Prude, Terrance v. Meli, Anthony et al

Filing 54

ORDER granting in part and denying in part plaintiff's 42 Motion for Reconsideration; insofar as Prude may proceed on his due process claim against Meli related to his allegation that Westra did not consider the letters from Nistler and Jones in resolving the conduct report. Plaintiff's motion for adequate writing material (dkt. 48 ) is DENIED. Signed by Magistrate Judge Stephen L. Crocker on 2/4/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TERRANCE PRUDE,
Plaintiff,
v.

OPINION AND ORDER
17-cv-336-slc

ANTHONY MELI, et al.,
Defendants.
Pro se plaintiff Terrance Prude filed a complaint under 42 U.S.C. § 1983, alleging
that defendants violated his constitutional rights by confiscating his funds, issuing him a
conduct report for receiving such funds, and intercepting his mail. (Dkt. 1.) On November
19, 2018, I granted Prude leave to proceed against defendants Anthony Meli and Gary
Boughton on a Fourteenth Amendment due process claim related to Meli’s alleged
withholding of exculpatory evidence at Prude’s conduct report hearing, as well as against
Meli on a First Amendment claim related to Meli’s alleged interference with Prude’s mail.
I did not grant Prude leave to proceed against Meli on the theory that Meli was an
“unbiased decision-maker,” since Meli did not preside over the conduct report hearing, did
not find him guilty, and did not impose a punishment. (11/19/18 Order (dkt. 41) at 9.)
Similarly, I denied Prude leave to proceed on his due process claim on the theory that he
was not able to review the testimony of two of his witnesses, Nistler and Jones. I also
denied Prude leave to proceed on an access to courts claim since he did not plead facts
suggesting that defendants’ confiscation of his funds actually interfered with his ability to
seek post-conviction relief. Finally, I denied Prude’s request for a preliminary injunction.

Before the court are two motions by pro se plaintiff Terrance Prude: His motion for
reconsideration of the screening order on several grounds (dkt. 42), which I am granting in
part; and his motion to compel defendants to provide him with writing material (dkt. 48),
which I am denying.

OPINION
I.

Motion for reconsideration (dkt. 42)
Prude seeks reconsideration of (A) the theories upon which he may proceed with

his due process claim against Meli, (B) my denial of his access to courts claim, and (C) my
denial of his request for a preliminary injunction.
A.

Due Process Claim against Meli

Prude asks the court to reconsider its decision denying him leave to proceed against
Meli on theories that he was a biased decision-maker and because he withheld Nistler’s
and Jones’ letters from Westra, the conduct report hearing officer. In support of his biased
decision-maker theory, Prude cites to Whitford v. Boglino, 63 F.3d 527, 534 (7th Cir. 1995),
in which the court held that if an “officer is substantially involved in the investigation of
the charges against [the] inmate, due process forbids that officer from serving on the
adjustment committee.” Id.
Prude asserts that this language suggests that Meli, the investigating officer and
conduct report writer who authorized the charges and seized Prude’s funds, was
substantially involved. However, the fact remains that Meli did not decide the outcome of
the conduct report, nor did he mete out the punishment. Accordingly, I am declining to

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broaden Prude’s due process claim against Meli to include a biased decision-maker theory.
Prude also argues that I erred in denying him leave to proceed against Meli on
Prude’s allegation that Meli withheld the letters that Nistler and Jones submitted on his
behalf. In denying Prude leave to proceed on a due process claim related to those letters,
I began with the principle from Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012), that in the
context of his conduct report, Prude had no “constitutional right to call witnesses or to
require prison officials to interview witnesses.” Id. at 685. Then I concluded that because
Westra’s decision listed their letters in the Record of Witness Testimony (see dkt. 1-1 at
9), Prude’s claim had no traction because Westra had received those letters, and Prude had
no right to interview the letter writers or to review the letters.
Prude opposes this conclusion on two bases, and I’m persuaded by the second. First,
he asserts that pursuant to Wolff v. McDonnell, 418 U.S. 539, 566 (1974), his due process
rights included the right to call witnesses and know the evidence before him. He argues
that Westefer does not apply to his circumstances because his conduct report proceeding
was formal, which is different from the informal administrative segregation hearing
addressed in that case. Prude does not cite any authority in support; that’s not surprising
because it is well-settled that Westefer stands for the broader principle that prisoners facing
a change in placement (typically from general population to segregation), regardless of
whether the change is pursuant to administrative or disciplinary proceedings, requires less
formal procedures. Westefer, 682 F.3d at 685 n.2 (noting that more formal procedures may
be required in the context of a loss of good-time credit because that process affects the
length of incarceration, not the nature of incarceration); see James v. Pfister, 708 F. App’x

