DOC recommends denial of this claim. DOC denies that the department retroactively applied 2015 Act 355. DOC contends that the deductions were based on Wis. Stat. § 973.20(11)(c), which gave the department authority to set deduction rates for restitution. DOC notes that in recent restitution related decisions, the courts have confirmed DOC’s previous authority to set deduction rates for inmate restitution. To the extent that Harrell is correct that DOC should not have withheld 50% from his gifted funds, the department contends that it should not be required to reimburse him for several reasons. First, the money has already been disbursed to Harrell’s victims who are entitled to restitution under Wisconsin law. Additionally, because DOC no longer has the money, awarding this claim would essentially result in taxpayers paying Harrell’s restitution. DOC stopped making any deductions from Harrell’s gifted funds prior to the Court of Appeals decision, which clarified that DOC could de0duct 25% from both his wages and gifted funds. DOC notes that the amount DOC could have, but did not deduct from Harrell’s gifted funds exceeds the amount allegedly “over-deducted” by DOC. Finally, DOC believes that Harrell is not entitled to reimbursement for filing fees and costs pursuant to Wis. Stat. § 814.25(2)(b), which provides that prisoners are not entitled to costs when they prevail in certiorari actions involving prison or jail conditions. 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.
6. Eugene Cherry of Oshkosh, WI claims $162.39 for property allegedly mishandled by DOC staff. Cherry was moved from Green Bay Correctional Institution to Oshkosh Correctional Institution on August 10, 2022. Cherry placed his personal property in a basket which GBCI staff picked up the day before his transfer. Cherry alleges that other inmates had no access to his property because he resided in a single cell and inmates had been on Covid-related lockdown with limited movement for the prior two years. When Cherry received his property at OSCI his watch was broken, and many property items were allegedly missing. Cherry believes that GBCI staff improperly discarded his property before his transfer, therefore, the OSCI disallowed property mentioned by DOC is not relevant. Cherry has receipts for the missing property items. Cherry contends that the fact that DOC admits they broke his watch and have paid thousands of dollars for other property claims is proof that DOC mishandled his property.
DOC recommends denial of this claim. The Institution Complaint Examiner determined that there was no evidence of staff negligence, and it was not even proven that the property was in Cherry’s possession immediately prior to his transfer. Although the exact counting of property items sometimes varies between institutions (i.e.: magazines counted as books or magazines, shampoo counted as shampoo or hair product) a review of Cherry’s property inventories from before and after the transfer show that he arrived at OSCI with approximately the correct number of items. DOC believes Cherry is attempting to be reimbursed for property that he no longer possessed at the time of his transfer. DOC notes that many of the allegedly missing property items were consumable hygiene products purchased months earlier. Even if Cherry still had those items, many of them would have been destroyed under OSCI property rules regarding open containers and time limits for keeping items after purchase. DOC takes inmate property claims seriously, as evidenced by the fact that it replaced Cherry’s watch, which was broken while under staff control. However, the fact that DOC pays some inmate property claims does not mean it should pay claims where there is no proof of DOC responsibility. If the Board finds that some monetary relief is appropriate, DOC notes that used toiletry items and magazines have negligible value and a used book would be worth half of its original value.
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.
7. Patrick Fowler of Boscobel, WI claims $242.02 for property items allegedly lost by DOC staff at Green Bay Correctional Institution. Fowler was moved to the Restrictive Housing Unit (RHU) on November 3, 2022. He received his property inventory on November 8, 2022, and realized that several property items were missing. He filed an inmate complaint regarding the missing property. After he returned from RHU, Fowler received his property and noticed that some of the property belonged to another inmate, so he filed another inmate complaint. DOC denied both of his complaints. Fowler alleges that DOC mishandled his property and failed to properly investigate his complaints. He notes that an unknown officer took the property from his cell on November 3, but the property was not inventoried until four days later by Officer Cortes. Fowler believes DOC should have reviewed the November 3 video footage from outside of his cell and interviewed the officer who removed his property. Fowler requests reimbursement for the full value of his property.
