Parrish v. McCulloch, 12-cv-750-bbc

KENNETH PARRISH, Plaintiff, v. DEBORAH McCULLOCH and WILLIAM PARKER, Defendants.

12-cv-750-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

Entered: March 17, 2014

OPINION AND ORDER

Pro se plaintiff Kenneth Parrish, who is confined at the Sand Ridge Secure Treatment Center, is proceeding on a claim that defendants Deborah McCulloch and William Parker violated his right of access to the courts by interfering with his appeal to the Court of Appeals for the Seventh Circuit. Both sets of parties filed motions for summary judgment, but I have already denied plaintiff's motion, dkt. #24, because he failed to follow this court's rules, Procedure to Be Followed on Motions for Summary Judgment. Defendants' motion, dkt. #15, has been briefed and is ready for review.

At the outset, I note that plaintiff filed a motion that can be construes as a request to strike the amended affidavit of defendant Parker, dkt. #27, on the ground that the amended affidavit differs significantly from the original with respect to the sixth paragraph. A review of the two affidavits shows that the only difference between the two paragraphs is that the amended affidavit leaves out a statement by Parker that he was unsure whetherplaintiff or another individual notified him of plaintiff's complaint. Dkts. ##17, 23. Because this amendment has no effect on defendants' motion for summary judgment, I will deny plaintiff's motion.

Second, I note that plaintiff's response brief contains a section entitled "Proposed Findings of Fact," but he does not recite individually numbered findings of fact with citations to evidence or respond to defendants' proposed findings of fact, as required by this court's rules. Rather, the section is primarily legal argument. He includes a few factual statements but they are not supported by citations to evidence in the record. He also alleges that defendants "fabricated evidence" in this case, but he does not support this allegation with any evidence or explain how the alleged fabrication affects his case.

Because plaintiff has failed to properly dispute defendants' proposed findings of fact, I must treat them as undisputed. Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568 (7th Cir. 1992); Procedure to Be Followed on Motions for Summary Judgment, at II.C ("Unless the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed."). From these undisputed facts, I conclude that defendants are entitled to summary judgment.

From defendants' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

A. The Parties

Plaintiff Kenneth Parrish is confined at the Sand Ridge Secure Treatment Center pursuant to a civil commitment. Defendant Deborah McCulloch is the institution superintendent at Sand Ridge. Defendant William Parker was a supervising officer at Sand Ridge during the relevant time period. (He has since retired.) Although both defendants have supervisory authority, neither was directly or personally involved in decisions made in the mailroom about patient mail and neither knew about the mailroom incident described below until after the mail had been sent.

B. Plaintiff's Habeas Corpus Petition

After serving a sentence for sexual assault, plaintiff was civilly committed to the Sand Ridge Secure Treatment Center on the ground that he had a diagnosis of borderline personality disorder and antisocial personality disorder. Later, plaintiff's psychiatrist eliminated borderline personality disorder from his diagnosis, leaving only antisocial personality disorder. After that diagnostic change was made, plaintiff filed a petition for a writ of habeas corpus in the District Court for the Eastern District of Wisconsin, contending that he could not be subject to commitment unless he had diagnoses of at least two psychological problems. The court held that plaintiff had not met his burden of proof but because it believed that the case law on this question was unclear, it certified his appeal to the Court of Appeals for the Seventh Circuit. Parrish v. McCulloch, No. 11-C-419 (E.D.Wis. Dec. 7, 2011). Plaintiff's notice of appeal was due January 6, 2012.

C. Mailroom Incident

On January 3, 2012, plaintiff was paid $15.00, creating a balance of $15.17 in his institution trust account. On that day, he also made a disbursement request for the mailing of a letter at a cost of $0.44. The next day, January 4, plaintiff filed a disbursement request for the postage for his notice of appeal and dropped off the mailing. He asked the mailroom to determine the amount of postage required for "priority mail," but he did not mark the request as "urgent" or otherwise indicate that the letter should be mailed promptly. (His notice of appeal deadline was January 6.) On the same day, he went to the canteen and placed an order for $10.34.

