Santiago v. Ware

representative Lydia Santiago, as personal Plaintiff-Respiondent, Santiago, † of Jaime Estate v. Zangl Wayne Mixdorf, Todd Kathleen Ware, Defendants-Appellants. Danner, Dennis Appeals Court of 10, 1996. July on 95-0079. Submitted No. —Decided briefs 30, 1996. September 356.) (Also in 556 N.W.2d reported denied. to review Petition † the cause was defendants-appellants

For E. Doyle, attorney submitted James on the briefs Nicks, J. Stephen attorney assistant general, general.

For cause was plaintiff-respondent on the brief of Lawrence Bensky submitted Melanie Cohen & Sinykin of Madison. Lafollette P.J., and C.

Before Paul Gartzke and Dykman, D. Reserve Sundby, Judges. Robert GARTZKE, Ware, Kathleen Judge. Reserve Danner Zangl Todd and Dennis from appeal to Jaime an judgment awarding damages Santiago, (WCI). The inmate at Correctional Institution Waupun defendants are state whose duties prison employees include the of inmates. The disciplining underlying damages action is damages 42 under U.S.C. 1983 and negligence. under state law for (1) Santiago §The 1983 issues are whether: had a liberty having mandatory interest not his release remaining community date extended and in in a (2) program; Santiago residential confinement procedural waived process objections by raising due not them disciplinary hearing at his and on administrative (3) appeal; presented the evidence at disciplinary hearing process satisfies due (4) requirements; the defendants' acts were random deprive Santiago and and unauthorized did not of due adequate remedies; because he had state (5) immunity enjoy qualified the defendants from this negligence suit. on The issue the state law claims against Zangl Ware, and Danner is whether enjoy discretionary immunity. defendants Santiago liberty We conclude had a interest having mandatory extended, date release but not in remaining community-residential ain confinement program. Santiago We conclude that waived all procedural process objections, except due for one: that presented hearing satisfy the evidence at his did not process requirements. objection Because is procedural process, one of rather than substantive due prevail we conclude defendants under random unauthorized conduct defense. Because our disposition, qualified do not reach the we issue of immunity.1 Zangl Ware, alsoWe conclude defendants 1Qualified immunity v. immunity is from suit. Leik, (Ct. 786, 790-91, 2d App. Wis. 508 N.W.2d 1993). public only purpose spare Its is to official not from liability unwarranted but from "unwarranted demands customarily upon defending" long, imposed those drawn-out Siegert Gilley, Id. at v. 791, 508 lawsuit. 458 (quoting N.W.2d at from immunity discretionary and Danner enjoy law claim. We reverse. negligence state Santiago's

HH BACKGROUND2 was a thirty-seven-year-old Jaime Santiago system who inmate in the Wisconsin correctional in Nursing Manor Home Plymouth resided at for amyotrophic under care progressive Milwaukee as (ALS), Gehrig's lateral sclerosis also known Lou from He had transferred Columbia disease.3 been Community to the Residential Correctional Institution (CRC) 8, 1992, January on the Confinement program on he entered Manor.4 Plymouth same date which 1992, to ALS had By Santiago's progressed June he not use his or stand point the where could hands He had little or no use of most of his without assistance. (1991)). 226,232 Although normally 500 would address U.S. we first, immunity the qualified the issue we have instead followed presented supplemental in the on order issues State's brief — Conner, —, 115 2293 the effect of Sandin v. U.S. S. Ct. (1995), appeal in its initial to this on this and brief court. 2 indicated, our the Unless otherwise we draw facts from findings undisputed trial of fact and the facts of record. court's 20, 1995, appeal He this was died on November while sister, Santiago, pending. Lydia been His has substituted him. 301.046(1), requires Department Section the Stats., (DOC)to operate program Corrections establish and CRC prisoners places to in their or other order "confine residence by designated department." DOC places determines 301.046(3), prisoner eligibility program, for the and must by prisoner program monitor the use confinement under continuously prisoner's of an device "worn on the electronic 301.046(5). person." Section fed, muscles. He had be bathed cared for 1992, others. By July badly was speech impaired, it difficult for making others understand him.

On 18,1992, June Santiago had an with argument a cook at Manor. The next Plymouth day, director Schubert, Manor met Jon Plymouth with probation parole agent, and Schubert's supervisor, defendant Kathleen Ware. At the end of the meeting, the director decided would no longer reside at Manor. Plymouth 20,

On June Santiago was transferred to W Cl, where he resided at Health Services Unit. He remained in temporary status lockup pending investigation Plymouth incident at Manor. 29,

On June a Schubert conduct prepared report on the incident. He not did interview or Santiago the cook about their argument.5 He did not personally system In prison the report operates a conduct as the report equivalent police complaint. of a and criminal WISCONSIN 303.66(1) part: Adm. CODE in requires "[A]ny § DOC relevant staff member who observes or finds out about rule a violation any investigation necessary shall do to assure himself or herself occurred, that a violation and if he or she a believes violation occurred, has shall write a report." conduct In the conduct report, the staff member in must "describe the detail facts and her, other what staff members told him or and list all sections disciplinary [of the rules Code contained WiS.Adm. ch. DOC allegedly 303] which . .." were violated. WiS. Adm. Code DOC§ 303.66(2). security

The director at the institution where the inmate report the resides must review conduct to determine if the facts alleged guilt alleged support finding specified could a for of the 303.67(1) violations of the DOC code. WiS.Adm. CODE DOC and § (3). security review, After report the director's the conduct is 303.75(1) upon served the inmate. See Adm. CODE DOC WiS. §§ 303.76(1). and nursing Santiago rules had

determine the home officer's He on another correctional violated. relied charges against made for he recommendation the Santiago Santiago. report alleged The conduct (threats), §§ DOC 303.16 violated Wis. Adm. Code (violation conduct), (disruptive 303.63 303.28 report policies procedures). did institution pertinent policies procedures. specify institution or acting security Serving director, as Ware reviewed report. incorrectly classified the the conduct She major § DOC as under WlS. offenses Adm. Code 303.68(3) looking provision. at that without WISCONSIN 303.68(3) § rule DOC lists certain DOC Adm. Code major as offenses. None violations automatic Santiago's charged category.6 violations fell into this Krueger July Sergeant 1, 1992, Alvin served

On Santiago report with the conduct and with Notice Major Disciplinary Hearing Rights Form. That form Due contains a section entitled "Waiver of Formal (Major) Hearing," completed by to be Process Krueger Santiago helped fill inmate. When out the Krueger mistakenly middle form, marked a box right to a of the form indicate waived process hearing. Santiago pointed formal due out Krueger Krueger it mistake, and out. did not scratched 6 major disciplinary A offense is violation rule major penalty may imposed. Adm. CODE DOC which a be WlS. 303.68(l)(c). major penalty may imposition A of include adjustment good program segregation, or loss earned time or of mandatory DOC extension of a release date. CODE § WlS. Adm. 303.68(l)(a). All are classified as minor. A minor other offenses penalty may reprimand, privileges, loss consist of of recreation confinement, privilege, building specific or room loss of a extra (1) 303.68(l)(b) duty or restitution. WlS. Adm. CODE DOC§ (d). box,

check a second form, located at bottom of the that also would indicate hearing. of a waiver formal due July Zangl, 20, 1992, On defendant Todd a supervisor, Division of Intensive Sanctions held a hearing report. Santiago on at WCI the conduct had not Zangl coming hearing, been told that was to hold the and he had been contacted an advocate or prepared policy a defense. He had not been told which procedure charged violating or he was with under WlS. § Adm. Code DOC 303.63.

