Amendment retaliation claim, Hess must show that (1) he engaged in
activity protected by the First Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the First Amendment activity was “at
least a motivating factor” in defendant’s decision to take the retaliatory action. Woodruff
v. Mason, 542 F.3d 545, 551 (7th Cir. 2008).
In this instance, Hess’s allegations related to defendant Stoudt’s retaliation are
limited to a single paragraph in plaintiffs’ complaint. All Hess alleges is that he “complained
about Stoudt’s constant misuse of her unit manager power” and that, as a result, Stoudt had
Hess transferred to a new unit. This single allegation fails to provide Stoudt notice of
plaintiff’s claim adequate to satisfy Rule 8. In particular, Hess fails to provide any detail
regarding the nature of his complaints, including when they were made, to whom they were
made and what conduct was described therein. Hess also fails to provide the factual basis
for his belief that his complaints against Stoudt were a motivating factor in her decision to
transfer Hess to a different unit.
If Hess wishes to pursue this claim against Stoudt, he should file an amended
complaint that contains the missing information described above, as well as any additional

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information he has to support his retaliation claim. Moreover, the amended complaint must
contain sufficient factual detail to replace the existing complaint; Hess should not attempt
to “supplement” the existing complaint with additional allegations. The court cannot
effectively screen, and defendants cannot answer, complaints that are strewn across a
number of different documents in the record.

ORDER
IT IS ORDERED that
1. Plaintiffs Kuslits’s and Hess’s claim that defendants Stoudt, Schacht, Lundmark
and Richardson violated plaintiffs’ First Amendment rights by warning them that their
conduct violated DOC § 303.24 is DISMISSED WITH PREJUDICE for failing to state a
claim upon which relief can be granted.
2. Plaintiff Kuslits is dismissed from this action and I am assessing a “strike” against
him in accordance with 28 U.S.C. § 1915(g).
3. Plaintiff Hess’s claim that defendant Stoudt violated his First Amendment rights
by punishing him for complaining about Stoudt’s alleged “misuse” of her power is
DISMISSED WITHOUT PREJUDICE for failing to satisfy Fed. R. Civ. P. Rule 8’s pleading
requirements.
4. Plaintiff Hess will have until March 7, 2016 to file an amended complaint that
contains additional detail regarding defendant Stoudt’s retaliatory conduct. If Hess fails to
file an amended complaint by that date, his case will be dismissed for failing to state a claim

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upon which relief may be granted and the clerk’s office will record a strike against him in
accordance with 28 U.S.C. § 1915(g).
Entered this 22d day of February, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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