DOC recommends denial of this claim. The Institution Complaint Examiner determined that Fowler’s property was properly handled and that there was no evidence of negligence by DOC staff. DOC staff removed all the property from Fowler’s single cell and took it to the property area where it was securely stored until it was inventoried. Fowler’s property was placed in a basket before removal from his cell, so individual property items would not have been visible on the video footage from outside the cell. DOC staff inventory inmate property one basked at a time to prevents comingling the property of different inmates. Any property Fowler alleges was not his would have been present in his cell when he was moved to RHU, and any property not inventoried by DOC would not have been present.
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. De’Angelo Carter of Waupun, WI claims $467.60 for several property items allegedly lost by DOC staff at Waupun Correctional Institution between February 25 and March 25, 2022. Carter was moved to the Restrictive Housing Unit (RHU) on February 24, 2022, resulting in limited possession of his personal property items. Disallowed personal property items are packed, inventoried, and stored until the inmate returns to general population. While in RHU, Carter was provided an inventory log detailing his remaining, stored property items. Carter discovered that “a lot” of his items were not accounted for on the log. He filed a complaint via the Inmate Complaint Review System (ICRS) on March 8, 2022, which was investigated and ultimately denied. Upon return to general population, Carter realized that the items were in fact missing from his property. He alleges that he either came to WCI with the items or purchased them while at WCI.
DOC recommends denial of this claim. The Institution Complaint Examiner stated that there was “no evidence that the items he claims are missing were in the cell at the time of the pack up or that these items were ever under staff control. He could have sold, traded, or disposed of the items when they were in his possession.” Further, “the process of packing the property and sending it to the Property Department was documented and proper. Recommendation is made for dismissal of the complaint, as there is no indication any staff or staff action caused any perceived loss.” If the Board finds that some monetary relief is appropriate, DOC notes that Carter only exhausted his administrative remedies regarding some of the property items and should not be reimbursed where he did not exhaust – i.e., eyeglasses, mesh laundry bag, gym shorts, basketball shoes, African Gold, Coast bar soap, Crest toothpaste, Zest bar soap, thermal bottoms, paper, Ultra Brite. Further, any reimbursement should match the value of items at the time of loss, not the original purchase price or replacement cost.
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.
9. Jennifer Arndt of Lake Geneva, WI claims $567.59 for damage to vehicle tires allegedly caused by a crosswalk sign in the roadway on South Lake Shore Drive in Lake Geneva, within the boundary of Big Foot Beach State Park (“the Park”), on August 5/6, 2022. Claimant’s son, Andrew Arndt, was travelling northbound on South Lake Shore Drive in a vehicle owned by Claimant’s fiancé, James Militello. After hitting a “little bump,” tire pressure decreased, and Arndt pulled over. He discovered he hit a rubber mat (with no sign attached) that lay in the middle of the northbound lane with four screws sticking out. The two driver-side tires were damaged. Claimant notes that she and Militello were out of town at the time of the incident, but that she provided Arndt with the cash to repair the damage, which he did at Walmart on August 6. Claimant asserts that while only two tires were damaged, all four were replaced per Walmart’s policy. Claimant holds that DNR was negligent in that it failed to maintain a hazard-free roadway.
DNR recommends the claim be denied. DNR maintains crosswalk signs at the two crosswalks across South Lake Shore Drive. Each of the two crosswalks has one sign positioned on the centerline of the roadway. Each day, staff visually confirm the location and correct positioning of the signs. The Park has experienced issues with theft and vandalism of crosswalk signs; as a theft deterrent, DNR uses lag screws to secure the crosswalk signs and mats into the asphalt. DNR is confident the subject crosswalk sign was correctly positioned on the centerline at the end of the day on August 5. On the morning of August 6 or 7, staff observed the sign was missing. The mat was located on the shoulder of the road, with no sign attached. The sign was never located. It is DNR’s belief that sometime during the night of August 5, the sign was tampered with and stolen, leaving just the mat, possibly with screws sticking out. This condition was not the result of DNR action or inaction. DNR notes that due to the proximity in time to Labor Day (i.e., when the signs are usually removed), the subject sign was never replaced/reinstalled after this incident. DNR further believes the photographs provided by Claimant (with the sign improperly installed with screws sticking up) are from the other crosswalk in the Park. DNR holds that it exercised appropriate vigilance in its maintenance of the crosswalk sign. If the Board finds that monetary relief is appropriate, DNR recommends no more than $262.70 – the cost of two tires, less the cost of the elective road hazard replacement coverage.