Zangl hearing hearing" conducted the as a "waiver process hearing.7 Zangl rather than due a did not carefully Major Hearing review Waiver of despite responsibility Form, so, to do he and missed regulation the cross-out in the waiver box. No rule or requires hearing holding a officer before a waiver hearing speak verify inmate with the that he has process rights. Zangl waived his due Because could not Santiago, Holly Meier, understand he asked nurse at help, Santiago Zangl WCI, to translate. With her told process hearing, Zangl he wanted a due but continued hearing. with the waiver hearing, Zangl

At the conclusion of the found Santiago guilty violating §§ of DOC WlS. Adm. Code conduct) (violation (disruptive 303.28 and 303.63 types hearings Both are used to an determine inmate's guilt or charges report. innocence contained in a conduct major may right Inmates accused violations waive the to a CODE WlS.Adm. process hearing any writing at time. DO§ 303.76(2). C process hearing The inmate a due who waives has a (a hearing hearing) using procedures waiver the same as for Id. minor violations. The inmate does not advocate have staff may testify not confront have witnesses or witnesses on his 303.75(4). or her behalf. WlS.Adm. CODE DOC and of procedures) guilty institution and policies (threats). Zangl Adm. Code WlS. DOC 303.16 violating § Santiago's mandatory of ten-day a extension imposed him the review program release date and referred to (PRC).8 1992, PRC 21, the July On committee The trial court found terminated from CRC. Santiago PRC, to remained Santiago as result of referral a 30, 1993.9 the until June WCI, hospital, at to determination appealed Santiago Zangl's Danner, Intensive Sanctions Dennis a Division of only as for his ground appeal cited supervisor. placements in approves inmate CRC. Wis. PRC all Adm. A 327.06(6). by the Inmates in CRC must Code DOC abide § any facility they and rules in which are housed. procedures of 327.09(l)(d). If, process after a due § Wis. Adm. Code DOC hearing, department the inmate has violated determines facility in which the inmate is held or to which the rules of assigned, the case referred the PRC the inmate is is possible termination of CRC status. Wis. Adm. review and Code 327.11(3)-(6) 327.10(3), purposes DOC and 327.13. For §§ termination, social the PRC consists three members —a worker, department a a correctional officer and member 327.11(1). The supervisory Adm. CODE DOC staff. WlS. § may CRC department temporarily remove inmate from pending disciplinary due status outcome 327.11(4). hearing DOC The or PRC review. WlS. CODE § Adm. process hearing generally conducted in accordance must be Wis. Adm. Code DOC 303.64 to 303.87. Wis. with §§ Adm. Code parties have not a waiver DOC 327.13. addressed whether hearing assignment. may be used to terminate CRC 30,1993, Santiago transferred to CRC On June was back 11, nursing and to a home Janesville. On October admitted to the Home in he transferred Marion Catholic was where, July 27, 1994, charged he was with Milwaukee on making Waupun, he threats transferred back where throughout the trial. remained guilty Zangl he

that was not had not considered his happened. September 1, account of what On Zangl’s Danner affirmed Zangl decision. Danner found that Santiago's happened considered account of what rendering "Santiago's before his decision and that Plymouth [at Manor] behavior created risk a of serious disruption injury person." and of risk to another September Santiago

On 9, 1992, filed his complaint in circuit court. While that action was pending, rehearing Danner ordered on report. Santiago process conduct received a due hearing February on 8, 1993, examiner, before a new Santiago Daniel Benzer. had an advocate. Schubert only Santiago was the witness. Examiner Benzer found guilty violating §DOC not Wis. Adm. Code 303.63 (violation policies procedures) of institution and and guilty violating § Wis. Adm. Code DOC 303.28 conduct). (disruptive imposed ten-day He extension Santiago's mandatory date, release without a referral to the PRC.

II. TRIAL COURT DECISIONS (1) Santiago's complaint alleged defendants had: right violated his to due under the Fourteenth (2) Amendment of the United States and Constitution negligently performed ministerial duties.10 He requested compensatory damages punitive for day spent program he each out of the CRC and for complaint sought damages The also for defendants having deprived right remedy by guaranteed him his to a art. I, 9 of Santiago the Wisconsin Constitution. deem We have this argument abandoned claim his failure to offer or support evidence to it. rights, "[a]ll relief other and further

violation of appropriate." deemed Pretrial Decisions

A. summary parties numerous motions filed judgment the trial and reconsideration. We summarize opinions written on motions. court's four Claim 1. Section Santiago's procedural due The court ruled that report process rights at the conduct were violated first hearing he did have a staff advocate or an because opportunity adequate prepare a defense. by failing § 1983 to raise the did not waive his claims appeal hearing in his administrative issue waiver Santiago had been denied substantive before Danner. process existed on due because insufficient evidence rehearing February guilty. The which to find him incomplete constitutional "an cure" 1993 was deprivations Santiago hearing. in the first sustained Santiago's court intent not to waive a full

The held hearing undisputed process that a factual due was but attempt dispute his to communicate existed whether Zangl intent to was effective. that Zangl not entitled to The court held that was qualified immunity Santiago's from on claim that suit procedural Zangl his due had violated substantive rights. Zangl process The court ruled that unreasonably hearing Santiago he held the if knew had process rights. not due If the fact-finder waived his effectively protested trial had found at that rights, Zangl process full due was waiver Santiago's qualified immunity from to suit on entitled Zangl procedural process qualified no due claim. had Zangl immunity regarding claim that had right process due violated his substantive since the requirement prison official "some have evidence". clearly finding guilt support to had been prior Santiago's hearing Zangl. before established qualifiedly The court held that Danner was not Santiago's procedural immune from and substantive process The court ruled that Danner had a due claims. duty presented at the conduct to review documents including report hearing, forms. The court waiver Zangl's "affirming failure to ruled that Danner's provide plaintiff hearing, a full absent with objectively waiver, unreasonable." an effective was finding guilt affirming "Zangl's Danner's without objectively some evidence was also Consequently, unreasonable." qualified Danner was not entitled immunity. Zangl

The court held that could not invoke "random and unauthorized conduct" defense because Zangl's conduct was not "unauthorized" because provide adequate postdeprivation the state failed to an appeal. remedy in the administrative pretrial not rule on decisions do court's Ware, against Santiago's § 1983 claim Negligence for Common Law 2. State Claim his duties were The court ruled that because discretionary Zangl ministerial, not entitled to was immunity. Santiago's On state law claim discretionary negligence, Danner was not entitled duty immunity he had a ministerial because Santiago had checked the waiver determine whether discretionary however, Danner was, entitled to box. immunity hearing regarding his evaluation of evidence record to determine whether sufficient Santiago guilty. existed to find Ware entitled to was immunity selecting the act because of offenses involves discretion. Findings

B. Trial Court's of Fact and of Conclusions Law three-day trial,

After a bench the court found that Zangl's findings guilt as a direct result of and Santiago's plaintiff security PRC, referral of to the changed classification was from minimum to maximum, terminated, his CRC status was and he was at held WCI until June 1993. The court found that had major PRC conducted its own review without both Santiago's

rule violations on record instead of relying Zangl's hearing, unlikely on it was that the PR changed security C classification, would have his placed nursing he would have been in another home. depression by being placed suffered at WCI (HSU) attempted Health Services Unit suicide. vintage The court described HSU as "Dickensian in its and bleakness." Zangl

