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COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1496
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
THOMAS W. REIMANN,
Plaintiff-Appellant,
v.
RUSSELL LEIK, STEWART
SIMONSON,
ROBERT KENT and
PATRICK PFISTER,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Brown County:
WILLIAM M. ATKINSON, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Cane, P.J., Myse
and Carlson, JJ.
PER
CURIAM. Thomas Reimann appeals a summary judgment dismissing
his civil rights action against several prison system officials. He argues that the trial judge should have
recused himself and that outstanding issues of material fact preclude summary
judgment. We conclude that summary
judgment is not appropriate for one of Reimann's causes of action. We reject the remaining issues raised on
appeal. Therefore we affirm in part,
reverse in part and remand for further proceedings.
Reimann was incarcerated
at the Green Bay Correctional Institution (GBCI) from 1990 until he was
transferred in 1995. In 1992, Reimann
was labeled a security risk after an individual incarcerated in the Dane County
Jail informed police that he was aware that Reimann was planning to escape from
custody during one of his excursions from the prison. To substantiate this claim, the informant, posing as Reimann's
attorney, telephoned Reimann and engaged in a conversation that suggested an
escape plot. Throughout his time at
GBCI, Reimann filed many lawsuits on his own behalf and assisted other inmates
in filing lawsuits. Reimann also made
numerous open records request for other inmates' criminal records. Shortly after filing a lawsuit against
Authorized TV, Reimann was transferred to another prison.
Reimann's complaint
alleges that Security Director Kent, Department of Corrections Classification
Chief Leik, and other prison personnel violated his First Amendment rights by
interfering with his ability to be a "jailhouse lawyer," unlawfully
opened and inspected his incoming mail including letters from attorneys and
courts, falsified his prison records and transferred him to another prison in
retaliation for filing the lawsuit against Authorized TV.[1] The trial court entered summary judgment
dismissing all claims.
Section 802.08, Stats., provides that summary judgment
shall be granted when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Initially, summary judgment review requires an examination of the
pleadings to determine whether a claim has been stated and whether a material
issue of fact is presented. Grams
v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980). If the complaint states a claim and the
pleadings show the existence of factual issues, the court examines the moving
party's affidavits or other proof to determine whether the moving party has
made a prima facie case for summary judgment.
Id. To make a
prima facie case for summary judgment, a moving defendant must show a defense
that would defeat the plaintiff's claims.
Id. If the moving
party has made a prima facie case for summary judgment, the court must examine
the affidavits and other proof of the opposing party to determine whether there
exists disputed material facts or facts from which reasonable alternative
inferences may be drawn. Id.
Reimann contends that
his First Amendment rights were violated when prison officials interfered with
his ability to provide legal assistance to other inmates. An inmate does not have a constitutional
right to provide legal assistance to fellow inmates. Williams v. Nix, 1 F.3d 712, 716 (8th Cir.
1993). Reimann alleges that other
inmates are left without legal assistance in his absence. However, any cause of action regarding
access to the courts would apply only if GBCI did not provide reasonable
alternative assistance such as a law library.
See Shango v. Jurich, 965 F.2d 289, 291 (7th Cir.
1992). All of Reimann's claims that
relate to his ability to act as a jailhouse lawyer fail to state a claim for
which relief can be granted and the trial court properly granted summary
judgment dismissing them.
The trial court also
properly dismissed Reimann's causes of action regarding inspection of his
mail. Administrative rules require
prison staff to only open and inspect "legal" mail in the presence of
the inmate. A violation of those rules
does not constitute a violation of a prisoner's constitutional rights. See Brewer v. Wilkenson,
3 F.3d 816, 825 (5th Cir. 1993). Even
opening "legal" mail does not necessarily implicate an inmate's right
of access to the courts. See Martin
v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987); Harrod v. Halford,
773 F.2d 234, 235 (8th Cir. 1985), cert. denied, 476 U.S. 1143
(1986). The record contains no evidence
that the incoming mail inspected outside of Reimann's presence consisted of
nonpublic legal documents or caused specific prejudice in any of his lawsuits. Reimann has presented no evidence that the screening
of his incoming mail for contraband caused him any specific harm.
Summary judgment is not
appropriate to resolve Reimann's allegation that he was transferred in
retaliation for a lawsuit filed against the owner of Authorized TV and that
prison officials covered up the retaliatory transfer by falsifying his prison
records. The complaint and an affidavit
filed in opposition to the motion for summary judgment state that Kent is a
friend or relative of the owner of Authorized TV. Reimann alleges that the owner made threatening remarks to
Reimann demanding that he dismiss the lawsuit.
The proximity in time between the filing of the lawsuit and the transfer
would allow a reasonable inference that the transfer was retaliatory. While the defendants offer other reasons for
the transfer, those reasons depend on the accuracy of the prison records and
create a question of fact regarding the defendants' motives or intent. Questions of intent are not properly decided
on a motion for summary judgment. Lecus
v. American Mut. Ins. Co. of Boston, 81 Wis.2d 183, 190, 260 N.W.2d
241, 244 (1977). Because material facts
and disputing reasonable inferences are not properly resolved on summary
judgment, we reverse the part of the judgment that dismisses the cause of
action for retaliatory transfer and remand the cause for further proceedings.
Finally, there is no
basis for Reimann's argument that the trial judge should have recused
himself. Recusal is necessary only when
a judge makes a determination that, in fact or in appearance, he cannot act in
an impartial manner. State v.
American TV & Appliance, 151 Wis.2d 175, 183, 443 N.W.2d 662, 665
(1989). The judge found that he was not
partial and did not appear partial.
Reimann's complaints reflect only his discontent with the judge's
determinations made in his judicial capacity.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.