11. Anthony J. Machicote of Winnebago, Wisconsin claims $156.27 for property allegedly lost or damaged by DOC staff. The claimant was an inmate at Green Bay Correctional Institution (GBCI). He was placed in temporary lock up (TLU) at GBCI on 4/7/11. His property was packed up by GBCI staff and he was transferred to a single cell. On 8/31/11 the claimant was transferred from GBCI TLU to the Wisconsin Secure Program Facility (WSPF). He states that when he received his property at WSPF, a number of items were missing. The claimant states that he did not have access to these items while in TLU at GBCI and that, because he was in a single cell, the items could not have been used, traded, stolen, or given away as DOC alleges. The claimant also states that his dictionary was in good condition when he left GBCI but was damaged when he arrived at WSPF. WSPF staff did not allow him to have the damaged dictionary. The claimant notes that if the dictionary had been damaged prior to his transfer, GBCI staff would not have packed it up with his property. The claimant also states that his fan, which was packed up at GBCI prior to his transfer, never arrived with his property at WSPF. The claimant was reimbursed by DOC for the depreciated value of the fan. He believes he should be reimbursed for the full value of the fan because it was only a month old. The claimant requests reimbursement for the value of his lost and/or damaged property.
DOC recommends denial of this claim. DOC notes the constitutional protection of Sovereign Immunity, which provides that “[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state.” DOC asserts that the Wisconsin Supreme Court and Wisconsin Court of Appeals have found that the legislature never grants consent to be sued in tort actions and that there is no statutory consent by the state to be sued in tort actions. DOC states that this claim is a tort action and is therefore barred by the doctrine of Sovereign Immunity. DOC notes that the claimant has presented no evidence that he actually had much of this property in his possession when he was placed in TLU. DOC states that having a property receipt for an item and actually possessing the item are two different things. DOC notes that inmates often trade or barter items or use them up. DOC states that staff has no reason not to pack up all of an inmate’s property upon transfer to TLU or another institution. DOC states that the claimant was fairly reimbursed for his fan, which was obviously lost during the transfer to WSPF. DOC also states that it appears GBCI staff did not notice the damage to the dictionary when packing the claimant’s property for transfer, but WSPF staff found that the inside of the dictionary was no longer attached to the spine and therefore did not allow the claimant to have the dictionary. WSPF staff also did not allow the claimant to receive his deodorant or laundry detergent because the items were already open, which is against WSPF rules. DOC believes it is entitled to Sovereign Immunity and that the claimant’s allegations are meritless and that the claim should be denied.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one with the state should assume and pay based on equitable principles.
12. Ross Nashban of Glendale, Wisconsin claims $70.00 for money lost while in the custody of Division of Community Corrections (DCC). On 1/18/12 the claimant was placed in custody by his probation and parole agent and his property was left with the agent including $213, which was placed in an envelope. When the claimant was released on 4/12/12 and his property was returned to him by DCC staff it was discovered that $70 of the cash was missing. The claimant requests reimbursement for the money lost while under DOC control.
DOC recommends payment of this claim. DOC agrees with the facts of the situation as described by the claimant. The claimant had no control over the money once he was taken into custody on 1/18/12 and DOC believes he should be reimbursed based on equitable principles.