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876, 879 (7th Cir. 2017) (acknowledging that a transfer to disciplinary segregation affords
inmates the informal process described in Westefer). Accordingly, I remain convinced that
Westefer governs the type of process he was due.
Prude’s second argument is more persuasive. Prude now clarifies that he is not only
complaining that he personally didn’t have access to the letters, but also that Westra, the
hearing officer, did not actually review the letters. Prude claims that his allegations and
attachments to his complaint do not conclusively establish that Westra considered Nistler
and Jones’ letters in resolving the conduct report. Prude further points out that he had
alleged that Westra stated, during the hearing, that he had not received those letters
(Compl (dkt. 1) ¶ 68), and that the conduct report form did not include an “x” in the box
Westra should have marked if he had considered their testimony (dkt. 1-1 at 7).
While I remain convinced that Prude had no right to review the letters himself, I
am persuaded that Prude’s allegations create a factual dispute about whether Westra
actually received the letters. Indeed, while it may be logical to infer that Westra received
the letters after the conduct report hearing, the fact remains that Prude alleges that Westra
did not actually review them, and it is possible that Westra’s decision contained errors or
misstatements about the evidence he actually considered. Accordingly, I will grant Prude’s
request and allow him to proceed on his due process claim against Meli on an additional
theory that Westra did not receive all potentially exculpatory evidence, including Nistler’s
and Jones’ letters, in finding Prude guilty.

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B.

Prude’s access to the courts/counsel of choice

Prude seeks reconsideration of my conclusion that he could not proceed on an access
to courts claim. In his complaint, Prude claimed that the defendants’ confiscation of his
money violated his right to access the courts because he was going to use that money to
hire a lawyer to represent him in a post-conviction motion to challenge his conviction and
sentence. I denied Prude leave to proceed on that claim because he had not alleged that
he could not proceed pro se, and an access to courts claim requires plaintiff to allege facts
supporting a reasonable inference of “actual injury.” Lewis v. Casey, 518 U.S. 343, 349
(1996). Prude argues that that this was error because he much prefers hiring an attorney
to pursue his post-conviction relief rather than go it alone and face dismissal because he is
unskilled in the law. Prude also claims that he should have been allowed to proceed on a
claim that he has the right to hire counsel of his choice.
Setting to one side Prude’s demonstrated legal acumen, the fact remains that he has
no right to counsel in the context of post-conviction relief. Murray v. Giarratano, 492 U.S.
1, 7-8 (1989) (holding that there is no federal constitutional right to counsel for indigent
prisoners seeking state post-conviction relief); Pigram v. Williams, 182 F. Supp. 3d 861,
865-66 (N.D. Ill. 2016) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Pruitt v.
Mote, 503 F.3d 647, 657 (7th Cir. 2007) (“due process does not require appointment of
counsel for indigent prisoners pursuing state postconviction remedies or federal habeas
relief”). Since Prude has no constitutional right to counsel while pursuing postconviction
relief, it follows that he has no right to counsel of his choice.
Moreover, Prude still has not alleged that the confiscation of the money created an

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actual -- read “insurmountable” -- barrier to him pursuing post-conviction relief, either pro
se or by attempting to secure counsel who would represent him pro bono. I am willing to
accept Prude’s contention that his attempts to obtain post-conviction relief would proceed
more smoothly with a lawyer than without one (which is not to say that having an attorney
would change the outcome), but DOC’s confiscation of his money does not support an
inference that any of the defendants actually prevented him from pursuing such relief. As
such, I see no basis to change my previous decision declining to grant him leave to proceed
on this claim.
C.

Injunction

Prude asks the court to reconsider its denial of his request for a preliminary
injunction requiring defendants to return his funds to him. I denied his request because:
(1) he did not adequately show that he would suffer irreparable harm, and (2) he did not
demonstrate a likelihood of success on the merits, since his claims against Meli require
consideration of his credibility.

Prude asks that I reconsider by referring me to his

submissions related to his post-conviction motions. I have reviewed my conclusions as well
as Prude’s submissions, and have identified no basis to reconsider my decision.

II.

Motion for writing material (dkt. 48)
Finally, Prude seeks an order requiring him access to pens. Prude explains that in

December of 2018, he was transferred to the Green Bay Correctional Institution (GBCI).
GBCI staff have placed him on a “pen restriction,” which limits him to using pencils and
crayons to prepare his legal submissions. Prude claims that this policy deprives him of

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adequate access to the courts because the e-filing policy requires prisoners to use ink pens.
Prude’s submission does not suggest that the pen restriction is affecting his ability
to litigate this case. To start, Prude’s crayon submission is perfectly readable, and he used
GBCI’s e-filing system to submit his motion as well as a letter he recently submitted to the
clerk’s office asking for the docket report. While I expect that GBCI staff will afford Prude
the opportunity to have the pen restriction lifted, at this juncture there is no basis for me
to infer that the pen restriction is impeding Prude’s ability to access the court. Accordingly,
I’m denying the motion.

ORDER
IT IS ORDERED that:
1. Plaintiff Terrance Prude’s motion for reconsideration (dkt. 41) is GRANTED in
part and DENIED in part, insofar as Prude may proceed on his due process claim
against Meli related to his allegation that Westra did not consider the letters
from Nistler and Jones in resolving the conduct report.
2. Plaintiff’s motion for adequate writing material (dkt. 48) is DENIED.

Entered this 4th day of February, 2019.
BY THE COURT:
/s/
__________________________________
STEPHEN L. CROCKER
Magistrate Judge

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