The court concluded that had violated Santiago's right recklessly to due because he disregarded Santiago's for an desire advocate and for a process hearing. Zangl recklessly further (1) disregarded Santiago's rights because: he failed to determine under DOC both 303.63 Adm. Code Wis. charge requirements the lack of notice of and "the (2) Santiago guilty that section" and he found disruptive behavior on non-attributed evidence drawing improper Santiago's inferences from by failing statement and to list his written decision portions supporting statement guilt. determination of

The court concluded that Danner had violated Santiago's right process recklessly to due because he disregarded independently his duties to evaluate charge, § form, the WlS. Adm. CODE DOC 303.63 waiver designation major of the as under WlS. violations 303.68(3), lack of to Adm. Code DOC attribution report, and the contained in the conduct "facts" plaintiffs Zangl. contents of statement to defendant Zangl's The court determined that and Danner's power" they an "abuse of and that actions constituted recklessly had breached their state law duties Santiago process protections. provide with due negligently had and court concluded Ware right recklessly Santiago's process "due violated charged alleged properly and have his offenses classified." Santiago damages

The trial court awarded $500 rights Zangl's process due alone for violations of his damages he suffered reference to the further without The court awarded as a result of the PRC review. Santiago Zangl damages against Ware, and $10,000 injuries caused defendants' Danner Santiago's process rights due and violations of his attorney seemed to fees and costs. Because defendants inadequately court inferred trained and the have been they punitive malice, court did not award bore no Zangl damages. Danner declared that The court by denying process deprived him a of due had guilty hearing by finding him without guilt. It ordered evidence some expungement reliable ten-day extension of mandatory date. release

HHHHHH § SANTIAGO'S 1983 CLAIMS Liberty A. Interest

Santiago grounds his 1983 claim on his deprived liberty contention that he was interests argues liberty without due He he law. has having mandatory interests in not his release date maintaining agree extended and in his CRC status. We liberty having mandatory he in has a interest liberty release date extended. holdWe he has no maintaining interest in his CRC status. liberty

Certain interests in inherent the Due Process Clause—such as the conditional freedom held by parolees probationers subject and are not —and deprivation procedural without adherence to strict (10th safeguards. Harper Young, v. 64 F.3d (1996) 1995), granted, (citing Cir. cert. 116 S. Ct. 1846 Morrissey (1971), Gagnon Brewer, v. 408 U.S. 471 and (1973)). Scarpelli, commonly, v. 411 U.S. 778 More an liberty inmate's interests are created state law. — Harper, 64 F.3d at 564. In Conner, Sandin v. U.S. (1995), Supreme —, 115 S. Ct. 2293 Court held that may liberty protected by while states create interests the Due Clause, Process those generally

interests will be limited to freedom from which, exceeding restraint while not in sentence such an unexpected give manner as to rise to protection by the Due Process Clause of its own force, imposes atypical significant nonetheless hardship on the in ordinary inmate relation to the incidents of prison life. — (citations

Sandin, —, U.S. at 115 S. Ct. at 2300 omitted). longer engage reason, For that courts need no negative implication from in mandatory language for a "the search regulations" previously prison (1983), required by Helms, Hewitt v. 459 U.S. 460 (1989). Kentucky Dep't. Corrections, 490 U.S. — at Sandin, , U.S. 115 S. Ct. 2300. at — prisoner had no court held that Sandin segregated liberty remaining from interest free distinguished segregated However, confinement. it discipline as a from cases "where the confinement inevitably affect the duration of his State's action will — An Sandin, , 115 S. Ct. at 2302. sentence." U.S. at — mandatory in like inmate's interest his release date is liberty good-time in A interest in his interest credits. good-time of and is credits is one "real substance sufficiently Amendment embraced within Fourteenth (1974). 'liberty.'" 539, McDonnell, 418 U.S. 557 v.Wolff mandatory Wisconsin, In a state inmate is entitled to parole completed release on when he has two-thirds regulations sentence, have his unless violations mandatory conclude extended his release date.11 We liberty Sandin, retains a interest that under having mandatory in release date extended.12 11 302.11, STATS., part: provides relevant Section (1) mandatory parole [E]ach inmate entitled to release on is department. mandatory at release date is established two-thirds of the sentence.... (2)(a) any regulation prison Any inmate who violates required assigned neglects perform or duties is refuses or to or mandatory subject follows: 10 extension of the release date as to days offense, days days 40 20 for the 2nd offense and for the first subsequent the 3rd or each offense. 12 Dubois, 75 F.3d McGuinness v. See agree. Other courts Wood, (1st 1097, 1100 Gotcher v. 1996); F.3d 794, 797 66 n.3 Cir. 317 We turn to loss of his CRC assignment and his return to WCI. Neither event an imposed on the inmate in "atypical significant hardship relation to the incidents ordinary prison life." Sandin, , 115 S. Ct. at 2300. His transfer — U.S. at — subjected WCI him to conditions no different from those ordinarily by large numbers of other experienced Weld, inmates. 1156, See v. 73 F.3d 1160 Dominque (1st 1996) Cir. Sandin, that under inmate did (holding not have state-created liberty interest work release but see Roucchio v. program);13 Coughlin, 923 F. Supp. 1996). 360, (E.D.N.Y., While WCI be may (9th (N.D. 1995); McBride, 403, 406 Cir. v. Supp. Nelson 912 F. (E.D. 1996); Gudmanson, Ind. Priest v. Supp. 902 F. 1995). Wis. reasoning persuasive. The first circuit's is Were Santiago's argument prevail: open finding [W]e "atypical would the door to an . . . restraint" significantly whenever an inmate is moved from one situation to a is, nonetheless, common-place aspect prison harsher one that liberty example, existence. For interest could be claimed if an agreeable surroundings inmate were moved into less than his placement. Similarly, liberty might initial a' interest be claimed legislature whenever authorities or the state decided to eliminate programs furloughs. or changes, cut back work release or Such affected, painful regarded plaintiffs to those could be under argument implicating liberty though prisoner as interests even the placed going beyond customary rigors was never in conditions the outcome, prison believe, directly life. Such an we would conflict teachings. expressly with Sandin's Sandin's new standard was by adopted majority Supreme appropriate a of the Court "to afford flexibility trying manage deference and to state officials [Sandin],

volatile environment." 115 S. Ct. at 2299. The Court plainly process intended to eliminate the basis for federal due stemming changes claims from internal transfers and status that i.e., "atypical hardship," hardship beyond do not result in the ordinary prison norms of life.

318 vintage bleakness," that can in "Dickensian its ordinary hardly said to be at variance with be prison Indeed, life at WCI. life. it is incidents of liberty Santiago argues, interest is a Nor, as requirement Code DOC Wis. Adm. created 327.11(3) hearing" inmate have a "due that an type of terminated. This is the his CRC status is before mandatory negative implication from for a "search longer language" v. no make. Kirsch which courts need ( 761, 765 702, 712, 549 N.W.2d Endicott, 201 Wis. 2d — 1996) (citing App. , Ct. Sandin, U.S. 115 S. Ct. at — 2300). at Harper, 566-67, and 64 F.3d at cites (8th 1990), Cir. Lockhart, 908 F.2d 299 Edwards v. assignment proposition like was more that his CRC parolee inmate, therefore he than an of a that possessed assignment. liberty The interest in CRC

a. Pre-parole Harper Oklahoma's court reviewed program, Supervision in which Conditional custody" participants in "constructive remained department and resided of corrections but worked penal beyond confines of a state institution. the walls with a life outside liberty

The associated to an available penal facility dwarfs gainfully employed," to "be inmate. It is the freedom friends," and "to form the family and "to be with normal life." enduring attachments other 482, Ct. at 2601. It is Morrissey, U.S. at 92 S. 408 own, of one's without ability to reside a home bonds, immediate beyond the or fences or bars passage or wardens. authority guards (1st 1996), 1156, Weld, Cir. but see F.3d 1160 Dominque v. 73 1996). (E.D.N.Y., Supp. F. Coughlin, v. Roucchio prison simply outsidethe walls of doesnot alter the degree confinement; rather, it works a change confinement, fundamental in the kind of signals transformation that inherent panoply the existence of an liberty interest and necessitates the full procedural protections outlined in Morrissey. e.g., See, 481-84, id. at 92 S. Ct. at 2600- 02.