The Board concludes the claim should be paid in the amount of $70.00 based on equitable principles. The Board further concludes, under authority of § 16.007(6m), Stats., payment should be made from the Department of Corrections appropriation § 20.410(1)(B), Stats. 13. Terrance J. Shaw of Oshkosh, Wisconsin claims $275.00 for the value of a watch allegedly lost or stolen by DOC staff. The claimant is an inmate at Oshkosh Correctional Institution (OSCI). He states that on or about 10/3/11 he gave his watch to OSCI property staff to mail out for repair. The claimant states that he wanted to send the watch via US mail but that the property staff would not let him do so and required that it be sent by UPS. The claimant alleges that when he gave his watch to OSCI staff it created a legal bailment and that from that point on OSCI had a ministerial duty to return the watch to him. In early December 2011, Miller Clock Service informed the claimant that they had never received the watch. The claimant filed an inmate complaint, which was denied because OSCI told him he had to take the issue up with UPS. The claimant asked OSCI staff to provide him with the address for UPS but they refused to do so and told him to look it up in the library. The claimant notes that it would have been extremely easy for OSCI property staff to provide the UPS address because they have it on file. He also notes that it is a half mile walk to the prison library, which is difficult for him because of chronic arthritis and a heart condition. Finally, the claimant states there is no proof that OSCI staff ever gave the watch to UPS. He believes the watch may have been lost or stolen by OSCI staff. The claimant requests reimbursement for the value of his watch after depreciation, approximately $275.
DOC recommends denial of this claim. DOC records show that the claimant’s watch, with its UPS tracking number, was among the packages picked up by UPS at OSCI on 10/6/11. DOC states that once a package leaves the institution’s hands, it is no longer DOC’s responsibility and that any alleged “bailment” relationship between the claimant and OSCI ended once the package was picked up by UPS. DOC states that the claimant has access to the OSCI library and was free to look up the address and phone number of UPS in the phone book available to inmates. OSCI property staff gave the claimant the tracking number for his package and he should have pursued the issue with UPS but chose not to do so.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one with the state should assume and pay based on equitable principles.
14. Timothy Talley of Portage, Wisconsin claims $822.00 for 10 months of back wages due to his allegedly wrongful termination from the Badger State Industries (BSI) print shop at Columbia Correctional Institution. The claimant states that he injured his back while working at the print shop on 4/27/11. He went to the Health Services Unit (HSU) and was seen by the prison doctor, who gave him a form restricting him to “light duty” work. The doctor also said she would send a back brace to him for support. The claimant notes that the definition of “light duty” allows for inmates to return to work and to work at their “own pace” which is what the claimant did for the remainder of the day. The claimant states that the following morning he received a box from HSU with the back brace and some “miscellaneous papers.” He states that he did not read the papers at that time because a guard was waiting to escort him to work. He states that he again injured his back while working and returned to HSU for additional treatment. The claimant states that when he returned to his cell he was told he would receive a conduct report because he went to work while on a “no work” restriction. The claimant states that staff showed him the HSU paperwork accompanying his back brace, and that paperwork stated he was not allowed to work. The claimant notes that this form was filled out by an HSU nurse, not the doctor who examined him on 4/27/11. The claimant states he was also told he was fired from BSI and was not given a reason why. On 5/12/11 a disciplinary hearing was held regarding the conduct report and the charges against the clamant were dismissed due to the contradictory paperwork sent by HSU regarding the claimant’s work restriction. On 5/24/11 the claimant filed a complaint regarding his termination from BSI. The claimant alleges that during the investigation, BSI print shop supervisor, Ed Sawyer, said that the claimant was fired due to the conduct report. On 7/12/11, the claimant’s complaint was upheld, the decision stating: “if the basis of his termination was because of the conduct report then ICE recommends that the complaint be affirmed.” The claimant wrote to Mr. Sawyer about returning to work but Mr. Saywer told the claimant he would not be re-hired. The claimant alleges that it was only then that Mr. Sawyer stated that the claimant was fired for failing to inform his supervisor of his “light duty” work restriction on 4/27/11. The claimant believes Mr. Sawyer lied about the reason the claimant was fired. He also notes that Mr. Sawyer failed to follow DOC rules, which require supervisors to file a written decision regarding terminations with the Social Services Unit. Mr. Sawyer did not do so. The claimant requests reimbursement of his back wages.
