Wisconsin Legislature: 2020-09-01 Senate Journal

7. Timmy Johnson of Waupun, Wisconsin claims $466.00 for value of property that Department of Corrections staff allegedly lost or damaged and a related restitution deduction. Claimant alleges that when he was sent to segregation, DOC staff intentionally “lost” his radio; damaged his television, headphones, and sweatshirt; declared his tablet charger and cable cord/splitter contraband; and falsely denied the existence of his tablet. He believes staff did this in retaliation for an earlier dispute. Claimant filed in inmate complaint on 6/24/19 and DOC admitted losing the radio and awarded him $82 reimbursement, the depreciated value of the $95 radio. DOC then deducted restitution from that award, which lowered the reimbursement amount to $65. Claimant alleges that it is illegal for DOC to deduct restitution from money that inmates are awarded for lost or damaged property. Clamant states that his headphones and sweatshirt were not damaged before he was sent to segregation. Regarding his television, he points to the fact that DOC staff gave inconsistent statements about the damage, first claiming that the screen was broken and later saying that the cord was pulled out. Claimant denies that he ever approved destruction of the television and alleges that staff forged a document in order to make it appear that he did so. Claimant has provided a receipt and other documents as proof that he owned a tablet when he was sent to segregation, and that it should have been returned to him along with the charger DOC declared contraband. Claimant believes that numerous inconsistent and incorrect statements made by DOC staff are evidence of staff misconduct.

In response to his 6/24/19 complaint, DOC appropriately responded to the loss of claimant’s radio by awarding him the depreciated amount of $82. Claimant is incorrect that the deduction of restitution from this award was illegal. Because claimant had not purchased the radio himself, this award was considered “new money” and was therefore subject to restitution deductions. If he had purchased the radio himself, restitution would not have been applied. Because claimant’s headphones had a broken earpiece and the sweatshirt’s shoulder was torn, DOC staff properly designated those items as contraband. Claimant’s television was also declared contraband because it was damaged. Although a staff member initially described the damage incorrectly, the complaint examiner corrected the error and concluded that the television had a missing cord, not a broken screen. DOC notes that either type of damage would cause the unit to be confiscated as contraband. DOC states that on 8/8/19, claimant gave permission for the destruction of the television, which staff clearly noted on his TLU form. Finally, although claimant has provided a receipt showing he purchased a tablet in January 2019, he has provided no proof that the tablet was in his possession in June 2019, when he was taken to segregation. Items are traded by inmates and DOC cannot be held responsible for items not in an inmate’s possession at the time his property is packed by staff. DOC believes claimant has failed to prove his claim and that it 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 which the state should assume and pay based on equitable principles.

8. Norman Rhodes of Redgranite, Wisconsin claims $229.60 for the full value of a typewriter damaged by Department of Corrections staff. Clamant purchased the typewriter in February 2016. He was transferred to Redgranite Correctional Institution in November 2019. When he received his property, the typewriter print wheel would not “read” the correct letter. Claimant filed a complaint and DOC admitted it was at fault for the damage. DOC offered claimant the full replacement value of the typewriter or he could accept the unit “as is.” Because claimant was able to get the typewriter to work if he turned it off and on again, he accepted the typewriter. Claimant notes that a fire at the manufacturer in China impacted his decision because he believed he might not be able to get a replacement in a timely fashion, and that a partially working machine was better than none. Several days after he accepted the typewriter, it stopped working completely. He sent a request to DOC staff for the full replacement value of the typewriter, but staff told him his complaint had been closed when he accepted the machine “as is.” Claimant filed an appeal and DOC confiscated the typewriter as contraband but reimbursed him at a depreciated value of $56, instead of the full replacement value previously offered. Claimant believes DOC did this in retaliation because he filed an appeal. He disagrees with DOC’s assertion that the typewriter was “further” damaged while under his control, arguing that it was the same damage DOC staff observed when they allowed him to take typewriter. Finally, claimant alleges that, pursuant to DOC § 303.38, staff should never have allowed him to take the typewriter once it was damaged. He requests reimbursement for the full replacement cost of the typewriter.

DOC recommends denial of this claim. DOC admitted that the typewriter was damaged while under staff control. Claimant was informed by the Inmate Complaint Examiner that the typewriter had a depreciated value of $56. Claimant was allowed to test the machine in the presence of the ICE, and the machine was not fully functional. However, DAI policy 309.20.03(I)(F)2 allows that “[p]roperty items that have minor damage, are still in working order and are not a safety risk may be allowed to be retained by the inmate.” Because the damage to the machine was observed to be minor, claimant was given the option of receiving the full replacement value of the typewriter—a generous offer that exceeded DOC requirements—or accepting it “as is.” Claimant chose to keep the typewriter. DOC notes that DOC § 303.38, which is cited by claimant, relates to inmates damaging or altering their own property without permission, and is therefore not relevant to this claim. DOC points to the fact that claimant’s own statements prove that the machine suffered additional complications to the point that it became unserviceable; it was not the same damage as when he first tested it. DOC believes claimant’s allegation of retaliation is baseless. DOC allowed claimant to keep the typewriter when the damage was “minor” however, once the machine became unserviceable it was appropriately designated as contraband and confiscated by DOC. Pursuant to DOC policy, the appropriate depreciation schedule was applied, and claimant was fairly reimbursed for the four-year-old typewriter in the amount of $56.

