Sasnett v. Department of Corrections

891 F. Supp. 1305

Sylvester SASNETT, Will Highfill, Lonnie Smith, James Lowery, James Hadley, John Casteel and Barbara Miller, et al., individually and on behalf of others similarly situated, Plaintiffs, and United States of America, Intervenor, v. DEPARTMENT OF CORRECTIONS of the State of Wisconsin, Michael J. Sullivan, Secretary, Department of Corrections; Ken Sondalle, Administrator, Division of Adult Institutions; Jeffrey Endicott, Warden, Columbia Correctional Institution; Gary McCaughtry, Warden, Waupun Correctional Institution, Gerald Berge, Warden, Fox Lake Correctional Institution; Kristine Krenke, Warden, Taycheedah Correctional Institution; their agents, assistants, officials, employees, successors and others acting in concert with them, Defendants.

No. 94-C-052-C.

United States District Court, W.D. Wisconsin.

June 23, 1995.

COPYRIGHT MATERIAL OMITTED

Percy L. Julian, Julian, Olson & Lasker, S.C., Madison, WI, for Sylvester Sasnett, Will Highfill, Lonnie Smith, James Lowery, James Hadley, John Casteel, and Barbara Miller.

Frank Remington, Wisconsin Dept. of Justice, Madison, WI, for Dept. of Corrections, Michael J. Sullivan, Ken Sondalle, Jeffrey Endicott, Gary McCaughtry, Gerald Berge, and Kristine Krenke.

Janis C. Kestenbaum, Theodore C. Hirt, U.S. Dept. of Justice, Washington, DC, for U.S.A.

Marc D. Stern, American Jewish Congress, Stephen Wise Congress House, New York City, for American Jew. Cong. (amicus curiae).

CRABB, Chief Judge.

This is a civil action for injunctive and declaratory relief brought pursuant to 42 U.S.C. § 1983 and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. Plaintiffs are Wisconsin state prisoners who challenge several internal management procedures, emergency rules and permanent administrative rules regulating the types and amounts of personal property they may possess while in prison. They contend that the enforcement of these procedures and rules violates their constitutional rights to due process, of access to the courts, to equal protection under the law and of free exercise of their religions under the Constitution and the Religious Freedom Restoration Act.¹ In addition, plaintiffs contend that the regulations are unconstitutionally vague and overbroad.

Defendants have moved pursuant to Fed. R.Civ.P. 12(b)(6) for partial dismissal of plaintiffs' claims on the grounds that 1) the complaint fails to state a Fourteenth Amendment due process claim because plaintiffs lack a legitimate claim of entitlement to the regulated property; 2) the complaint fails to state an access to courts claim because it does not include allegations from which prejudice might be inferred; 3) the claims brought pursuant to the Religious Freedom Restoration Act must be dismissed either because the act is unconstitutional or in the alternative, because plaintiffs have failed to allege deprivation of property "essential" to the exercise of their religions and the regulations further a compelling state interest; and 4) plaintiffs' allegations of denial of treatment afforded the plaintiffs in Braun v. Department of Corrections, No. 92-CV-3496, fail to state an equal protection claim. Finally, defendants contend that they are immune from liability for damages on all of plaintiffs' claims because the law defendants are alleged to have violated was not clearly established at the time.

I conclude that defendants' motion must be granted with respect to plaintiffs' access to the courts claims and equal protection claims and denied in all other respects. Plaintiffs' amended complaint does not contain a request for money damages, making it unnecessary to reach the merits of defendants' qualified immunity defense. Because sovereign immunity bars claims brought directly against the state, defendant Department of Corrections will be dismissed on the court's own motion. Construing the amended complaint liberally, I find that it fairly alleges the following.

ALLEGATIONS OF FACT

Plaintiff Sylvester Sasnett is a prisoner at Columbia Correctional Institution in Portage, Wisconsin; plaintiffs Will Highfill and Lonnie Smith are incarcerated at Fox Lake Correctional Institution in Fox Lake, Wisconsin; plaintiffs James Lowery, James Hadley and John Casteel are imprisoned at Waupun Correctional Institution in Waupun, Wisconsin; and plaintiff Barbara Miller is currently incarcerated at the Outagamie County jail in Appleton, Wisconsin, but was a state prisoner at Taycheedah Correctional Institution in Fond du Lac, Wisconsin, during the period when defendants' challenged rules went into effect.²

Defendant Department of Corrections is a department of the State of Wisconsin. Defendant Michael Sullivan is the Secretary of the Department of Corrections. Defendant Ken Sondalle is the administrator of the Division of Adult Institutions of the Department of Corrections. Defendants Jeffrey Endicott, Gary McCaughtry, Gerald Berge and Kristine Krenke are the wardens of Columbia Correctional Institution, Waupun Correctional Institution, Fox Lake Correctional Institution and Taycheedah Correctional Institution, respectively. All defendants are responsible for enforcing the rules and procedures of the Department of Corrections.