DOC recommends denial of this claim. On 4/27/11, the claimant hurt his back at work and was sent to HSU for treatment. HSU issued him a Medical Classification document proscribing all but light activity. DOC states that the claimant violated DOC 313.08 (7), Adm. Code when he failed to inform his supervisor of his “light duty” restriction when he returned to work on 4/27/11. DOC states that the claimant was terminated for failure to follow this rule. DOC does not deny that the claimant received conflicting Medical Classification forms from HSU. Although the claimant’s conduct report complaint was upheld, the decision stated “if the basis of [the claimant’s] termination was because of the conduct report…” DOC states that the clamant was not terminated due to the conduct report but because he failed to inform his supervisor of any medical restrictions on his work duties issued by HSU on 4/27/11. DOC notes that Prison Industries are intended to be rehabilitative for inmates. DOC states that inmates employed by BSI are not employees of the state and have no right to employment at BSI, and that the claimant therefore cannot claim that he was “wrongfully discharged” from his position.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one with the state should assume and pay based on equitable principles.
15. Da Vang of Stanley, Wisconsin claims $5,309.60 for lost wages incurred because the claimant was not rehired for a Badger State Industries (BSI) job at Columbia Correctional Institution (CCI). The claimant states that he worked in the BSI print shop from 11/7/04 to 8/3/07. The claimant states that he gave two-week’s notice on 7/23/07 that he was quitting his job because he needed to focus on legal matters. The claimant alleges that the BSI shop supervisor at the time, Dave Ditter, twice asked him not to quit. The claimant also alleges that he was told by several BSI workers that Mr. Ditter was very upset that the claimant was quitting. The claimant states that he had received good work reviews from Mr. Ditter during his time in the BSI shop. The claimant states that on 8/12/07, six days after his last day at work, Mr. Ditter completed a poor work evaluation of the claimant, stating that he “would not rehire” him. The claimant believes this bad work review was retaliatory because Mr. Ditter was angry at the claimant for quitting. In July 2009, the claimant reapplied for a job at the BSI print shop but was not rehired. The claimant alleges that the current shop supervisor, Ed Sawyer, was influenced by BSI workers to hire their friends, who were less qualified than the claimant. The claimant also believes that Mr. Sawyer relied on Mr. Ditter’s final work evaluation, which was retaliatory and unfair. Finally, the claimant notes that there are no Asian workers at BSI and he believes this is discriminatory and contrary to BSI’s affirmative action policies. The claimant requests reimbursement for the wages he would have earned if he had been rehired at BSI.
DOC recommends denial of this claim. DOC disputes the claimant’s allegation that Mr. Sawyer’s hiring decisions are influenced by other inmates working at BSI. DOC states that inmates are hired based on their experience (both before and during incarceration) and on recommendations by staff from other jobs the inmates have held while at CCI. DOC notes that the claimant worked under the former shop supervisor, Dave Ditter, who is now retired. When the claimant reapplied for a job at BSI, Mr. Sawyer reviewed the claimant’s past evaluation and termination records, which showed that the claimant repeatedly failed to follow instructions and failed to complete jobs in a timely manner. Mr. Ditter specifically noted on the termination report that the claimant should not be rehired. Based on this information, Mr. Sawyer decided not to rehire the claimant. DOC believes this claim has no merit and recommends it be denied.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one with the state should assume and pay based on equitable principles.
The Board concludes:
That the following identified claimants are denied:
Casimir Borsowski
J&L Steel and Electrical Services
Clear Channel Outdoors, Inc.
Wisconsin & Southern Railroad
Progressive Universal Insurance Company
Elbert Compton
David Jessick
Mario A. Martinez, Jr.
Anthony J. Machicote
Terrance J. Shaw
Timothy Talley
Da Vang
That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under § 16.007, Stats: Dated at Madison, Wisconsin this 31st day of June, 2013.
STEVE MEANS
Chair, Representative of the Attorney General
GREGORY D. MURRAY
Secretary, Representative of the Secretary of Administration
BRIAN HAGEDORN
Representative of the Governor
JOSEPH LEIBHAM
Senate Finance Committee
HOWARD MARKLEIN
Assembly Finance Committee
