Mustache v. Johnson et al

Filing 4

ORDER signed by Judge J P Stadtmueller on 6/16/09 as follows: granting 2 plaintiff's motion for leave to proceed in forma pauperis; dismissing this action for failure to state a claim; directing the Clerk of Court to document that the plaintif f's action was dismissed for failure to state a claim and that the plaintiff has incurred a "strike"; directing the Wis Dept of Corrections to collect the balance of the filing fee from the plaintiff's prison trust account and forwarding payment to the Clerk as specified. See Order. (cc: plaintiff, Warden of Green Bay Correctional Institution; AAG Corey Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
M IC H A E L C. MUSTACHE, P l a i n t if f, v. J . JOHNSON, PETER ERICKSEN, and LT. VAN GHEEM, D e fe n d a n ts . C a s e No. 09-C-18

DECISION AND ORDER
T h e plaintiff, who is incarcerated at Green Bay Correctional Institution (GBCI), file d a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that his civil rig h ts were violated. This matter comes before the court on the plaintiff's motion for le a ve to proceed in forma pauperis and for screening of the plaintiff's complaint. The plaintiff is required to pay the statutory filing fee of $350.00 for this action. S e e 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fe e , he can request leave to proceed in forma pauperis. The plaintiff has filed a c e rtifie d copy of his prison trust account statement for the six-month period im m e d ia te ly preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $3.37. T h e court will grant the plaintiff's motion for leave to proceed in forma pauperis. The court is required to screen complaints brought by prisoners seeking relief a g a in s t a governmental entity or officer or employee of a governmental entity. 28 U .S .C . § 1915A(a). The court must dismiss a complaint or portion thereof if the

p ris o n e r has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a d e fen d a n t who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o avoid dismissal for failure to state a claim, the complaint must contain a "s h o rt and plain statement of the claim showing that the pleader is entitled to relief." F e d . R. Civ. P. 8(a). It is not necessary for the plaintiff to plead specific facts; his s ta te m e n t need only "give the defendant fair notice of what the . . . claim is and the g ro u n d s upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2 2 0 0 (2007) (citations omitted). In deciding whether the complaint states a claim, th e court must accept as true all of the factual allegations contained in the complaint. B e ll Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). There is no heightened pleading requirement for pro se prisoner civil rights complaints. T h o m s o n v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). Of course, if a

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c o m p la in t pleads facts that show that a plaintiff does not have a claim, the complaint s h o u ld be dismissed "without further ado." Id. at 970. T o state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege: (1) th a t he or she was deprived of a right secured by the Constitution or laws of the U n ite d States; and (2) that the deprivation was visited upon the plaintiff by a person a c tin g under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The c o u rt is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal construction. See Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 4 2 9 U.S. 97, 106 (1976)). A tta c h e d to the plaintiff's complaint are all of the administrative documents re g a rd in g the charges against him. These include the Adult Conduct Report,

in c lu d in g the Security Director's Review, the Disciplinary Hearing Reasons for D e c is io n and Evidence Relied On form, and the Appeal of Adjustment Committee o r Hearing Officer's Decision form. Attachments to the complaint become a part of th e complaint, and the court may consider those documents in ruling on a motion to d is m is s .1 Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004) (citing Tierney v. V a h le , 304 F.3d 734, 738 (7th Cir.2002)). Screening a prisoner's complaint imposes th e same standard as a motion to dismiss. Therefore, the attachments are properly c o n s id e re d at screening.

Pursuant to Fed. R. Civ. P. 10(c), "[a] copy of a written instrum e n t that is an exhibit to a pleading is a part of the pleading for all purposes."

1

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A c c o rd in g to the plaintiff's sworn complaint, J. Johnson "maliciously" issued h im a conduct report on October 11, 2008, for fighting with an inmate named V a s q u e z , even though there was no evidence that Mustache participated in a fight. O n October 21, 2008, Peter Ericksen, upon his review of the conduct report, could h a ve suppressed the fighting charge, but instead chose to upgrade and approve the c h a rg e d violation to a major offense penalty on false pretenses that Mustache's a lle g e d conduct created a risk of serious disruption at the institution and created a ris k of serious injury to another person. Mustache avers that Ericksen upgraded the c h a rg e s to a major offense "with malice and specific intent to injure Mustache in o rd e r to support his subordinate's [defendant J. Johnson] unlawful disciplinary a c tio n ." (Complaint, ¶5). Mustache further affirms that Ericksen "was aware from the report that there was no evidence that Mustache participated in a fight." Id. O n October 24, 2008, Mustache was taken before a disciplinary hearing o ffic e r, defendant Lt. Van Gheem, who found Mustache guilty of fighting and im p o s e d 180 days of disciplinary separation in segregation. Mustache avers that V a n Gheem took this action "with malice and specific intent to harm Mustache and d id so, although no evidence was presented at the hearing that Mustache p a rticip a te d in a fight with Inmate Vasquez." (Complaint, ¶6). Mustache submits th a t this violated the standard for guilt required by DOC 303.76[6-b]. M u s ta c h e timely filed an appeal with W illia m Pollard, the GBCI warden, on O c to b e r 29, 2008, challenging the hearing officer's reason for decision because