Harper, 64 F.3d at 566. parole

The Edwards court viewed and work program release under an continuum, Arkansas as a with more freedom and self-determination associated parole with and less with work Edwards, release. 908 work/study F.2d at 302. The Arkansas' release program, prisoner participants in which could live and facility work outside an institutional under the close supervision parole parole officer, was more like liberty arising therefore created a interest from the Due Process Clause.

Certainly subject Edwards is to more constraints in program parole, the . . . than she wouldbe if on but we find determinative the fact that she has been society. released from institutional life into applied guide constraints to Edwards serveto her world, the outside not ... to confine her to the equivalent ofan institutional life.

Edwards, 908 F.2d at 302-03. programs require

However, work release which daily inmates to return to correctional institutions do liberty not create a interest inherent in the Due (citing Process Clause. Id. at 301-02 Brennan v. (1st Cunningham, 1987); F.2d Cir. Hake v. (8th 1987); Gunter, 824 F.2d 610 Cir. Whitehorn v. (11th 1985)). Harrelson, 758 F.2d 1416 Cir. parole. than CRC

CRC is closer to work release is life, an of not a release from institutional but extension community 301.046, STATS., the it. Section establishes program as a correctional residential confinement Department Corrections.14 institution within the "confine[s] prisoners places in their of residence DOC designated by places department." the Section or other 301.046(1). participants "prisoners" CRC are and § "inmates." 301.046; Section Adm. Code DOC 327. WlS.

CRC inmates must continuously "wear an electronic device person." on the inmate's WlS. Adm. CODE subject 327.09(l)(q). They § are to all DOC DOC by disciplinary § codes as modified WlS. Adm. CODE DO 327.09(2) legal custody of, and in and remain in the C Department with, the institutional status 301.046(2); § Corrections. Section WlS. Adm. Code DOC 301.046, Stats., provides part: in Section relevant (1) community department operate and a The shall establish program as a correctional institution residential confinement charge superintendent. program, Under the the under the prisoners places department in their of residence or shall confine places designated by department.... other (2) (1) confined under sub. are under the care and Inmates institution, subject discipline control of the to its rules subject pertaining inmates of other correctional to all laws institutions.... (5) any prisoner's department The shall monitor confinement (1) continuously by the use of an electronic device worn

under sub. prisoner prisoner's person on the or the confinement designated by department. department supervised places The employment, may permit prisoner to confinement for leave education or other rehabilitative activities. (6) prisoner Any to remain within the intentional failure of a or her confinement or to return within extended limits escape superintendent prescribed by considered an time is 946.42(3)(a). under s. 327.07(5). thirty days placement, After in CRC an may participate inmate time leisure activities but only prior approval with of CRC staff member. WlS. 327.16(5). Special may § Adm.Code DOC conditions be placed telephone mail, on the inmate's visits and calls. 327.16(7). § Adm. Code DOC The CRC WlS. inmate's may any residence be searched at time. WlS.Adm.CODE 327.21(1). Department § DOC of Corrections provide assignment continues to the inmate on CRC private medical care if the inmate with does not have 327.16(3). health insurance. Adm.Code DOC Wis. home, Even if a CRC inmate resides in his he is electronically confined. He remains monitored as if he were behind bars and fences and "the within authority guards Harper, immediate or wardens." 64 charged escape F.3d at 566. He can be with should he 301.046(6), permission. leave without Section STATS. Santiago liberty Because had no interest in his CR § status, C he cannot recover under loss 1983 for of that resulting status and the return to WCA.

B. Waiver of Due Process Claims The State contends that because his appeal Zangl's administrative Santiago to Danner decision, from procedural process claim did not his rights disciplinary hearing, were the violated at the granted summary judgment trial court should have dismissing process his due claim on those errors against Zangl agree.15 and Danner. We

15 argues The State also defendants' actions were random postdeprivation adequate, unauthorized and remedies were immunity, qualified defendants were entitled to and the trial finding Santiago objected disciplinary court's that at

322 point only is at this Our discussion relevant having mandatory Santiago's liberty in not his interest release date extended. summary judgment have should been

Whether question granted is a of law we decide without Young, the trial court's decision. Lentz v. deference to (Ct. App. 457, 468, 451, 455 195 Wis. 2d N.W.2d 1995). Summary judgment procedure is used to genuine material fact issue of determine whether Boss, (1980), tried. Grams v. 97 Wis. 2d exists and must be 338-39, 473, 476-77 is one of the 294 N.W.2d describing summary judgment many cases methodology. repeat When, here, as We need not it. substantially forego undisputed, we material facts are methodology requires. step-by-step analysis (1988),16 Citing Casey, U.S. 131 Felder v. may require trial court held that a state court complainant remedies to exhaust state administrative complainant bringing § action unless the a 1983 before exception an to the exhaustion falls under exception remedies rule. Since no administrative applied, court concluded had not waived by failing claim in his 1983 claim U.S.C. rights clearly hearing of his due was to the denial procedural conclude waived his erroneous. Because we (other sufficiency than his of the evidence process claims claim) these appeal, we do not reach issues. on administrative 16 Casey, ... held that a Wisconsin notice- "In Felder v. we effectively shortened the statute statute of-claim requirement limitations on claims imposed an exhaustion employees pre-empted insofar against public agencies and was Rose, Howlett v. 496 U.S. applied it to 1983 actions." § as was (1990). 356, 377

323 appeal process rights administrative that his due had violated. been

The doctrines of waiver and exhaustion are application brought § distinct in their to 1983 actions by required inmates. An inmate cannot be to exhaust remedies,17 his administrative but the inmate can pursues § claim waive his under 1983 when he seeking administrative remedies without review errors he later claims had violated his due rights. prisoner process rights by failing

A waives his due object rights to when those are denied at an inmate disciplinary hearing. Murphy, 54, Saenz v. 162 2dWis. (1991). 57, 611, 469 N.W.2d 612 The waiver entitles prison alleged rights officials to have denied those summary judgment. 67, Id. at 469 N.W.2d at 617. The voluntary waiver is intelligent. if effective even it was not 64, Id. at 469 N.W.2d at 616. distinguished The Saenz court between the doctrines of remedies, waiver and exhaustion of but they policy underpinnings. noted had the same requiring parties court said to raise issues before the 17 Rights The federal Civil of Institutionalized Persons Act (CRIPA) required of 1980 prisoners adult to exhaust state administrative remedies if the provided remedies the state Vaade, with federal standards. Casteel v. comply 1, 167 Wis. 2d (1992). 5, 476, 481 N.W.2d Complaint 477 Wisconsin's Inmate System Id. comply Review did not with these federal standards. Act, Litigation 26, 1996, The Prison April Reform enacted requires exhaustion of administrative regardless remedies whether those remedies have been certified. Pub. No. 104- L. (1996). disposition, Because of our § we have not asked parties Litigation to brief whether the Prison Reform Act applied pending appeals. should be justice by trier of fact assists the administration of avoiding proceedings appeal wasteful on and remand resolve matters that could to have been resolved proceedings. previous 66, Id. at 469 N.W.2d at 616-17. require Those same reasons "motivated courts to inmates to exhaust their Id. administrative remedies." required 66, at 469 at 616. "If Saenz can to N.W.2d be bringing exhaust his administrative a remedies before object required alleged action, 1983 he can be to an rights violation of his due before the adjustment 66, committee." Id. at 469 N.W.2d at 617. year high later,

