Vega, Alfredo v. Anderson

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

ALFREDO VEGA,

Plaintiff,

v. OPINION and ORDER

LIEUTENANT ANDERSON and 18-cv-678-jdp

LINDA ALSUM-O’DONOVAN,

Defendants.

Plaintiff Alfredo Vega, appearing pro se, is an inmate at Green Bay Correctional

Institution. In 2011, when Vega was incarcerated at Columbia Correctional Institution, he

started a fire in his cell. After the fire was extinguished with the help of the Portage Fire

Department, prison officials threw out his property, saying that the property was damaged and

dangerous as a result of the fire.

But Vega contends that his property was not so damaged that needed to be discarded.

He brings a claim under the Fourteenth Amendment, contending that he was entitled to due

process before the property was discarded. He also brings claims under the First Amendment,

contending that defendants disposed of his property to retaliate against him for filing lawsuits,

and that their actions blocked his access to the courts.

Defendants have filed a motion for summary judgment, Dkt. 28, which I will grant

because defendants did not violate Vega’s constitutional rights even if the lost property was

not damaged.

PRELIMINARY MATTERS

I begin with a series of preliminary motions by Vega.

Vega has filed two motions asking for the case to proceed directly to trial. Dkt. 61 and

Dkt. 62. He seems to assume that I have already denied summary judgment because the court

set a trial date. But it is this court’s practice to set trial dates at the outset of all of its cases. I

have not previously ruled on defendants’ summary judgment motion; I’ll do that in this

opinion. I’ll deny Vega’s motion to proceed to trial.

Vega has also submitted three motions asking for the court to conduct a demonstration.

Dkt. 49; Dkt. 60; Dkt. 64. With each motion he attaches a piece of brown fabric that he says

is from a state-issued pillowcase. He says that this is the same fabric as the pillowcase that he

used at CCI to wrap some of his papers to protect them from the fire. Because the parties

dispute whether his property was damaged by water used to put the fire out, he requests that

I wet the brown cloth and compare the color of the wet cloth to the color of the pillowcase as

it appears in photographs to determine whether the pillowcase in the photos was actually wet.

I’ll deny Vega’s motions for a few reasons. He didn’t authenticate the pieces of cloth,

so I cannot consider them as evidence at summary judgment, and he also filed them after the

close of summary judgment briefing, so they are too late. In any event, it would be improper

for the court to create evidence for either party by conducting its own demonstration. And as

I will discuss in the opinion below, it ultimately doesn’t matter whether Vega’s materials were

actually damaged by water before they were thrown away. Either way, I conclude that Vega’s

constitutional rights were not violated, and summary judgment for defendants is warranted.

UNDISPUTED FACTS

The following facts are undisputed unless otherwise noted.

Plaintiff Alfredo Vega is currently incarcerated at Green Bay Correctional Institution.

But the events at issue in this case took place while he was incarcerated at Columbia

Correctional Institution (CCI). Defendant Linda Alsum-O’Donovan is an institution

complaint examiner and litigation coordinator at CCI. Defendant Theodore Anderson is a

lieutenant.

In early April 2011, Vega received word that his mother had passed away. Vega says

that in response to this news and perceived mistreatment by prison staff, he wanted to commit

suicide. On April 11 at about 10:00 p.m., Vega gathered various fabrics and publications, stuck

a pencil in an electrical outlet, and started a fire. Vega says that before starting the fire, he had

attempted to wrap some of his property in plastic bags and a pillowcase and set it underneath

his mattress to keep it safe so that it could be shipped to his family after his death.

Much of what happened over the next two and one-half hours was recorded by a video-

only camera in the hallway outside Vega’s cell. Dkt. 33-5. Smoke detectors went off and Officer

Habeck was the first officer to respond to the fire. Habeck could not see Vega because of thick

smoke, but he made verbal contact with him. More officers responded. They sprayed a fire

extinguisher through the trap door until it ran out. Habeck used a second fire extinguisher to

finish putting out the fire. Vega was taken from the cell and was escorted to the Health Services

Unit to be evaluated. Staff called the Portage Fire Department and evacuated the rest of the

inmates residing in the tier because of the smoke.

