Frohwerk v. Johnson et al
Filing
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OPINION AND ORDER DISMISSING Amended Complaint 8 pursuant to 28 USC 1915A. Signed by Judge Robert L Miller, Jr on 9/21/11. (kjp) cc:pltf
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
Plaintiff,
vs.
BOBBY JOHNSON, et al.,
Defendants.
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CAUSE NO. 2:11-CV-133 RM
OPINION AND ORDER
David Frohwerk, a pro se prisoner, filed an amended complaint under 42 U.S.C.
§ 1983. (DE 8.) Pursuant to 28 U.S.C. § 1915A, the court must review the complaint and
dismiss it if the action is frivolous or malicious, fails to state a claim, or seeks monetary
relief against a defendant who is immune from such relief. Courts apply the same standard
under Section 1915A as when deciding a motion under FEDERAL RULE OF CIVIL PROCEDURE
12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, a
complaint must state a claim for relief that is plausible on its face. Bissessur v. Indiana
Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 603. The court must bear in
mind, however, “that [a] document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Mr. Frohwerk alleges that he was denied due process in connection with a prison
disciplinary proceeding which resulted in him being placed in short-term segregation.1 (DE
8 at 3-4.) The Fourteenth Amendment Due Process Clause doesn’t protect against every
change in the conditions of confinement having an adverse impact on a prisoner. Sandin
v. Conner, 515 U.S. 472, 484 (1995). Instead, a prisoner is entitled to due process protections
only when the conditions imposed work an atypical and significant hardship on him in
relation to the ordinary incidents of prison life. Id. Temporary placement in the segregation
unit doesn’t present an atypical, significant deprivation and is “within the expected
parameters of the sentence imposed by a court of law.” Id. at 485.
Accordingly, under Sandin, Mr. Frohwerk wasn’t entitled to due process protections
before being placed in short-term segregation. Furthermore, Mr. Frohwerk’s chief
complaint appears to be that the evidence was insufficient to find him guilty of an A-level
offense; however, the documents he submits shows that the charge against him was
reduced to a C-level offense as a result of his administrative appeal. (DE 8-1 at 26.) For
these reasons, Mr. Frohwerk has not stated a plausible due process claim. To the extent he
is also claiming that the disciplinary sanction caused him reputational injury within the
prison (DE 8 at 8), this states no plausible constitutional claim. Paul v. Davis, 424 U.S. 693,
712 (1976) (claims for slander or defamation are not actionable as a constitutional tort).
Mr. Frohwerk filed a habeas petition under 28 U.S.C. § 2254 challenging the disciplinary
sanction. Because he did not lose any earned time credits, the court concluded that a habeas petition
wasn’t the appropriate vehicle for him to raise his claims. See Frohwerk v. Superintendent, No. 2:11CV-157 (N.D. Ind. order dated May 12, 2011).
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Mr. Frohwerk also complains about the conditions of confinement under which he
was housed in the segregation unit: he was subjected to extreme cold and not given
adequate blankets. (DE 8 at 3.) He already has another case pending in which he raises
those same allegations. See Frohwerk v. Buss, 2:11-CV-070 (N.D. Ind. filed Feb. 23, 2011).
It is malicious for Mr. Frohwerk to file multiple suits based on the same set of facts.2 See 28
U.S.C. § 1915A; see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (suit is
“malicious” for purposes of 28 U.S.C. § 1915A if it is intended to harass or is otherwise
abusive of the judicial process); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (it
is malicious for a plaintiff with in forma pauperis status to file a lawsuit that duplicates
allegations of another pending lawsuit brought by the same plaintiff). Mr. Frohwerk can’t
proceed with those claims in this lawsuit.
For the foregoing reasons, the court DISMISSES the amended complaint (DE 8)
pursuant to 28 U.S.C. § 1915A.
SO ORDERED
In fact, Mr. Frohwerk raised these same allegations in another lawsuit which was
dismissed as malicious in June 2011. See Frohwerk v. Levenhagen, No. 2:11-CV-201 (N.D. Ind. order
dated June 20, 2011). In the past several months Mr. Frohwerk has initiated multiple lawsuits in
addition to the cases noted above; many of these cases have defendants in common and contain
overlapping allegations about his detention in the segregation unit. See Frohwerk v.
Superintendent, No. 2:11-CV-257 (N.D. Ind. filed July 18, 2011); Frohwerk v. Carpenter, No. 2:11CV-222 (N.D. Ind. filed June 24, 2011); Frohwerk v. Lemmon, No. 2:11-CV-221 (N.D. Ind. filed June
24, 2011); Frohwerk v. Bean, No. 2:11-CV-209 (N.D. Ind. filed June 17, 2011); Frohwerk v. Unknown
Officials, No. 2:11-CV-210 (N.D. Ind. filed June 17, 2011); Frohwerk v. Armstrong, No. 2:11-CV-202
(N.D. Ind. filed June 13, 2011); Frohwerk v. Unknown Employees, No. 2:11-CV-201 (N.D. Ind. filed
June 13, 2011); Frohwerk v. Corr. Med. Servs., No. 2:11-CV-200 (N.D. Ind. filed June 13, 2011);
Frohwerk v. Carter, No. 2:11-CV-199 (N.D. Ind. filed June 13, 2011); Frohwerk v. Levenhagen, No.
2:11-CV-157 (N.D. Ind. filed May 2, 2011); Frohwerk v. Buss, No. 2:11-CV-69 (N.D. Ind. filed Feb.
22, 2011).
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ENTERED: September 21 , 2011.
/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc: D. Frohwerk
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