The Board concludes the claim should be paid in the amount of $262.70 based on equitable principles. The Board further concludes, under authority of Wis. Stat. § 16.007(6m), payment should be made from the Department of Natural Resources appropriation Wis. Stat. § 20.370(1)(ma). 10. Corey Benson of Waupun, WI claims $18.65 for earbuds allegedly lost by DOC staff. Benson was moved to the Restrictive Housing Unit (RHU) at Waupun Correctional Institution on September 23, 2022, resulting in limited possession of his personal property items. Disallowed personal property items are packed, inventoried, and stored until the inmate returns to general population. On October 12, 2022, Benson was provided his allowable personal property items in RHU, and given an inventory log detailing the remaining, stored property items. Benson discovered his recently purchased earbuds were missing from the inventory log, in addition to other items not subject to this claim. Benson raised the issue with CO Avila, who suggested Benson complete an Interview/Request Form to have the discrepancy reviewed. Benson indicates that CO Avila confirmed on October 14, 2022, that the earbuds were not located with Benson’s stored property items. Benson returned to general population on December 12, 2022, and received the remainder of his property items, absent the earbuds. Benson alleges he contacted the property department and filed an inmate complaint, exhausting his administrative remedies.
DOC recommends denial of this claim. Benson filed a complaint through the Inmate Complaint Review System (ICRS) on December 21, 2022, which was rejected as untimely. (A complaint must be filed within 14 days after the occurrence giving rise to the complaint.) Benson appealed the rejection to the Warden, who affirmed the rejection. Because the complaint was rejected, the merits were never considered or investigated. Benson claims to have known of his missing earbuds on October 12, but did not file the ICRS complaint until 70 days later; he was 56 days late. DOC notes that Benson’s status in RHU would not prevent him from filing an ICRS complaint. DOC contends that Benson did not properly exhaust his administrative remedies, and that review of the rejected ICRS Complaint is not within the jurisdiction of the Claims Board.
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. Member Barnes dissenting.
11. Anthony C. Holschbach of Waupun, WI claims $1,694.70 for vehicle damage caused by a resident of a Department of Health Services (DHS) facility – Central Wisconsin Center (CWC). Claimant (the presumed owner of the subject vehicle driven by CWC employee Ana Sucely Holschbach) provides a DHS Security Incident Report which indicates that on October 3, 2021, a CWC resident became agitated while on an on-grounds walk and started striking vehicles with his fist. Claimant’s vehicle sustained a dent in the back left quarter panel. Claimant incurred costs from an autobody shop to repair the damage. (Note that the autobody shop estimate lists Claimant as the vehicle owner.)
DHS recommends full payment of this claim. Ms. Holschbach submitted an expense report to be reimbursed for the damage, which was denied due to DHS’s limited ability to reimburse employees for damaged personal articles. DHS points to the State of Wisconsin Compensation Plan, Section G 2.02, authorized by Wis. Stat. §§ 20.918 and 230.12(1)(dm), which states a reimbursement may not exceed $100 for any one incident. DHS has no other mechanism to reimburse Claimant or Ms. Holschbach. The Board concludes the claim should be paid in the amount of $1,694.70 based on equitable principles. The Board further concludes, under authority of Wis. Stat. § 16.007(6m), payment should be made from the Department of Health Services appropriation Wis. Stat. § 20.435(2)(gk). The Board concludes:
That payment of the amounts below to the identified claimant from the following statutory appropriations is justified under § 16.007(6)(b). Anthony C.
That the following identified claimants are denied:
Martha Vazquez
Jacquese Harrell, Sr.
Eugene Cherry
Patrick Fowler
De’Angelo Carter
Corey Benson
That the decision of the following claim is deferred to a later date:
Budget Dumpster, LLC
Dated at Madison, Wisconsin this 27th day of September, 2023.
R. DUANE HARLOW
Chair, Representative of the Attorney General
ANNE L. HANSON
Secretary, Representative of the Secretary of Administration
ERIC WIMBERGER
Senate Finance Committee
ALEX DALLMAN
Assembly Finance Committee
MEL BARNES
Representative of the Governor