The disbursement request for the canteen and for mailing the letter on January 3 were processed first, leaving his trust account balance at $4.39. His notice of appeal required $4.95 worth of postage. Because plaintiff did not have adequate funds for postage, the mailroom held the notice of appeal until January 23, 2012, when the balance in plaintiff's account was sufficient to cover the mailing costs. (Plaintiff disputes this fact because he says that January 23 was not a payday on the payroll calendar, but his account statement indicates that the credit he received on January 23 was a "correction," presumably for a previous payday.) During this delay, no one at Sand Ridge notified plaintiff that his mail had not been sent. Plaintiff did not check up on whether his mail had been sent.

As a result of the delay, plaintiff's notice of appeal of his petition for habeas corpuswas filed late in the District Court for the Eastern District of Wisconsin. The district court denied plaintiff's motion for an extension of time to file the notice of appeal because he failed to make a coherent argument about his delay. Parrish v. McCulloch, No. 11-C-419 (E.D. Wis. February 8, 2012). Plaintiff appealed this decision to the Court of Appeals for the Seventh Circuit, arguing that his notice of appeal was timely under the mailbox rule, which considers timely any mail deposited in the prison legal system by the deadline, so long as "first-class postage has been prepaid." Fed. R. App. P. 4(c)(1). Defendant McCulloch wrote the court of appeals, explaining that plaintiff's notice of appeal had been held in the mailroom because he had insufficient funds for postage. On September 26, 2012, the court of appeals dismissed plaintiff's appeal as untimely. Parrish v. McCulloch, 481 F. App'x 254, 255 (7th Cir. 2012). It held that because plaintiff deposited his notice of appeal for mailing without a stamp and without sufficient funds or a request for a loan, the mailbox rule did not apply and plaintiff's notice of appeal was untimely.

Plaintiff filed two grievances at Sand Ridge about the incident. Upon review of those complaints, Sand Ridge adopted a policy of notifying patients when their mail is held for lack of postage.

D. Sand Ridge Policies and Procedures

When a patient wants something mailed at Sand Ridge, he must take the item to the mailroom and attach either the necessary postage or a disbursement request from his trust account for the amount of postage. If a patient has insufficient funds for sending legal mail,he may request a legal loan to cover the costs. In this instance, plaintiff did not request a legal loan. Patients receive account statements every Saturday and may request information on their account balance at any time (though the balance is updated only on Tuesdays and Wednesdays). Although plaintiff had information about his account, he took no action on the disbursement request for his mailing.

OPINION

Confined or detained persons have a constitutional right to "meaningful access to the courts" to pursue post conviction remedies and to challenge the conditions of their confinement. Bounds v. Smith, 430 U.S. 817, 821-22 (1977); Lehn v. Holmes, 364 F.3d 862, 865-66 (7th Cir. 2004). Plaintiff must prove that defendants' interference caused an "actual injury," which means that it must have caused plaintiff to lose a meritorious claim or the chance to seek particular relief. Lewis v. Casey, 518 U.S. 343, 346-348 (1996); Christopher v. Harbury, 536 U.S. 403, 414 (2002); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). The named defendants must have been personally responsible for the constitutional violation; a plaintiff cannot rely on supervisory or respondeat superior liability to make out a constitutional claim. Morfin v. City of East Chicago, 349 F.3d 989, 1001 (7th Cir. 2003). Furthermore, plaintiff must show that defendants were not simply negligent when they interfered with his rights. Harrell v. Cook, 169 F.3d 428, 432 (7th Cir. 1999) ("It is well established that negligent conduct by a government official is insufficient to support a claim under § 1983.").

Plaintiff argues that because his appeal was denied as a result of its delay in Sand Ridge's mailroom, he suffered an actual injury as a result of the employees' deliberate actions to deny him access to the courts. Defendants argue that summary judgment should be granted in their favor for four reasons: (1) defendants were not personally responsible for the alleged interference with plaintiff's legal mail; (2) those who were responsible were merely negligent in handling plaintiff's mail; (3) plaintiff's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994); and (4) in any case, defendants have qualified immunity for their actions. Because I conclude that defendants are correct as to the first and second arguments, I need not consider the other two.

Defendants say that although they had supervisory responsibilities at Sand Ridge, neither one of them was personally responsible for the handling of patients' mail, so they cannot be...