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th e re was no evidence that he participated in a fight with inmate Vasquez. On N o ve m b e r 14, 2008, Pollard reversed the hearing officer's decision in whole and s tate d : "No evidence to support this inmate participated in a fight." (Complaint, ¶8). T h a t day, Mustache was released from the GBCI segregation unit to the prison's g e n e ra l population. The plaintiff seeks compensatory and punitive damages "for the anxiety, fru s tra tio n , and mental anguish Mustache sustained as a result of the unlawful Major D is c ip lin a ry proceedings instituted against him." (Complaint, ¶10). He avers that the d e fe n d a n ts ' actions violated his Eighth and Fourteenth Amendment rights. A ltho u g h the plaintiff cites the Eighth and Fourteenth Amendments, the nature o f his claim (or claims) is not entirely clear. The bottom line is that the plaintiff is s e e k in g monetary damages for the thirty-five days he spent in segregation between th e conduct report on October 11, 2008, and November 14, 2008, when the warden re ve rs e d the hearing officer's decision. T h e plaintiff may be proposing a due process claim under the Fourteenth A m e n d m e n t. In order to state a due process claim, the plaintiff must have a

p ro te c te d liberty interest in remaining in the general population of the prison. "The C o n s titu tio n itself does not create an interest in avoiding transfer within a c o rrec tio n a l facility." Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008) (citing W ilk in s o n v. Austin, 545 U.S. 209, 222 (2005) and Meachum v. Fano, 427 U.S. 215, 2 2 5 (1976)). However, the Supreme Court has established that disciplinary

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s e g re g a tio n can trigger due process protections depending on the duration and c o n d itio n s of segregation. Marion v. Columbia Correctional Institution, 559 F.3d 693, 6 9 7 (7th Cir. 2009) (240 days of segregation was sufficiently long to implicate a c o g n iz a b le liberty interest if the conditions of confinement during that period were s u ff ic ie n tly severe). In contrast, "[i]n some cases, [the Seventh Circuit] has

d e s c rib e d an inmate's liberty interest in avoiding segregation as very limited or even n o n e xis ten t." Id. In this case, the plaintiff received a disposition of 180 days in segregation, but h e served only 35 days in segregation. Thus, the court must consider whether thirtyfiv e days in segregation gives rise to a liberty interest. The Seventh Circuit has held tha t "inmates have no liberty interest in avoiding placement in discretionary s e g re g a tio n ." Townsend, 522 F.3d at 766, 772 (prisoner segregation term of 59 d a ys ). Nor are due process concerns raised when a prisoner spends 60 days in s e g re g a tio n , among other punishments, as a result of his disciplinary conviction. H o s k in s v. Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005). The court concludes that th e plaintiff's 35 days in segregation does not give rise to a liberty interest protected b y the Fourteenth Amendment. Moreover, in many of the recent cases regarding liberty interests, it was u n d is p u te d that the respective plaintiffs had received no due process regarding their re m o va l from the general population. Marion, 559 F.3d at 695; Townsend, 522 F.3d a t 770; Gillis v. Litscher, 468 F.3d 488, 491-91 (7th Cir. 2006). Conversely, here, the

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p la in tiff has detailed the process he received in his complaint. In fact, the process th e plaintiff received was so effective that the warden's review resulted in a reversal o f the hearing officer's decision and the plaintiff's release back to the general p o p u la tio n after only 35 days (of an 180-day disposition). Thus, the plaintiff fails to s ta te a claim under the Fourteenth Amendment. It is also possible that the plaintiff could be asserting an Eighth Amendment c la im that being charged with a crime without evidence to support the charges c o n s titu te s cruel and unusual punishment. The Eighth Amendment prohibits cruel a n d unusual punishment and applies to the states through the Due Process Clause o f the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962). As d is c u s s e d above, "[t]he Constitution itself does not create an interest in avoiding tra n s fer within a correctional facility." Townsend, 522 F.3d at 771. Because the p la in tiff's 35 days in segregation do not give rise to a liberty interest, his placement th e re is not actionable under the Eighth Amendment. In the criminal context, every individual whose conviction is overturned on a p p e a l is not entitled to monetary damages. Similarly, the plaintiff is not entitled to c o m p e n s a tio n simply because the warden chose to reverse the hearing officer's d e c is io n . The plaintiff's complaint fails to state a claim upon which relief may be g ra n te d . See 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A c c o r d in g ly ,

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IT IS ORDERED that the plaintiff's motion for leave to proceed in forma p a u p e r is (Docket #2) be and is hereby GRANTED. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED p u rs u a n t to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s brought an action that was dismissed for failure to state a claim under 28 U.S.C. § § 1915(e)(2)(B) and 1915A(b)(1). IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s incurred a "strike" under 28 U.S.C. §1915(g). IT IS FURTHER ORDERED that the Secretary of the W is c o n s in Department o f Corrections or his designee shall collect from the plaintiff's prison trust account the $ 3 4 6 .6 3 balance of the filing fee by collecting monthly payments from the plaintiff's p ris o n trust account in an amount equal to 20% of the preceding month's income c re d ite d to the prisoner's trust account and forwarding payments to the Clerk of C o u rt each time the amount in the account exceeds $10.00 in accordance with 28 U .S .C . § 1915(b)(2). The payments shall be clearly identified by the case name and n u m b e r assigned to this action. IT IS FURTHER ORDERED that the Clerk of Court enter judgment a c c o r d in g ly .

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IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. D a te d at Milwaukee, W is c o n s in , this 16th day of June, 2009. B Y THE COURT:

J .P . Stadtmueller U .S . District Judge

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