While waiting for the fire department, defendant Anderson and two other staff

members went to the tier. They saw that there were still smoldering pieces of debris in Vega’s

cell. They deployed the fire hose from the hose closet next to Vega’s cell. One officer tried to

use the fire hose to extinguish the smoldering pieces of debris. But the smoke billowing out of

the cell made it unsafe to continue in that effort, so staff waited for the fire department. The

hallway video shows that an officer used the fire hose to spray water into the cell for about ten

seconds. Dkt. 33-5, at 25:20.

The Portage Fire Department arrived on the scene around 10:30 p.m. and two

firefighters were escorted to Vega’s cell. The firefighters used the fire hose on the smoldering

pile of clothes and paper until all the flames and embers were extinguished. In his opposition,

Vega attempts to dispute that the firefighters used the fire hose, saying that photos of the cell

don’t show large puddles of water on the cell floor.1 But there was standing water in the hallway,

the firefighters’ incident report says that they used the hose, see Dkt. 34-1, at 2, and the video

footage shows a firefighter entering the cell with the hose. Dkt. 33-5, at 36:21. Vega filed a

sur-reply, Dkt. 47, in which he concedes that the hose was used but he continues to maintain

that his property did not get soaked by the hose. I’ll accept the sur-reply because it usefully

clarifies Vega’s position.

An incident report from Sergeant Carl states that defendant Anderson told an officer to

“remove all partially burned materials and smoke damaged state property (mattress, pillow and

an office garbage can) out of the institution to the dumpsters.” Dkt. 40-9, at 2.

1 Three sets of photo or video documentation show the interior of Vega’s cell after the fire:

photos taken by firefighters and attached to their report, Dkt. 34-1, video footage of the cell

taken by a correctional officer, Dkt. 32-3, and photos taken by an officer. The docket contains

more than one copy of the officer’s photos, but the clearest version is located at Dkt. 32-2.

Those photos are dated the day after the fire but I take defendants to be saying that they were

taken overnight before the hallway and cell were cleaned.

The morning after the fire, defendant Alsum-O’Donovan was approached by property

department staff who wanted to know what to do with the rest of Vega’s property taken from

his cell. Alsum-O’Donovan doesn’t give the names of these staffers. Vega says that it must have

been Carl or Anderson because they had been involved with the incident report and disposing

the materials that had been burned. But Anderson says that neither Carl nor Anderson are

property staff.

Property staff were concerned that Vega’s property was dangerous, and they sought

Alsum-O’Donovan’s opinion as the institution complaint examiner. Alsum-O’Donovan went

to the property room where property staff had laid out Vega’s property on tables.

Alsum-O’Donovan says that the property was waterlogged, full of soot and chemicals, and

smelled bad; she found it physically uncomfortable to be in the room with the property because

of the fumes emitted by the property. She says that some of the property was so soaking wet

that water was running off the table it was sitting on, water could be seen inside the clear

electronics, there was residue of ash, soot, or fire-extinguisher chemicals on the outside of the

electronics, and that “all of the paperwork and publications were saturated with smoke and

water.” Dkt. 33, ¶ 6. Alsum-O’Donovan took photos of the property the morning after the fire.

Vega says those photos dispute Alsum-O’Donovan’s description of the damage done to those

materials.2

Alsum-O’Donovan decided that the property should be immediately thrown away

because she considered it to be hazardous to the health of staff and none of it was salvageable.

She was concerned about the smoky fumes coming from the property and mold and mildew

2 The clearest version of those photos is located at Dkt. 33-1.

that might form from the soaking wet papers. Defendants produce a property receipt showing

this decision, although Vega says that he did not receive that receipt until after filing this

lawsuit.