One our state court held that a prisoner need not exhaust his administrative remedies bringing § before a 1983 action in state court. Casteel v. (1992). Vaade, 1, 5, 167 2d 481 any Wis. N.W.2d "disavow[ed] The court intimation Saenz v. Murphy prison inmates must exhaust their they may administrative remedies commence a before Casteel, n.18, sec. 1983 action." 167 Wis. 2d at 21 (citations omitted). The court N.W.2d at 484 Casteel only addressed Saenz's discussion exhaustion doctrine and not the Saenz waiver doctrine. disciplinary

While reviewed errors at a Saenz hearing, apply hesitation its waiver we without appeals prison in the doctrine setting. administrative give prisoners right A state need not its appeal disciplinary decisions. administrative from Cf. (inmates receive 418 U.S. at 563-70 must Wolff, alleged notice of violations and a advance written found, written statement of the facts the evidence upon, disciplinary action, relied and the reasons for the they should be allowed to call witnesses documentary present and to have the evidence advocate). Thus, or staff assistance of other inmates process prisoners more than the Wisconsin affords procedure requires.18 Amendment The Fourteenth major hearings right includes the violation appeal. § Wis. Adm. Code DOC 303.76. administrative appeal administrative sense, In an is an extension that hearing disciplinary process. , Santiago's appeal hearing administrative from Zangl's officer decision to Danner did not claim process (liberally procedural construed) except due defects it claimed that insufficient evidence findings guilt. supported appeal, successful, if administrative could have process corrected the claimed errors in the same which process. he now contends denied him due We conclude right pursue § he to a 1983 claim the has waived on appeal errors he did not raise his administrative before Danner.19

Santiago argues that the doctrine Saenz waiver is inapposite independent because Danner had an obligation hearing regardless to review the record Santiago process whether raised the due issue in his appeal. disagree. Saenz, administrative We In prisoner right claimed he had been denied his to call a recognized witness. The court that the state has the prison disciplinary proceedings produce burden in "to prisoner's disciplinary hearing at the the witnesses 18 appeals disciplinary from administrative inmate proceedings purposes, including increasing have various uniformity decision-making, eliminating reducing or abuses providing opportunity of discretion and an for the institution's superintendent the work of Adm. review subordinates. WlS. 303.76(7), Appendix. CODE DOC Rehnquist, they paraphrase To Chief Justice who invoke City Leonard, Columbus v. must not waive. 443 U.S. 905 (1979) J., dissenting). (Rehnquist, by prisoner signed, requested or their written Although 64, 469 at 615. statements." Id. at N.W.2d to disclose whether the State had met that record failed "[A]ny duty, ruled: error committed the Saenz court by Saenz he walked out of the state was waived when disciplinary hearing objecting without to the Strangmen signed, of Dr. or his written absence Id. at 616. statement." at N.W.2d notwithstanding duty Consequently, Danner's hearing disciplinary error, record for review the procedural hot of his because did raise denial rights appeal, process in his administrative he right pursue against the a due claim waived Zangl Assuming Danner on those denials. and based classifying charged improperly the that Ware's process, due our offenses denied analysis waiver Zangl against and Danner also as to his claims against applies to his claim Ware. Sufficiency the

C. Evidence Santiago argues Zangl Danner and violated they right to substantive due because they and evidence when found lacked sufficient reliable § 303.63, he Wis. Adm. Code DOC institutional violated procedures, policies DOC and and Wis. Adm. Code disruptive the 303.28, conduct. The state asserts that report provided and own statement conduct findings. support those sufficient evidence to Test 1. "Some Evidence" support evidence" must exist order to

"Some prison disciplinary hearing. finding guilt in a (1985). Superintendent 445, 455 Hill, v. 472 U.S. Under question standard, the is whether the "some evidence" any support evidence exists the record that could the disciplinary against and action conclusion resultant prisoner. exists, Id. at 455-56. If "some evidence" satisfy process. If that is sufficient evidence to no finding guilt process. exists, evidence violates due disciplinary Hill, In the evidence before the board first-person testimony prison guard consisted of from a copies report. guard and of his written The testified he prison walkway upon in a heard a commotion investigating, lying he discovered an inmate on the ground, bleeding from the mouth and with a swollen eye. guard running three inmates saw from the they persons scene, the victim denied were the but who Nonetheless, had assaulted him. three inmates charged disciplined were for assault. Id. at 447-48. acknowledging any While both the absence of contrary direct and the evidence existence of testimony, Supreme Court held the record support "some that could contained evidence" good the board to revoke time credits for decision fleeing one of the three inmates. Id. at 456. The Hill weigh admittedly "meager" Court did not evidence. sought only It to ensure that the record was not "so findings disciplinary devoid of evidence that the support arbitrary." board were without or otherwise Id. at 457. provides § Adm. Code DOC 303.63 that Wisconsin

"[vjiolations any specific policies procedures of or authorized" the institution "are offenses." The Zangl record before and Danner contained no evidence

328 policies procedures. or The evidence of those supporting charge § was insufficient.20

the DOC 303.63 "Any § states, Code DOC 303.28 Wisconsin Adm. intentionally engages in, . . . causes or inmate who guilty" disruptive provokes disruptive of conduct is "Disruptive part in conduct" is defined as conduct. unusually may is loud . . . and "overt behavior which talking, may arguments or include ... loud which annoy another." (9th

Relying Rushen, on Cato v. 824 F.2d 705 1987), Santiago upon Cir. asserts he was convicted explained The court that the unreliable evidence. Cato upon by disciplinary information relied board must reliability," of and it held that a bear "some indicia report confidential informant's second-hand was only insufficiently in reliable. Id. evidence offered Santiago's guilt, argues, support he was report, which he information contained the conduct equates the confidential informant's statement with agreed trial court with Cato. The not. assessment of the record.21 We do Santiago hearing, also made a statement At the Zangl transcribed. Whether statement which guilty contains some evidence that was question disruptive conduct is a of law which we decide That deference to the trial court's decision. without provides part: in relevant statement Adm.Code WlS. guilty violating Santiago was found not very rehearing by Benzer for this upon DOC 303.63 that as a result of this conviction reason. The trial court found earlier, Santiago lost his CRC status. months no evidence The trial court concluded there was reliable Zangl and Danner based their Santiago's guilt because hearsay evidence and unreliable findings on the uncorroborated report. in the conduct R.N., get get my

