Paulson, Seth v. Petronovic et al

Filing 24

ORDER denying defendants' 13 Motion to Dismiss. Signed by District Judge James D. Peterson on 10/25/2017. (jef),(ps)

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

SETH PAULSON,
Plaintiff,
v.
OPINION & ORDER
ROY PETRONOVICH, JAMES EWER,
HILLARY BROWN, REED RICHARDSON,
CLAIRE HICKEY, DIANE MASON, and
MICHAEL KASTEN,

17-cv-97-jdp

Defendants.1
Pro se plaintiff Seth Paulson is a state prisoner currently housed at the Oregon
Correctional Center (OCC). I granted him leave to proceed on a due process claim against
defendant Wisconsin Department of Corrections (DOC) officials. He alleges that while he was
housed at the Stanley Correctional Institute (SCI), defendants took his guitar cord and refused
to return it despite being ordered to do so. Defendants now move to dismiss Paulson’s
complaint under Federal Rule of Civil Procedure 12(b)(1). They contend that this court lacks
subject matter jurisdiction over the case because they have returned Paulson’s guitar cord,
rendering his case moot. Dkt. 13. I conclude that Paulson retains his claim for damages, so I
will deny defendants’ motion to dismiss.

BACKGROUND
I draw the following facts from Paulson’s complaint and evidence submitted on the issue
of mootness. See St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.

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I have updated the caption to reflect defendants’ full names.

2007) (“When [considering a 12(b)(1) motion,] a district court must accept as true all wellpleaded factual allegations and draw all inferences in favor of the plaintiff [and] may properly
look beyond the jurisdictional allegations of the complaint and view whatever evidence has
been submitted on the issue to determine whether in fact subject matter jurisdiction exists.”
(quoting Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999))).
On November 7, 2016, defendant Correctional Officer Petronovic confiscated a guitar
effects pedal and cord from Paulson’s cell at SCI. Paulson tried to get the items back, explaining
that they were “grandfathered in.” Dkt. 1, at 2. After Paulson filed a grievance, defendant
Hickey determined that the items were “grandfathered,” and ordered the guitar effects pedal
be returned to Paulson. Id. at 3. But she refused to return the cord because it was a “class-‘A’
tool.” Id. Paulson appealed the partial denial of his grievance, and on December 13, 2016, a
designee of DOC secretary Jon E. Litscher ordered that the cord be returned. Paulson’s cord
was returned on January 30, 2017. Dkt. 14, ¶ 5.

ANALYSIS
Defendants argue that Paulson’s claim is moot because his guitar cord has been
returned. A case becomes moot—and therefore must be dismissed—when “the issues presented
are no longer live or the parties no longer have a legally cognizable interest in the outcome.”
Eichwedel v. Curry, 700 F.3d 275, 278 (7th Cir. 2012). Claims for injunctive relief are mooted
when the allegedly unconstitutional act stops and cannot reasonably be expected to reoccur
because “there is no need to enjoin prospective action that would violate federal law.” Wernsing
v. Thompson, 423 F.3d 732, 744 (7th Cir. 2005). But claims for monetary damages “are not
moot, even if the underlying misconduct which caused the injury has ended.” Id. at 745; see

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also Markadonatos v. Village of Woodridge, 760 F.3d 545, 546 (7th Cir. 2014) (per curium)
(“Although the ordinance has been repealed and the repeal moots the plaintiff’s request for
declaratory and injunctive relief, it occurred after he paid his $30 and so does not nullify his
claim for damages.”).
That’s the case here. Injunctive relief would no longer be appropriate because
defendants have returned the guitar cord to Paulson. There’s no reasonable expectation that
defendants will confiscate the cord again. But Paulson’s claims for damages are not moot. He
seeks both compensatory and punitive damages for the time during which he was deprived of
his property without due process of law. See Dkt. 1, at 5. The fact that the period of deprivation
was brief and has ended does not nullify his claim for damages. Paulson is barred by 42 U.S.C.
§ 1997e(e) from recovering damages for mental and emotional injuries without a corresponding
physical injury, but he could still recover nominal and punitive damages. See Rasho v. Elyea, 856
F.3d 469, 477 (7th Cir. 2017); Calhoun v. DeTella, 319 F.3d 936, 941–42 (7th Cir. 2003). So
I will deny defendants’ motion to dismiss.

ORDER
IT IS ORDERED that defendants’ motion to dismiss, Dkt. 13, is DENIED.
Entered October 25, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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