The Department of Corrections and individual prisons regulate and restrict inmates' rights to acquire and possess personal property by several means: administrative rules promulgated pursuant to chapter 227 of the Wisconsin Statutes; internal management procedures, which are not promulgated according to statute and are not legislative rules of conduct; emergency rules, which are published, but temporary, and not legislative rules of conduct; and institution handbooks containing various rules, internal management procedures and ad hoc policies or procedures. There may be overlap and variation among the administrative rules, internal management procedures and the institution handbooks.

On May 1, 1992, the administrator of the Department of Corrections, Division of Adult Institutions, issued a memorandum to all wardens and superintendents entitled "Revised Internal Management Procedures Relating to Inmate Personal Property and Clothing." The memo contained revised inmate personal property and clothing procedures that became effective on June 1, 1992, although inmates incarcerated on that date were given until June 1, 1993, to come into compliance. The changes included limiting the amount of personal and state-issued property an inmate may possess to that able to fit into a box no larger than 32" × 16" × 16" (excluding electronic equipment, typewriters, fans or other large items).

Under Internal Management Procedure DOC 309 IMP # 1-D, inmates are forbidden from wearing earrings, necklaces, bracelets, ankle bracelets and pins, including religious jewelry such as crucifixes. Internal Management Procedure DOC 309 IMP # 4 prohibits inmates from possessing more than 25 books, magazines, newspapers or periodicals, including religious publications, and requires that inmates purchase all reading materials through approved retail outlets or publishers. Under Internal Management Procedure DOC 309, IMP # 1-B, computers are forbidden and typewriters, although permitted, may not have memory or text storage capability and must be purchased from approved retail outlets with the prior permission of prison officials. This rule requires inmates to rely on technologically inferior items that are increasingly difficult to obtain and increases the time required to prepare legal documents and requires inmates to store needed legal materials in hard copy form.

On August 31, 1992, the Wisconsin State Public Defender filed Braun v. Department of Corrections, No. 92-CV-3496, in Dane County Circuit Court on behalf of five inmates, one of whom is a litigant in this action (James Lowery), challenging the validity of the internal management procedures. On May 26, 1993, just before the compliance date for most prisoners, Dane County Circuit Judge Moria Krueger enjoined the Department of Corrections from enforcing the internal management procedures against the Braun plaintiffs on the ground that it was probable the procedures were not promulgated in accordance with state law. In response, on July 30, 1993, the Department of Corrections promulgated emergency rules restricting inmates' possession of personal property. On August 18, 1993, Judge Krueger granted the Braun plaintiffs' motion for summary judgment, holding that the internal management procedures were promulgated in violation of state law. Defendants did not apply the internal management procedures to the five named plaintiffs in Braun but did apply the procedures to all other inmates. The plaintiffs in Braun then challenged the emergency rule, and on or about September 17, 1993, the Braun defendants agreed by stipulation not to enforce the emergency rules against them. The emergency rules were applied to all other inmates.

On June 1, 1994, the emergency rules expired and new permanent property rules went into effect. One of the rules, Wis.Admin.Code § DOC 309.35(3), directs prison wardens to develop policies and procedures relating to the acquisition, possession and use of personal property by inmates, to make a list of personal property items permitted at their institutions and to determine the permissible methods by which personal property may be acquired. Subsection (3)(d) forbids inmates from possessing more personal property than can fit into a receptacle 32" × 16" × 16", or 8192 cubic inches, excluding medically prescribed items, hobby materials, legal materials, electronic equipment, typewriters, fans or other "large items." Subsection (3)(e) requires that an inmate's hobby materials fit into a receptacle 14" × 14" × 14", or 2744 cubic inches, excluding one over-sized item. Subsection (3)(f) requires that an inmate's legal materials fit into a receptacle no larger than 20" × 20" × 20", or 8000 cubic inches, and allows wardens to authorize...