I had to the Diana Brown to lock my my I no I open. have use hands. went out of open my put room to have her lock and to have her my away I anticipating going stuff because was to thereby the on the It festival 19th June. was opportunity coincidence that I had the to see explain grievances cook. ... I tried to to him of the Him, [about food] and we have to find a solution. me, understanding misinterpreted, or I thought was mental. He made it known to me that I was nothing stay but a motherfucker and that I should my go my wheelchair and room because he nothing [?] knows about some such counsel. That's I explained when stood the counter and to him in morning or when he comes in that he and supervisor president and the and I should sit gets down and iron this out it before out of hostility I proportion. noticed between both of us. aide, my That's put my my when aide lock on said, Jaime, grabbed my chair and hand forget and it, morning wait till the straighten we'll this my grabbed out. The lock was on chair. He the lock my hand and that's when the lock came into threatened_The play. The man yelling was never interpretation every was an individual. He didn't repeat understand me and I had to at least three times the issue itself. That's push when he did me down, over the counter and said sit mental defect... I police . did call the I felt point because blank that going try his friends and he something. were the Hill first-hand statement meets "some evidence" test. He acknowledged "yelling" and him "hostility between" and the cook. We therefore need not determine whether conduct report evidence was reliable. Santiago's Zangl and Danner violated

We conclude process rights find no evidence existed to due Santiago guilty because violating § Wis. Adm. Code DOC

of Policies and Procedures. 303.63, Institutional in However, sufficient evidence existed could statement from which the defendants written § 303.28, find he Wis. Adm. Code DOC violated Disruptive Conduct. Procedural or Substantive Due Process

2. 303.76(6) provides § Wisconsin Adm. Code DOC hearing disciplinary must found that an inmate a be argues guilty by preponderance The state a of evidence. Santiago guilty Zangl of if or Danner found charges preponderance evidence, a of their without 303.76(6), § and was therefore conduct violated DOC and unauthorized. random conduct defense and unauthorized random only procedural process

applies claims.22 The to due parties dispute Hill "some whether a violation of the procedural or a substantive due standard is a evidence" process violation. only one

"The Fourteenth Amendment contains Though helpful, as it is sometimes Due Process Clause. distinguish doctrine, between a matter procedural . . the two due . substantive mutually concepts exclusive, and their are not 22 Rights Nahmod, Liberties and Civil H. Civil Sheldon (3d 3.09, 1983 at 176 n.17 ed. Litigation, The Law of Section 1991) ("Parratt process cases only applies procedural challenges hearing; of a it does plaintiff the absence where challenges plaintiff apply should not where not and is, irrespective hearing. That Parratt defendant's conduct process."). apply to substantive due does 331 protections overlap." Albright Oliver, often v. 510 U.S. (1994) (Stevens, dissenting). legal 266, J., Indeed, commentators differ over whether the "some evidence" procedural standard is or substantive.23 See Richard Jr., Process, H. Fallon Some About Due Confusions Review, Remedies, Judicial and Constitutional (1993) (The COLUM. L. Rev. Hill Court "suggested reviewing that a deprive court should hold a prisoner good decision to time credits substantively arbitrary only if there were no evidence it."); support Neuman, Gerald L. The Constitutional Requirement Diego Evidence,' 'Some 25 SAN L. Rev. (1988) ("[T]he 631, 670 'some evidence' standard makes procedural process relating sense as a due doctrine to rationality."). issues narrower than total substantive good The Hill Court held "that revocation of time comport requirements does not with 'the minimum procedural process' findings due unless the prison disciplinary supported by board are some (citation in Hill, evidence the record." 472 U.S. at 454 omitted). grew directly The "some evidence" standard procedural requirement from the established Wolff (1974), prisoner McDonnell, v. 418 U.S. 539 that a must by receive a written statement the fact-finder of the any disciplinary evidence relied on and the reasons for acknowledging Hill, action. 472 U.S. at 454. While that prisoners rights, have circumscribed constitutional

23 protections process of substantive due have for the part most been to rights" generally accorded "fundamental marriage, found in the family, procreation right areas of (1994). bodily integrity. Albright Oliver, 266, to v. 510 U.S. 272 Substantive due government also bars conduct "shocks the rights "implicit conscience" or interferes with in the concept liberty." Salerno, of ordered United v. States 481 U.S. (1987) (citations omitted). 739, 746

332 procedural Court enumerated minimum Wolff safeguards necessary prison to ensure fairness disciplinary proceedings. 418 U.S. at 539. In Wolff, specify quantum not, however, the Court did Wolff, necessary support of evidence the fact-finder's ambiguity decision. Hill solved this with the "some evidence" standard.

Santiago contends the seventh circuit has construed Hill to mean that the "some evidence" requirement" protect standard is a "substantive procedural process rights established in He Wolff. (7th 1975), Lash, 55, cites Aikens v. 514 F.2d 60 Cir. (1976); grounds, rev'd on other 425 U.S. 947 Culbert v. (7th 1987), Young, 624, denied, 834 F.2d 630 Cir. cert. (1988); Rowe, 485 990 U.S. and Chavis v. 643 F.2d (7th 1981), denied, Cir. cert. 454 U.S. 907 (1981). Aikens, In the court stated an inmate had a process right guilty "substantive due not to be found except appropriate quantum evidence," an but Aikens, Aikens was decided a decade before Hill. precedes F.2d at 60. Chavis restates Aikens and also Chavis, Hill. 643 F.2d at 1287. The Culbert court referenced the "substantive standards set forth in questioned Hill," whether Hill had but lowered quantum required by of evidence the Aikens court to prison disciplinary Culbert, sustain a decision. F.2d at 630. published opinion in the seventh circuit has

No specifically held that the Hill "some evidence" standard procedural majority is or substantive. A of the circuits applied a have the "some evidence" standard as procedural process requirement.24 due (1st Dubois,

24 See, 794, 800 e.g., McGuinness v. 75 F.3d Cir. 1996) procedural process "that due is if the {Hill holds satisfied record."); by in supported decision ... is 'some evidence' 333 Santiago argues that because "some evidence" being arbitrarily helps protect found an inmate from process rights guilty, due are substantive implicated. disagree. process We Procedural due itself arbitrary protects against deprivations. When discussing procedural process prison due disciplinary proceedings, Court declared Wolff process protection "[t]he touchstone of due is against arbitrary government." action of individual (citing Dent Virginia, v. 129 418 U.S. at 558 West Wolff, (1899)). U.S. 114 suggests purpose

Neuman that the of the "some standard is to ensure the evidence" constitutional hearing, fairness of the rather than the constitutional (2d 1996) ("Hill Henderson, 75, Graham v. 89 F.3d 80 Cir. . . . only procedural process concerned due The issue in Hill was was, be, merely whether there and whether there needed to support prison disciplinary some evidence to decision." 1433, 1445 (emphasis original)); Maynard, Mitchell v. 80 F.3d (10th 1996) ("If Cir. there is some evidence . . . then the met."); requirements procedural process due have been (11th 1996) (If Fountain, 372, 375 Williams v. 77 F.3d Cir. there evidentiary procedural "a . was sufficient basis . . then due process allayed."). concerns would be See also Hudson v. (6th 1988) Edmonson, 682, (quoting 848 F.2d Cir. applying holding, Hill's . . . comport "revocation does not with requirements procedural process,1 'the minimum due unless findings record."); supported ... are some evidence in the (9th 1986), McCarthy, Toussaint v. 801 F.2d Cir. denied, (1987); Frey, cert. 481 U.S. 1069 Brown v. 807 F.2d 1407 (8th 1986) (affirming district Cir. court's conclusion that inmate procedural process prison had been afforded because evidence"). disciplinary supported by decision was "some No seventh, circuit, including interpreted raising has Hill as substantive due issue. of the fairness of that of evidence

sufficiency regardless hearing.25 procedural, protects is the requirement

[T]he right impartial individual's to an and conscientious merits, decision the on the evidence of on based supported record. ... A decision is not "some discrepancy findings evidence" when the between the so on which it rests and the evidence record is great clearly findings as to indicate that were not the impartially derived the record. . . . from fact against Requiring guards "some evidence" hearings truly meaningful that are not because the decisionmaker vitiates the individual's for input....

