Ludke v. Kettle Morraine Correctional Institution et al

Filing 36

ORDER Granting Defendants' Motion to Dismiss for Failure to State a Claim 32 , Denying as Moot Plaintiff's Motion for Order to Provide Law Library 31 and Dismissing Case. (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON M. LUDKE,
Plaintiff,
v.

Case No. 11-C-0506

KETTLE MORAINE CORRECTIONAL INSTITUTION,
WILLIAM McCREEDY, SGT SCHMIDT,
ROBERT HUMPHREYS, KELLY SALINAS,
JAMES LaBELLE, CHARLES COLE,
LORI ALSUM, and NURSE PALM,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE
A CLAIM (DOC. 32), DENYING AS MOOT PLAINTIFF’S MOTION FOR ORDER TO
PROVIDE EXTRA LAW LIBRARY (DOC. 31), AND DISMISSING CASE
Jason Ludke, a state prisoner, is proceeding pro se on class-of-one equal protection
and conspiracy claims against defendants because he was required to pay a $7.50 medical
copay after injuring himself while shoveling snow at Kettle Moraine Correctional Institution
(KMCI) on February 2, 2011. Plaintiff is seeking an order requiring KMCI to provide him
extra law library time, whereas defendants have filed a motion to dismiss for failure to state
a claim.
Federal Rule of Civil Procedure 12(b)(6) permits the dismissal of a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The purpose
of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint,
not the merits of the lawsuit. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76
(7th Cir. 2001). The court must construe the complaint in the light most favorable to the

nonmoving party, accept well-pleaded facts as true, and draw all inferences in plaintiff’s
favor. Reger Development, LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir. 2010).
A motion under Rule 12(b)(6) can be based on the complaint, documents attached
to the complaint, documents that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice. If a moving party relies on additional
materials, the motion must be converted to one for summary judgment under Rule 56. See
Fed.R.Civ.P. 12(d). A plaintiff, however, has much more flexibility in opposing a Rule
12(b)(6) motion. A party opposing a Rule 12(b)(6) motion may subject materials outside
the pleadings to illustrate the facts the party expects to be able to prove. Geinosky v. City
of Chicago, 675 F.3d 734, 745 n.1 (7th Cir. 2012) (citations omitted). In his opposition to
defendants’ motion, plaintiff relies on two sworn documents he filed in this case at docket
numbers 11 and 20, as well as the exhibits to those documents. Consequently, the court
has reviewed these documents and exhibits in deciding the motion to dismiss.
Defendants submit that recognition of a class-of-one theory in the prison context
would subject nearly all prison officials’ decisions to constitutional review in federal court.
They maintain that the decision to apply the medical copay to plaintiff was discretionary
after review of applicable prison policies and procedures. Defendants also argue that
plaintiff’s conspiracy claim fails because he does not have class-of-one equal protection
rights and, under the intra-corporate conspiracy doctrine, a federal civil conspiracy claim
cannot exist between members of the same entity. Finally, defendants ask that Kettle
Moraine Correctional Institution be dismissed as a defendant because it is not a person
that can be sued under § 1983.

2

According to the Seventh Circuit’s en banc per curiam opinion in Del Marcelle v.
Brown Cnty. Corp., 680 F.3d 887, 888 (7th Cir. 2012), “[t]he law concerning “class of one”
equal-protection claims is in flux, and other courts faced with theses cases may find the
discussion in the three opinions in this case helpful.” The court then published three
separate opinions discussing possible standards for class-of-one claims. Recently, in an
unpublished decision, the Seventh Circuit reaffirmed that even though it “has divided over
the necessity of showing illegitimate animus, the law is settled that a class-of-one plaintiff
must show at least intentionally discriminatory treatment lacking a rational basis.” Jordan
v. Cockroft, No. 12-1633, 2012 WL 3104876, at *2 (7th Cir. Aug. 1, 2012) (citing Del
Marcelle, 680 F.3d at 899, 913).
In Engquist v. Oregon Dep’t of Agriculture, 443 U.S. 591 (2008), the United States
Supreme Court eliminated class-of-one claims for government employees in a case
involving a former state employee laid off during agency reorganization who alleged she
was fired for arbitrary and malicious reasons. Id. at 595. The court found that some types
of state action inherently “involve discretionary decisionmaking based on a vast array of
subjective, individualized assessment.” Id. at 603. Shortly after the Engquist decision, the
Seventh Circuit held that just as public employees cannot bring class-of-one cases against
their employer, so also prosecutorial and sentencing discretion is not to be fettered by
class-of-one suits. United States v. Moore, 543 F.3d 891, 899-901 (7th Cir. 2008)
Some courts have even determined that class-of-one claims should not exist at all
in the prison context. See Russell v. City of Philadelphia, 2010 WL 2011593, *9 (E.D. Pa.
2010) (“[W]e cannot allow this claim for an Equal Protection violation to proceed to trial.

3

We simply are not prepared to intrude so far into the day-to-day operations of the prison
to say that on any given occasion, the prison could have no rational basis for moving a
prisoner into administrative segregation or moving a prisoner to a new job.”; Dawson v.
Norwood, 2010 WL 2232355 (W.D. Mich. 2010); Upthegrove v. Holm, 2009 WL 1296969,
*1 (W.D. Wis. 2009); Earnest v. King, 2011 WL 5075380 (W.D. Pa. 2011); Alexandar v.
Lopac, 2011 WL 832248, *2 (N.D. Ill. 2011); Dorch v. Munoz, 2011 WL 1987621, *8 (W.D.
Mich. 2011).
Plaintiff maintains that reliance on Engquist is misplaced because the decision to
charge him a $7.50 copay was not discretionary where there was a policy not to charge a
copay for work-related injuries. Wisconsin Administrative Code § DOC 316.05 sets forth
copayment exclusion and states: “Health services staff shall not charge an inmate or a
juvenile a copayment for any of the following: . . . (8) Any medical, dental or nursing
services provided as a result of an injury sustained through an institution work assignment.”
Wis. Admin. Code § DOC 316.05(8). According to plaintiff, defendants McCreedy and
Humphreys knew his injury was work-related but ignored their own policy to charge him the
copay. Plaintiff maintains he was intentionally treated differently from similarly situated
prisoners without a rational basis.
Rather than bolster his opposition to defendants’ motion to dismiss, the documents
provided by plaintiff reveal not just a rational basis for the decision to charge him the
copay, but the rational basis that defendants relied upon to charge the plaintiff the copay.
In response to interview and information request forms, defendants indicated that plaintiff
was performing extra duty as part of discipline and that such extra duty is not part of
plaintiff’s work assignment. The documents provided by plaintiff reveal that his work
4

assignment was in food services. Moreover, defendants exercised their discretion when
they determined the extra duty imposed by punishment did not constitute part of a
prisoner’s work assignment under § DOC 316.05(8).
Although plaintiff disagrees with the characterization of his extra duty as not part of
his work assignment, it is a rational basis for charging him the copay. Also, plaintiff is
unable to show that there was no rational basis for departing from state policy as set forth
in Wisconsin Administrative Code § DOC 316.05(8) and treating him differently. See
Jordan, 2012 WL 3104876, at *2. Therefore,
IT IS ORDERED that defendants’ motion to dismiss for failure to state a claim (Doc.
32) is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for order to provide extra law
library (Doc. 31) is DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE.
Dated at Milwaukee, Wisconsin, this 14th day of August, 2012.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge

5