Prude, Terrance v. Meli, Anthony et al

Filing 92

ORDER denying Plaintiff Terrance Prude's 55 Motion for Reconsideration. Defendants' motion for extension (dkt. 86 at 7) and Prude's motion to file a sur-reply (dkt. # 91 ) are GRANTED. Prude has until July 22, 2019, to reply to defendants' supplemental brief, response to proposed findings of fact and proposed findings of fact (dkt. 87 , 88 , 89 ). Signed by Magistrate Judge Stephen L. Crocker on 7/10/2019. (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 is proceeding in this lawsuit against defendants
Anthony Meli and Gary Boughton on Fourteenth Amendment due process claims related
to Meli’s alleged withholding of exculpatory evidence (a letter from an attorney named
Meyeroff) 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 withheld other exculpatory letters from
two other individuals, Jones and Nistler, or that he was a “biased 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.) Prude sought reconsideration of
that conclusion, and on February 4, 2019, I denied his request for reconsideration on the
biased-decision maker theory, but granted him leave to proceed against Meli on the theory
that Meli withheld the Jones and Nistler letters. (2/4/19 Order (dkt. 54) at 3-4.)
The parties are in the process of briefing dispositive motions, but there are three
pending motions that require resolution.

First, Prude filed a second motion for

reconsideration. (Dkt. 55.) Second, the parties are in the process of finalizing their
submissions related to Prude’s motion for summary judgment and judgment on the

pleadings, as well as defendants’ motion for summary judgment. In defendants’ July 3,
reply brief, they requested an extension of time to supplement their brief because they
inadvertently omitted proposed findings of fact and argument related to Prude’s theory
that Meli withheld the Nistler and Jones letters. (Dkt. 86, at 6.) Third, Prude responded
to defendants’ motion by requesting to file a sur-reply (dkt. 91). This order denies Prude’s
motion for reconsideration and grants defendants’ request for an extension as well Prude’s
request to file a sur-reply.

I.

Motion for Reconsideration (dkt. 55)
In his second motion for reconsideration, Prude again takes issue with my

conclusion that Meli, who was not present at the disciplinary hearing, did not find Prude
guilty, and did not have a hand in punishing Prude, did not constitute a decision-maker.
However, Prude does not cite any authority to support his position that Meli’s
involvement, in acting as a gatekeeper of the evidence available to the disciplinary hearing
officer, became a quasi-decisionmaker.
Prude relies on 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 specifically takes issue with my previous conclusion that Meli did
not resolve the disciplinary charges. However, Prude does not dispute that another officer
(Westra) actually presided over the hearing and imposed the punishment. While Prude
argues that Meli, who shares office space with and has authority over Westra, likely

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influenced Westra’s decision, those statements are nothing more than conjecture.
While I appreciate that Prude wants to be able present as much evidence as possible
to support his due process claim against Meli, Prude already is proceeding against him on
his due process claim on the theory that Meli withheld multiple pieces of potentially
exculpatory evidence from the hearing. Since Prude has not alleged any additional facts
related to Meli’s involvement in the disciplinary hearing, and has not directed the court to
any case law suggesting that Meli constitutes a decision-maker for purposes of this type of
claim, I will not broaden his due process claim against Meli.
Prude also argues that Meli’s decision to deny Prude the ability to submit evidence
at the hearing was an arbitrary abuse of power sufficient to constitute a due process claim.
See Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984). While the screening order
may not have cited specifically to the Hanrahan decision, Prude is proceeding against Meli
on the same theory. Specifically, in screening Prude’s complaint to go forward, I noted
that Meli’s alleged withholding of exculpatory evidence could violate Prude’s due process
rights, citing to decisions that acknowledge that such behavior would constitute an
arbitrary abuse of power. See, e.g., Piggie v. McBride, 277 F.3d 922, 925 (7th Cir. 2002)
(acknowledging that disciplinary hearing officers may not arbitrarily exclude exculpatory
evidence). Accordingly, since Prude is already proceeding on a theory that Meli’s actions
constituted an arbitrary use of his power, I’m denying Prude’s second motion for
reconsideration.

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II.

Motion for extension (dkt. 86 at 6), and motion to file a sur-reply (dkt. 91)
At the close of their reply brief in support of their motion for summary judgment,

defendants acknowledge that their submissions in support of their motion for summary
judgment and in opposition to Prude’s motions did not address Prude’s claim that Meli
withheld potentially exculpatory letters from Nistler and Jones. Defense counsel represents
this was a mistake; he had not seen the order in which I granted Prude’s motion for
reconsideration in part. He explains he had started at the DOJ two weeks before filing
defendants’ motion for summary judgment on May 31, and he regrets this oversight.
Obviously, counsel should have paid closer attention to the docket, my orders, the
allegations in Prude’s complaint related to the Nistler and Jones letters (see Compl. (dkt.
1) ¶¶ 68, 69), and their Answer, which explicitly addressed these allegations (see Answer
(dkt. 53) ¶¶ 62, 63-69). Even so, I accept counsel’s representations, and the dispositive
motion deadline in this lawsuit is not until December 6, 2019, so consideration of
defendants’ supplemental materials, which have already been filed (see dkt. 87, 88, 89),
will not prejudice Prude. Because I am granting defendants’ motion and will consider their
supplemental proposed findings of fact and brief, I also am granting Prude’s request to file
a sur-reply. Prude may respond to defendants’ supplemental filings by July 22, 2019. At
that point, I will not accept further briefing on these motions and take them all under
advisement.

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ORDER
IT IS ORDERED that:
1. Plaintiff Terrance Prude’s motion for reconsideration (dkt. 55) is DENIED.
2. Defendants’ motion for extension (dkt. 86 at 7) and Prude’s motion to file a surreply (dkt. #91) are GRANTED.
3. Prude has until July 22, 2019, to reply to defendants’ supplemental brief,
response to proposed findings of fact and proposed findings of fact (dkt. 87, 88,
89).

Entered this 10th day of July, 2019.
BY THE COURT:
/s/
__________________________________
STEPHEN L. CROCKER
Magistrate Judge

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