Neuman, in original). supra, at 678 (emphasis Tod, Tisi v. United States ex rel. 264 U.S.

Citing the Hill court 131, (1924), said, relevant "[T]he 133-34 in the record any is whether there is evidence question Hill, could the conclusion." 472 U.S. at that support 455-56. Hill's citation of Tisi Neuman's supports The Tisi Court's review evidence analysis. the fairness of the administrative ensure sought hearing. required If evidence" standard "some implicating liberty have "an

administrative decisions interests (or more) every adjudicative acceptably reasoned basis decision," judicial on resources would be strain Neuman, "extraordinarily L. ambitious." Gerald Rev. independent Constitutional scrutiny Requirement (1988). Every challenged of the record to 'Some Evidence,' make case sure 25 SAN DIEGO would that a 'rational' "require L. challenged decision on decisionmaker could have reached light apparently applicable presented, the evidence legal proof." burden of Id. substantive law and fair hearing The denial of a is established merely wrong. that the decision was This proving true the error equally is whether consists deciding wrongly that evidence introduced legal drawing constituted of the fact or in evidence The error of an wrong inference from evidence. course, may, administrative tribunal of so be flagrant hearing as a court that had to convince not a fair one. was

Tisi, 264 U.S. at 133.

We conclude that the "some evidence" standard is procedural process question due standard. is Zangl's findings and whether Danner's 303.76(6), violated Wis. Adm. DOC Institution Code§ Policies, were "random and unauthorized." 3. Random and Unauthorized Acts Generally, process requires notice and an opportunity deprivation life, to be heard before a liberty property. Irby Macht, 831, 843, or v. 184 2dWis. (1994). 9, 13, denied, 522 N.W.2d cert. 115 S. Ct. 590 deprivation liberty When a of a interest results from "random and unauthorized" acts of state "providing meaningful employees, predeprivation process impracticable." 843, is Id. at 522 at 14 N.W.2d (1981)); (citing Taylor, 527, Parratt v. 451 U.S. 543-44 (1990). Burch, 113, Zinermon v. 494 U.S. 128-29 predict cannot the state Because when such acts will provides occur, due if will be satisfied the state adequate postdeprivation Irby, remedies. 184 2dWis. (citing 843, at 544). 14 Parratt, 522 N.W.2d at 451 U.S. at Irby alleged prison employees that state violated Department disciplinary ch. 303 of Corrections' by failing give prior code him notice of the hearing, disciplinary providing him the reasons for its allowing assigning decision, him witnesses, to call Irby, a staff advocate free of conflict interest. Irby Wis. 2d at 522 N.W.2d at 15. The court "authority concluded that deprive Irby the defendants lacked any procedural rights," of these their conduct was therefore "random and 846-47, at unauthorized." Id. at N.W.2d 15. agree Zangl We with the that state and Danner duty preponderance each had a to meet the finding Santiago guilty. evidence standard before WlS. 303.76(6).26 violating Adm. Code DOC Their conduct duty that was random and unauthorized. question adequate

Hence, the is whether postdeprivation Santiago. remedies to were available Zangl's As a result of and Danner's unauthorized Santiago ten-day conduct, a of received extension mandatory program release date a to and referral the review committee which of resulted termination CR judicial way by C status. failed to seek relief proceeded directly Instead, of certiorari. he the negligence § 1983 and before action us. Irby provided court held that certiorari review remedy adequate Irby's good

an for loss of time earned any because the circuit court can order restoration of good expunge prisoner's lost and time can the disciplinary 847, record. Id. at 522 N.W.2d at 15. We

26Santiago dispute meeting does "preponderance comply of the evidence" standard with would requirement. the "some evidence"

337 why equally not be certiorari would see no reason ten-day remedy wrongful extension available to Irby, mandatory As in release date. expungement a certiorari court.27 could be ordered IV. STATE CLAIMS employees personal from are immune Public injuries resulting negligent liability from discretionary scope performance act within they public Olson, C.L. 143 Wis. individual's office. v. (1988). 710, A 701, 614, 617 2d discretionary 422 N.W.2d or act is one that involves choice Kimps judgment. Hill, 1, 23-24, 200 Wis. 2d 546 v. (1996) (quoting 151, v. N.W.2d 161 United States (1991)). 315, Gaubert, 499 325 U.S. immunity exception for ministerial

An exists Kimps 513, 523 Hill, 508, acts. v. 187 Wis. 2d N.W.2d (Ct. 1994), App. 1, 200 Wis. 2d aff'd, (1996). duty public employee's A is N.W.2d "only absolute, ministerial when it is certain imperative, involving merely performance imposes, specific prescribes task when the law performance its time, defines the mode and occasion for nothing certainty judgment for with such that remains Regents, v. 72 2d or discretion." Lister Board Wis. of (1976). duty 282, 301, 610, 240 Whether a N.W.2d 622 question law is is a of which we review ministerial 27 Having disposed grounds, the do not of issues on other we February rehearing decide held 1993 before whether any complete deprivation Danner cure for constitutional was hearing. first during that occurred

338 without deference to the trial court. Larsen v. Light Power Co., 508, 516, 355 Wisconsin & 120 Wis. 2d (Ct. 1984). App. N.W.2d 562 does state challenge findings the court's that the defendants negligently performed their duties. immunity.28

We turn first to Ware's claimed Santiago acknowledges classify that a decision to an major offense as or minor involves choice "in some discretionary. argues, cases," and is therefore He duty however, that Ware had a ministerial to look first automatically major at the list offenses classified as 303.68(3) under WlS. Adm. Code DOC if to see it charged against Santiago. Citing included the offenses Regents, Santiago Lister v. Board contends the major provision imposes automatic duty limits choice and certainty nothing such with that remains for judgment or discretion. University Lister,

In of Wisconsin law students university alleging negligently official, sued a performed he had determining duty

a ministerial their residency Lister, 288-89, status. 72 2d at Wis. N.W.2d at 616. The court reviewed official's duties under the relevant statutes. 36.16(l)(a) provided

Section "a fide that bona year resident of the state for one next preceding beginning any semester such which student at registers university . . . shall he while continues a resident be state entitled exemption from nonresident tuition." Under trial, granted summary judgment Prior to the court Ware Santiago's negligence ground on claim she had on the discretionary immunity. case, the In its statement of the State says this decision was reconsidered. have unable to We been locate such a reconsideration. residence, 36.16(3), determining bona fide in

§ "shall of the student be activities several However, a student from another state considered." in to obtain an "principally state who was this to not considered have education" was to be by a residence in Wisconsin virtue established at institutions. attendance educational held, "The at at 622. The court Id. N.W.2d prescribe process not the classification with statute did certainty nothing the remained for such judgment administrative Id. and discretion." officer's added). (emphasis engaged Lister, in a

Like the official Ware process. judgment Ware exercised classification provisions selecting applying the relevant the reject presented. to facts administrative code Santiago's We portrayal as a of the automatic classification required later for the threshold ministerial decision judgment to if a non- exercise of choice or determine major offense is or minor. classification automatic determination is itself the result of choice judgment, prerequisite. not a

