# Vega, Alfredo v. Anderson

> District Court, W.D. Wisconsin · September 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10721678

## Case

- **Court:** District Court, W.D. Wisconsin
- **Decided:** September 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10721678. Public record. Not legal advice.