9. Robert Tatum of Green Bay, Wisconsin claims $255.37 for the value of a television, two bowls, and 25 newspapers allegedly damaged or wrongly confiscated by Department of Corrections staff during a cell search. Claimant states that the search of his cell violated Division of Adult Institutions policy 306.16, which only allows one cell search per month. He alleges that officers conducted the search and damaged and confiscated his property in retaliation for his prior complaints against them. Claimant states that his television had some minor damage prior to the search but was further damaged by the officers. He disputes that he was always next to the TV during the search, as DOC alleges. He points to the fact that DOC did not review video from outside his cell, which could have proven that staff intentionally damaged his TV. DOC confiscated two bowls during the cell search. Claimant submits a March 2019 property receipt as proof that he owned the bowls and that they should not have been confiscated. DOC also confiscated 25 Wall Street Journals as “over the limit” for publications. Claimant alleges that he was not over the limit of 25 publications, but that the officers wrongly counted his cellmate’s publications together with his own. He alleges that after the search there were only 25 publications left in the entire cell when there should have been 50, because both he and his cellmate are allowed 25 publications. Claimant disputes DOC’s assertion that the mark on his property inventory indicates he had been left with 25 publications. He alleges that the “mark” is actually the number one, which proves that he was only left with one publication. Claimant filed an inmate complaint regarding this incident, but his complaint was denied.

DOC recommends denial of this claim. There is no DAI policy 306.16 that limits cell searches to once per month as claimant alleges. In fact, DOC 306.16(1) of the Administrative Code allows DOC to “search the living quarters of any inmate at any time.” The Inmate Complaint Examiner investigating the alleged damage to claimant’s TV found that the television was placed on a back table and that claimant was standing right next to that table the entire time. DOC also notes that if any further damage had occurred during the search, the TV would have been confiscated. DOC states that it was not able to review video related to the search because that video had been taped over by the time claimant filed his complaint. DOC states that two bowls were confiscated from claimant’s cell because he did not have any bowls on his property list. Claimant submitted a March 2019 property receipt as “proof” that he owned the bowls, however DOC notes that the original March 2019 receipt does not list the bowls, proving that claimant forged the receipt he submitted to the board. DOC states that claimant had almost 70 publications in his cell at the time of the search. Officers confiscated 42 of the older publications and left claimant with 25. DOC points to the fact that all the confiscated publications had claimant’s name on them, which proves his publications were not mixed up with those of his cellmate. Finally, DOC states that claimant’s property inventory does not show the number one in the publications field, but simply has a mark to indicate claimant had his full allowance of 25 publications.

10. Dominique Tovsen-Caseres of Waupun, Wisconsin claims $157.17 for the value of a television damaged on 1/8/19, allegedly due to negligence by staff at Waupun Correctional Institution (WCI). Pursuant to DOC policy, inmates are required to leave their cells open when they are taken to the showers. Claimant states that staff is responsible for supervising the open cells but that there are rarely staff left stationed at the “bridge” when the inmates on his unit go to shower. Claimant alleges that on the date of this incident, no staff were supervising the open cells on his unit. When he returned from his shower, he discovered that someone had punched a fist-sized hole in the screen of his television, cut the power cord to his radio, and poured water over both the TV and radio. Claimant points to a statement by inmate Mark Walters, who lives two cells down, that he saw another inmate enter claimant’s cell and heard a smashing sound before the inmate ran out of the cell. Claimant filed an inmate complaint, which was denied. Claimant notes that it would be absurd for him to damage his own property and risk not being reimbursed, or if reimbursed, only at a depreciated value that would not cover the cost of a new TV. Claimant alleges that WCI has been found negligent in its dealings with inmates more than any other institution in the state and is chronically understaffed, which may explain why open cells are routinely left unmonitored. Finally, although DOC alleges that it is not liable for property loss or damage caused by another inmate, Foy v. State, 182 AD 2d 670, found that a state is not immune from liability when it negligently failed to secure an inmate’s cell. Clamant had his radio repaired and is only seeking reimbursement for his destroyed TV.