The administrative code establishes major classifying prison as or minor. Ware offenses charges. appropriateness first had to review 303.67(3). offense, DOC a minor WiS. Adm. Code For report if the could have dismissed the conduct she unfamiliar rule, with the had not inmate was either recently closely rule, related was violated the same or a repeat unlikely counseled, or the offense if warned or prison disciplinary purposes not code would by writing report. a conduct WlS. be furthered Adm. 303.67(3)(a) §§ DOC and 303.65. Ware had Code alleged, supported or the facts strike offenses supported by could add offenses the facts. WlS. ADM. 303.67(3)(b)-(c). §DOC She could refer the Code report investigation. conduct for further WlS. ADM. 303.67(3)(e). § completing review, DOC After this Code involving judgment and choice, Ware then was required remaining reports to "divide all conduct into major §DOC and minor offenses." WlS. Adm. Code 303.67(4). may required

That Ware have been to exercise her judgment, may wrongly, or that she have done so does judgment transform her exercise of a into ministerial Lister, act. See 2d Wis. at judgment at N.W.2d 622. Ware's exercise of act was an of discretion.

Santiago argues Zangl that and a both Danner had non-discretionary duty to look at waiver form to see proper if there had a been waiver.29 An evaluation required analysis waiver form and judgment. indicating Santiago The box his waived right process hearing to a formal checked, due had been Interpreting resulting composite then crossed out. required judgment. Santiago mark as Moreover, states "[Zangl] facts, in his recitation of did not ask incomplete form, about or he waiver whether right process intended to waive his to a formal due hearing. regulation requiring There is no or rule hearing verify officers to that an inmate has waived rights process holding hearing." before waiver hardly duty imposed it can Thus, said that the law be 29Santiago argue Zangl does not that had a non- if, discretionary duty stop hearing to the waiver even as the trial found, Santiago objections Zangl court voiced his to hearing. requested challenges a due The State finding clearly as erroneous. We need not reach that issue.

upon Zangl "absolute, certain that was imperative." attempt again reject Santiago's Danner,

As to we form from of his waiver to isolate the evaluation appeal responsibilities officer. WISCONSIN as Danner's 303.76(7)(b) requires appeal officers CODE DOC Adm. pertaining all records and forms "review days appeal or her within 10 and make his decision following receipt request." A entire review judgment. appeal Ware, on involves As with record required may have to exercise that Danner been wrongly judgment he did so does not transform or that discretionary to ministerial. his from duties Zangl enjoy and Danner Ware, We conclude Santiago's immunity negligence discretionary from against them. claims

V.

CONCLUSION Santiago's complaint in its should be dismissed liberty having entirety. Santiago not had a interest in mandatory extended, he had no his liberty release date but community remaining

interest program. all confinement He waived residential procedural process objections of due to the extension insufficiency except date for the release Zangl and Danner found evidence. When defendants Santiago violating policies guilty institutional procedures, supporting evidence, their acts without However, unauthorized. were random and judicial remedy pursue adequate certiorari, to an failed damage he Defendants suffered from those acts. Zangl enjoy discretionary immunity Ware, and Danner negligence from state law claim. judgment

We therefore reverse the before us and complaint direct that the be dismissed.

By Judgment reversed and cause Court. — with remanded directions. (concurring).

SUNDBY, J. I concur in our mandate majority opinion. but not in the process requires adequate Procedural due notice opportunity and an to be heard when the State proposes away person's property liberty. to take or proposed discipline Santiago The State for conduct violating regulations. prison hearing officer, Todd Zangl, give Santiago process hearing, did not a full due Santiago requested. which However, the Sector Superintendent, recognized Zangl's A. Danner, Dennis error Benzer, and ordered Daniel a social services supervisor for the Division of Sanctions, Intensive give Santiago rehearing. gave Santiago Benzer a full process hearing guilty and found him violating policies practices, guilty WCI's but disruptive assigned Santiago conduct. Danner an advocate who was allowed to call witnesses on present behalf and to a defense. pause

Let's a moment to consider whose action Santiago circuit court would have had reviewed pursued remedy; Zangl's, his certiorari not because whatever action he took was mooted when the conduct report was reheard. The court would have reviewed finding Santiago guilty disruptive Benzer's that of was Zangl's conduct. How then is Santiago's right and Danner's denial of procedural process implicated? to due There is no cause of action an aborted denial of long process

procedural as the mistake is as due liberty. not a We are there is loss corrected before liberty presented deprivation of a interest here with a judicial subject by action; to correction final, was which Santiago deprivation not after herb, did occur until recognize given process due him. I had been all damages for emotional federal circuits award some procedural process, due see caused denial distress (5th Hosp., Laje 724, 728 Gen. 665 F.2d v. Thomason 1982). liberty interest However, in those cases the Cir. only provide procedural due lost after failure to was process. may Santiago adequate Zangl have denied notice may opportunity heard; an Danner have and to be nothing Zangl's compounded it. error came of but Santiago liberty did interest because their not lose good someone in the Division had acts because liability potential order the sense to realize properly. proceed on this The real issue institution appeal and an the initial denial notice is whether may opportunity without heard be corrected be "yes." liability. got If on that score has to be answer every procedural mistake a constitutional not, becomes complete mistake is made. It is violation when the procedural due fundamental, however, that denial of person complete process and until the is unless liberty protected property or interest. affected loses a liberty lose interest until after the did not adequate hearing he had before Benzer where conduct charges against opportunity fair him and a notice ofthe charges. against those to defend Santiago argues he denied substantive as that was process. procedural Substantive due as well arbitrary protected against right is the to be regardless wrongful government action procedures government fairness of the uses to take the arbitrary Burch, 113, 125 action. Zinermon v. 494 U.S. (1990). Santiago deprived asserts that defendants him liberty ofhis without even a "modicum" of evidence. See (1985); Superintendent Hill, v. 472 U.S. Santiago's premature; claim until he has lost is his liberty arbitrary capricious because and governmental action he has not suffered substantive process deprivation. right appeal He has the his potential liberty by disciplinary certiorari; loss of may subject may action to which he be be set aside precisely If because the evidence is insufficient. reviewing Santiago's liberty, courts affirm loss of he may pursue remedy § then under 42 U.S.C. 1983. Rights The Civil Act of 1871 created a federal tort sympathizers because the freed slaves and Union could Santiago's If not obtain relief in state courts. loss liberty courts, is affirmed the Wisconsin the federal are to him to correct the constitutional courts available wrong. However, the Wisconsin courts have not had an opportunity conviction for to review violating prison regulations. opportunity Until that liberty proves Santiago fruitless, has not lost his governmental arbitrary capricious because of action. Santiago

I conclude that has not stated a therefore Santiago reasons, claim under For the same 1983. simply not have a claim under state law. He has does injured punishment until his conviction been Conceivably, could state been affirmed. have alleged conspiracy a claim if he between that the defendants to "frame" him and he could show charges against pretextual, masking an him were maliciously. prosecute him I do not believe intent proof support Santiago's complaint alleged facts a claim. such majority join in the reasons, I do not

For these majority assigned opinion. reasons unnecessary reaching I reach are the same result our decision.

Case Details

Case Name: Santiago v. Ware

Court Name: Court of Appeals of Wisconsin

Date Published: Sep 30, 1996

Citation: 556 N.W.2d 356

Docket Number: 95-0079

Court Abbreviation: Wis. Ct. App.