Pirtle v. Cooper et al
Filing
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SCREENING ORDER signed by Judge Lynn Adelman on 8/12/15 that plaintiffs motion for leave to proceed in forma pauperis 2 is GRANTED. Further ordering that this case is hereby DISMISSED for failure to state a claim. The Clerk of Court will document that this inmate has 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) and that this inmate has incurred a strike under 28 U.S.C. §1915(g). Further ordering the Secreta ry of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prison trust account the $339.54 balance of the filing fee as set forth herein. Further ordering that the Clerk of Court enter judgment accordingly. (cc: all counsel, via USPS to plaintiff, Warden-GBCI)(dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CALVIN PIRTLE,
Plaintiff,
v.
Case No. 15-CV-685
SARAH COOPER,
MR. PICKERINGS,
MICHAEL MOHR,
CHARLES FACKTOR,
and CINDY O’DONNELL,
Defendants.
SCREENING ORDER
The pro se plaintiff, Calvin Pirtle, who is incarcerated at the Green Bay Correctional
Institution, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated. This matter comes before the court on plaintiff’s petition to proceed in forma
pauperis. He has been assessed and paid an initial partial filing fee of $10.46.
The court is required to screen complaints brought by prisoners seeking relief
against 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 prisoner 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 defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, plaintiff is
required to provide a “short and plain statement of the claim showing that [he] is entitled
to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for plaintiff to plead specific facts
and his statement need only “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he
was deprived of a right secured by the Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give plaintiff’s pro se allegations,
“however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff alleges that, on May 30, 2012, he was hired as a “bowl cook” at Green
Bay Correctional Institution (“GBCI”). He alleges that as a bowl cook, he qualified for a “5
rate” wage ($0.42/hour) but that he was actually paid a “2 rate” wage ($0.19/hour). This
occurred, he alleges, because “Mr. Pickerings,” the education director at GBCI, erroneously
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concluded that the plaintiff did not have the educational qualifications required for a wage
higher than the 2-rate. In February 2013, the plaintiff filed a complaint about this difference
in pay through the Wisconsin Department of Correction’s Inmate Complaint Review System
(“ICRS”). See Wis. Admin. Code ch. DOC 310. Shortly thereafter, a member of the prison
staff filed paperwork that promoted the plaintiff to a 5-rate wage. The wage was effective
as of March 17, 2013. On March 25, 2013, an inmate complaint examiner noted that the
plaintiff had been promoted to a 5-rate wage and dismissed his inmate complaint as moot.
The plaintiff then filed a second inmate complaint, this time requesting back pay for
the period between May 2012 and March 2013, when he was paid at the 2-rate wage
rather than the 5-rate wage. The inmate complaint examiner (“ICE”), Michael Mohr, denied
this complaint on the ground that the plaintiff had failed to prove that he was hired as a
bowl cook in May 2012.
After reviewing the paperwork surrounding the plaintiff’s
employment, Mohr concluded that in May 2012, the plaintiff had been hired as a “Kitchen
Worker 2" rather than a bowl cook, and that he was not promoted to the position of bowl
cook until the paperwork approving his 5-rate wage was filed in March 2013. Plaintiff then
appealed Mohr’s decision all the way through the ICRS but was denied relief.
In the present action, the plaintiff alleges that Mohr’s conclusion that he was not
hired as a bowl clerk until March 2013 was erroneous. He attaches to his complaint
several documents suggesting that he worked as a bowl cook as early as May 30, 2012.
See Exhibits G & H. As his federal cause of action, the plaintiff alleges that he was
deprived of property—specifically, back pay for working as a bowl clerk between May 2012
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and March 2013 and receiving 2-rate wages rather than 5-rate wages—without due
process of law.
A procedural due process violation occurs when (1) conduct by someone acting
under the color of state law (2) deprives the plaintiff of a protected property interest (3)
without due process of law. Tenny v. Blagojevich, 659 F.3d 578,581 (7th Cir. 2011). A
protected property interest is a “legitimate claim of entitlement” that is “defined by existing
rules or understandings that stem from an independent source such as state law.” Id. I
will assume for purposes of this screening order that the plaintiff had a protected property
interest in his back pay and that the defendants, acting under the color of state law,
deprived him of that interest. However, as explained below, the plaintiff has failed to
alleges facts from which it can be inferred that he was deprived of this property interest
without due process of law.