The Inmate Complaint Examiner’s investigation found that Officer Smith, who was on duty at the time claimant’s unit was showering, reported no incident of an unauthorized inmate entering claimant’s cell. DOC points to the fact that staff at both the Officer and Sergeant stations are within 30 feet of claimant’s cell and would have seen if another inmate had entered the cell. Because DOC found no evidence that another inmate entered claimant’s cell his complaint was denied, and claimant did not appeal that denial. DOC believes claimant has provided no evidence of negligence by DOC staff and that his claim should be denied.

11. Jibril Wilson of Green Bay, Wisconsin claims $148.98 for the value of a television allegedly damaged by Green Bay Correctional Institution staff. On 10/5/19, Officer Pecor asked claimant a question about his cellmate. Claimant refused to answer and alleges that Pecor threatened to “destroy” his cell if he did not cooperate. Pecor sent claimant and his cellmate downstairs while he searched their cell. Claimant alleges that his TV was working prior to the search but when he returned to the cell afterwards, his TV was broken. Claimant asked Pecor why he’d broken the TV and Pecor allegedly laughed and said the TV was not broken. Claimant reported the broken TV to Sgt. Linssen and filed an Inmate Complaint, which was denied. Claimant notes that the ICE investigator failed to interview his cellmate, who could have testified that claimant’s TV worked prior to the cell search. Claimant believes it is unlikely that Officer Pecor would not return to remove broken property from his cell and that he falsified the cell search report. Claimant believes Pecor broke his television in retaliation because claimant did not answer his question. He requests reimbursement for the full value of the TV.

An investigation into claimant’s complaint found that Officer Pecor had noted on the cell search form that claimant’s TV was already damaged when the search occurred. The Inmate Complaint Examiner spoke with Pecor, who indicated that he had removed the cellmate’s TV, which was also damaged, but forgot to return to remove claimant’s damaged television. DOC believes claimant’s complaint was properly investigated and denied, and that claimant has provided no evidence to support his allegation that Officer Pecor damaged his television. The Department of Corrections recommends denial of this claim.

12. George Wilson of Waupun, Wisconsin claims $96.70 for the value of tennis shoes, headphones, and a t-shirt allegedly lost by Department of Corrections staff at Waupun Correctional Institution. Claimant was sent to segregation on 1/18/20, and his property was packed and removed by staff. When he later received his property inventory, he noticed that several items were missing. Claimant notes that he has receipts for the items and points to a 6/14/19 document where staff acknowledges he owned the tennis shoes. Clamant alleges that another inmate saw staff carry claimant’s white tennis shoes out of the cell. Claimant disputes DOC’s assertion that his cellmate was present when his property was packed; his cellmate was out on a medical appointment. Claimant filed an inmate complaint regarding this matter, which DOC denied. Claimant notes that it is not possible to fit all property inside the footlocker provided by DOC. Finally, claimant states that the fact that he had another inmate’s television in his property is proof that DOC staff is careless when handling inmate property.

DOC recommends denial of this claim. DOC states that when claimant was sent to temporary lock-up, Officer Hibma went to his cell to remove his property. Hibma asked claimant’s cellmate to separate his property from claimant’s and after he did so, she removed claimant’s property from the cell. DOC records indicate that claimant’s cellmate was scheduled to leave the institution at 1:20 PM and that claimant’s property was packed at 1 PM, which leads to the reasonable conclusion that the separating of claimant’s property occurred prior to 1 PM, while his cellmate was present. Officer Hibma noted that claimant’s footlocker was locked at the time. DOC states that inmates are directed to lock valuables in their footlocker to prevent theft. DOC points to the fact that there have been numerous incidents of claimant possessing property belonging to other inmates and notes that when his property was inventoried in this incident, he had a television belonging to another inmate. DOC states that this is not proof of staff negligence, but of claimant’s long history of trading property with other inmates. DOC believes it is likely that claimant traded away the property that he now alleges was lost by DOC staff.

The Board concludes:

That payment of the amounts below to the identified claimants from the following statutory appropriations is justified under Wis. Stat. § 16.007 (6)(b).

Richard A. Lawrence Jr. $6,000.00

Robert Schultz $4,000.00

That the following identified claimants are denied:

Carter Dedolph

Benjamin Werlein

Ryan and Richard Leaver

Glenn & Lorraine Lemmenes

Timmy Johnson

Norman Rhodes

Robert Tatum

Dominique Tovsen-Caseres

Jibril Wilson

George Wilson

Dated at Madison, Wisconsin this 28tht day of August, 2020.

COREY FINKELMEYER

Chair, Representative of the Attorney General

AMY KASPER

Secretary, Representative of the Secretary of Administration

LUTHER OLSEN

Senate Finance Committee

TERRY KATSMA

Assembly Finance Committee

RYAN NILSESTUEN

Representative of the Governor

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