Under DAI Policy 309.20.03 (“Inmate Personal Property and Clothing”) and

306.00.16 (“Contraband”), prison staff usually retains property that has been confiscated from

an inmate, either to give the inmate a chance to tell them how to dispose of it or send it out of

the prison, or to hold it while disciplinary proceedings are pending. But for materials causing a

health, sanitation, or safety risk, such as “fecal matter, open food, [and] intoxicants,” staff may

photograph and dispose of those materials immediately. See Dkt. 33-6, at 3.

Defendants say that defendant Anderson and Vega did not discuss the fire or

destruction of his property at all. But Vega says they did. According to Vega, the day after the

fire, Anderson told him that his property had to be disposed of. Vega wrote to the warden for

copies of the photos of his property. Vega says that he and Anderson talked again a couple of

days later. Vega told Anderson that the photos didn’t seem to show that his property had been

damaged. Anderson then said that the property had been damaged by water from the fire hose.

When Vega showed Anderson the photos and told Anderson that it didn’t look like the

property had been damaged by water, Anderson replied, “Well this should teach you not to file

any complaint against any of us at Portage.” Dkt. 1, at 3.3

Vega filed an inmate grievance about the disposal of his property, saying that he should

have been given a chance to send it home instead. That grievance was denied, with the

3 Vega provides slightly different versions of this conversation in his proposed findings and in

his verified complaint. His proposed findings cite his declaration, Dkt. 40, but the declaration

does not include an account of the conversation. So in this opinion, I use the version of the

conversation from his verified complaint. The differences in the two versions are immaterial.

complaint examiner concluding from the photos that much of his property had been damaged

by fire, water, or fire extinguishers.

ANALYSIS

Vega brings a First Amendment retaliation claim against defendant Anderson and First

Amendment access-to-the-courts claims and Fourteenth Amendment due process claims

against both defendants Anderson and Alsum-O’Donovan.

A. Retaliation

To establish a First Amendment retaliation claim, a plaintiff must show that: (1) he

engaged in activity protected by the First Amendment; (2) defendants took actions that would

deter a person of “ordinary firmness” from engaging in the protected activity; and (3) the First

Amendment activity was at least a “motivating factor” in defendants’ decision to take those

actions. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).

Vega contends that Anderson retaliated against him for prior lawsuits he had filed

against CCI staff. Filing lawsuits is protected First Amendment conduct, so he has met that

element. I’ll also assume that the unfair destruction of his property could deter a person of

ordinary firmness from filing future lawsuits.

Defendants argue that those lawsuits were not against Anderson and that Anderson did

not have specific knowledge about the lawsuits. But Vega says that Anderson explicitly told

him “well this should teach you not to file any complaint against any of us at Portage,” which,

if believed by the jury, would show that Anderson was indeed aware of the lawsuits. The

question in a retaliation claim is simply whether the protected First Amendment conduct was

a motivating factor for taking an adverse action against the plaintiff; there is no requirement

that the defendant be a target of the protected speech. Dkt. 40.

But Vega’s retaliation claim fails anyway. Anderson is the only defendant for this claim,

and there is no evidence linking him to the destruction of the personal property that Vega

contends was undamaged. Anderson was involved in having the burnt property and the smoke-

damaged state-owned equipment destroyed, but Vega’s claims aren’t about those items.

Anderson’s comment about teaching Vega for filing a complaint raises the inference that

Anderson thought that Alsum-O’Donovan destroyed his property in retaliation for his lawsuits.

But Alsum-O’Donovan is not the defendant on this claim; Anderson is. Vega provides no

evidence to support his argument that Alsum-O’Donovan, Anderson, and Carl acted “in

cahoots” to destroy his property.

Alsum-O’Donovan says that she alone decided to have Vega’s personal property

destroyed, after consulting with unnamed property staff. Vega tries to dispute this by saying

that because Alsum-O’Donovan didn’t name who those property staffers are, she must have

meant that she talked to either Anderson or Carl, who had already destroyed burnt property

and state-owned equipment at Anderson’s request. But he has no evidence supporting his belief

that Anderson or Carl were property officers, and defendants deny that they were. Vega’s

speculation about Anderson’s or Carl’s job duties is not evidence. See, e.g., Herzog v. Graphic

Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir. 2014) (While nonmovant “is entitled . . . to

all reasonable inferences in her favor, inferences that are supported by only speculation or

conjecture will not defeat a summary judgment motion.” (citation omitted)).