The fundamental problem with the plaintiff’s claim is that he is challenging the
defendants’ conclusion that he was hired as a kitchen worker in May 2012, not a bowl
cook, rather than the process that was used to reach that conclusion. In other words, the
plaintiff alleges that the defendants made a mistake of fact in the course of determining
whether he was entitled to back pay for the period May 2012 to March 2013, and he does
not allege that the process through which this mistake of fact was made was insufficient
under the due process clause. He does not identify any specific procedure that the
defendants should have followed, but did not, before determining that he was not entitled
to back pay at the 5-rate wage for the relevant period. And the allegations of the plaintiff’s
complaint and the attached exhibits show that the plaintiff was afforded some
process—namely, the process available under the ICRS. Thus, this case is really about
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a substantive violation of Wisconsin law, not about the procedures required before the
plaintiff can be deprived of a property interest. The plaintiffs' grievance is about what was
done (the refusal to pay him at a 5-rate wage for the relevant time period), not the
procedures followed to do it. For this reason, he has failed to state a claim for denial of
procedural due process. See Tenny v. Blagojevich, 659 F.3d 578, 583 (2011).
To be sure, the plaintiff alleges that when he appealed the ICE’s denial of his inmate
complaint to the corrections complaint examiner (“CCE”), the CCE affirmed the denial
“without an investigation.” Compl. at 3. This could be construed as a challenge to the
process he received. However, the plaintiff does not allege that the ICE failed to conduct
an investigation or that due process required the CCE to conduct a second, independent
investigation. Moreover, if the plaintiff believed that the CCE’s investigation (or lack
thereof) was deficient in some respect, he could have raised that issue within the ICRS or
sought certiorari review of the denial of his inmate complaint in state court. See See State
ex rel. Grzelak v. Bertrand, 263 Wis.2d 678, 687–88 (2003) (noting that state court may
review final ICRS decisions by certiorari); Anderson-El v. Bie, 230 Wis. 2d 749, 1999 WL
741471, at *3 (Ct. App. 1999) (noting that inmate may challenge ICRS decision concerning
prison compensation by certiorari). Thus, even assuming that the CCE was required to
conduct a second investigation, the plaintiff had additional “post-deprivation” remedies
available to him that he could have exercised. See generally Parratt v. Taylor, 451 U.S.
527 (1981) (holding that where “pre-deprivation” hearing is impractical and state makes
adequate “post-deprivation” procedures available to plaintiff, no violation of procedural due
process has occurred). The plaintiff has not alleged that these additional remedies were
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deficient or that the due process clause required the defendants to afford him some other
form of process. Accordingly, the plaintiff’s federal due process claim must be dismissed.
Before concluding, I note that the plaintiff in his complaint cites two provisions of
state law. The first is Wis. Admin. Code § DOC 310.03(10), which defines “malicious
injury.” The plaintiff seems to believe that the denial of his back pay constituted malicious
injury. Whether or not that is true, the Administrative Code provision that he cites does not
create a cause of action for malicious injury. Rather, it merely defines the term. A later
provision of the Code provides that an ICE may reject an inmate complaint if an inmate
filed it “solely for the purpose of . . . causing malicious injury” to various persons. Wis.
Admin. Code § DOC 310.11(5)(a). Thus, the plaintiff cannot maintain a cause of action
based on the DOC provisions relating to malicious injury.
Second, the plaintiff cites a Wisconsin statute making a public official’s falsifying a
document a crime, Wis. Stat. § 946.12(4). I assume that the plaintiff believes that
someone falsified some document in the course of determining that he was not entitled to
back pay. However, no factual allegation in the complaint states that any defendant
falsified any public document. In any event, a violation of this provision of state law would
not give rise to a federal cause of action. To the extent the plaintiff means to assert a
cause of action under state law, he may not pursue it in this action because, as explained
above, the plaintiff has not alleged any federal cause of action. Thus, there is no basis for
supplemental jurisdiction over any state-law claims. See 28 U.S.C. § 1367.
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CONCLUSION
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket 2) is GRANTED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED pursuant
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 has
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 has
incurred a “strike” under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff’s prison trust account the $339.54
balance of the filing fee by collecting monthly payments from plaintiff’s prison trust account
in an amount equal to 20% of the preceding month’s income credited to the prisoner’s trust
account and forwarding payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be
clearly identified by the case name and number assigned to this action.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 12th day of August, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
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