Because Vega fails to present evidence that could lead a reasonable jury to conclude

that Anderson was personally involved in a retaliatory destruction of the property, I will grant

defendants summary judgment on this claim.

B. Due process

Vega alleges that defendants destroyed his property for false reasons without giving him

a chance to challenge that determination, even though there was a process for doing so. A

procedural due process violation occurs under the Fourteenth Amendment when a state actor

deprives an individual of a constitutionally protected interest in “life, liberty, or property”

without providing adequate process. To establish a Fourteenth Amendment due process claim

about the deprivation of a property interest, a plaintiff must show that (1) he had a

constitutionally protected property interest; (2) he was deprived of that interest; and (3) the

deprivation occurred without due process of law. LaBella Winnetka, Inc. v. Village of Winnetka,

628 F.3d 937, 943–44 (7th Cir. 2010).

It’s undisputed that Vega was deprived of his property; his materials were indeed

discarded. The parties dispute whether this means he was deprived of a constitutionally

protected property right. Defendants contend that Vega lost any property interest in those

materials once they became damaged to the point of being hazardous.

Alsum-O’Donovan says that she found it physically uncomfortable to be in the room

with the property because of the fumes coming from the property, that there was ash, soot, or

fire-extinguisher chemicals on some of the property, and that all of the printed or written

materials were “saturated with smoke and water.” She says that she ordered the items to be

thrown away as contraband posing a health or security concern, and DAI Policies 309.20.03

and 306.00.16 appear to allow prison staff to immediate discard hazardous materials such as

“fecal matter, open food, [and] intoxicants.” Staff makes a record by photographing the

materials, but the prisoner does not first have a hearing or a chance to direct the material

somewhere outside the prison.

If Vega’s materials were indeed badly damaged by the fire, that would be the end of

matter, because defendants would be entitled to qualified immunity. “[T]he due process rights

of prisoners are not absolute, but must be accommodated to the legitimate security needs of a

corrections institution.” Caldwell v. Miller, 790 F.2d 589, 609 (7th Cir. 1986). Vega has not

provided any authority, and I am aware of none, clearly establishing that inmates retain a

property interest in hazardous materials like water- and smoke-damaged items. And even if he

retained a property interest in those materials, Vega hasn’t provided any authority suggesting

that he would be entitled to any kind of predeprivation process before prison officials disposed

of those hazardous materials. Summary judgment to defendants would be required under the

doctrine of qualified immunity. See D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (Government

officials entitled to qualified immunity from personal liability in lawsuit unless conduct violated

federal statutory or constitutional right and unlawfulness of conduct was “clearly established

at the time.”).

But Vega argues that Alsum-O’Donovan is lying about the condition of his materials.

He says that the video and photographic evidence show that his property was not burned,

soaked by water, or stained by ash or soot. In particular, he says that this evidence shows that

prison staff and firefighters didn’t douse his property with water because his materials and the

floor of his cell do not appear to be wet.

Vega is correct that the video of the cell interior, the CCI staff photos, and the

firefighters’ photos do not show the floor of the cell to be covered in water, although it is

covered in ash and soot. The photos of his property do not appear to show those materials

covered in ash or sopping wet. But the photos are inconclusive: they were not taken close

enough to the property and are not clear enough to tell for sure what condition those materials

are in. Vega does not raise a genuine dispute regarding Alsum-O’Donovan’s statements that it

was difficult to be in the room with the materials because of the fumes wafting from the

property.4

But these claims don’t hinge on whether the materials were indeed damaged as Alsum-

O’Donovan says. Even if Vega’s property was intact and Alsum-O’Donovan violated DOC

regulations by destroying the materials, Vega can’t succeed on a due process claim. So there is

no need for a trial to resolve the dispute about the condition of Vega’s property.

Courts have consistently held that due process claims for deprivation of an arrestee’s or

prisoner’s property fail where the plaintiff has adequate postdeprivation remedies. See, e.g.,

Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional “random and unauthorized”

destruction of inmate’s property did not support due process claim where postdeprivation

remedies available); Davenport v. Giliberto, 566 Fed. Appx. 525, 529 (7th Cir. 2014) (negligent

loss of arrestee property did not offend due process, and would not even if intentional, because

state-law claim for conversion was available); Munson v. Gaetz, 673 F.3d 630, 638 (7th Cir.

2012) (inmate “received all the process he was due in the form of a written notice explaining

why he couldn’t possess the books and a meaningful chance to be heard” in his grievance

4 Vega argues that O’Donovan’s declaration testimony about her discomfort with the fumes

from the damaged property is false because she did not tell the grievance examiner that or

include that in her answer or interrogatories. But O’Donovan is free to tell the full story of her

firsthand account in her declaration. None of Vega’s interrogatories ask O’Donovan a question

to which her testimony about fumes would have been an appropriate answer. See Dkt. 40-12.

proceedings); Tyler v. Wick, No. 14-cv-68-jdp, 2016 WL 5496631, at *6 (W.D. Wis. Sept. 29,

2016) (civil detainee had adequate postdeprivation remedies to challenge loss of property and

money), aff’d, 680 F. App’x 484 (7th Cir. 2017).

Vega had, and indeed used, the administrative grievance process. And he had other

meaningful postdeprivation remedies available. See Tyler, No. 14-cv-68-jdp, 2016 WL

5496631, at *6 (discussing Wisconsin causes of action for conversion or damages from injury

to property); see also Hamlin v. Vaudenberg, 95 F.3d 580, 585 (7th Cir. 1996) (inmate complaint

review system, certiorari review under Wisconsin law, and Wisconsin tort remedies against

prison officials are adequate remedies for deprivation of good-time credits). Because he could

have been compensated for his property afterward, the loss of Vega’s property, even if it had

been undamaged, does not give rise to a due process claim under the Constitution.

I will grant defendants’ motion for summary judgment on Vega’s due process claims.

C. Access to the courts

Vega alleges that because his legal papers were among the lost property, he was unable

to file an appeal or postconviction motion that he had been planning to file concerning a 1993

conviction. Prisoners have a constitutional right to “meaningful access to the courts” to pursue

postconviction 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). To

succeed on such a claim, a plaintiff must show that the defendants’ interference caused an

“actual injury,” which means that it must have caused the plaintiff to lose a meritorious claim

or the chance to seek particular relief. Christopher v. Harbury, 536 U.S. 403, 414 (2002); Lewis

v. Casey, 518 U.S. 343, 346–348 (1996).

But Vega’s claim fails because this court cannot grant an access-to-the-courts claim that

would necessarily imply the invalidity of his underlying conviction. In Heck v. Humphrey, 512

U.S. 486, 487 (1994), the Supreme Court held that a prisoner is barred from pursuing a § 1983

claim when a “judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Cases since then had expanded the reach of Heck to include access-to-

the-courts claims about challenges to the plaintiff’s conviction. See, e.g., Hoard v. Reddy, 175

F.3d 531, 534 (7th Cir. 1999) (“where the prisoner is complaining about being hindered in his

efforts to get his conviction set aside, the hindrance is of no consequence if the conviction is

valid, and so he cannot get damages until the conviction is invalidated.”). Because Vega has

not yet obtained a favorable termination of his conviction, he can’t sue defendants for money

damages for impeding his right of access to the courts. I will grant defendants’ motion for

summary judgment on this claim.

ORDER

IT IS ORDERED that:

1. Plaintiff Alfredo Vega’s motions to proceed to trial, Dkt. 61 and Dkt. 62, and his

motions for court demonstration, Dkt. 49; Dkt. 60; Dkt. 64, are DENIED.

2. Defendants’ motion for summary judgment, Dkt. 28, is GRANTED.

3. The clerk of court is directed to enter judgment for defendants and close this case.

Entered September 24, 2020.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge