Larry v. Meisner et al
Filing
8
DECISION AND ORDER signed by Judge Pamela Pepper on 9/27/2016 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and screening the complaint. (cc: all counsel; by US Mail to Plaintiff and Warden at Gilmer FCI) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ORLANDO LARRY,
Plaintiff,
v.
Case No. 16-cv-1108-pp
MICHAEL MEISNER, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT
______________________________________________________________________________
The plaintiff, who is representing himself, is a former Wisconsin state
prisoner, who at the relevant time was incarcerated at Columbia Correctional
Institution. He currently is incarcerated at Gilmer Federal Correctional
Institution. Dkt. No. 1 at 1. He filed this lawsuit under 42 U.S.C. §1983, Dkt.
No. 1, along with a motion for leave to proceed without prepayment of the filing
fee, Dkt. No. 2. This order resolves that request and screens the plaintiff’s
complaint.
I.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
1
conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On August 23, 2016, U.S. Magistrate Judge David E. Jones (the assigned
judge at that time) ordered the plaintiff to pay an initial partial filing fee of
$27.47. Dkt. No. 5. On September 2, 2016, the plaintiff filed his refusal to
consent to jurisdiction by a magistrate judge, so the clerk’s office reassigned
the case to this court. The plaintiff paid the initial partial filing fee on
September 19, 2016. Accordingly, the court will grant the plaintiff’s motion.
The court will require the plaintiff to pay the remainder of the filing fee over
time as set forth at the end of this decision.
II.
Screening the Plaintiff’s Complaint
The law requires the court 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 plaintiff raises 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).
A claim is legally frivolous “‘when it lacks an arguable basis either in law
or in fact.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). The court may, therefore, dismiss a claim
as frivolous where it is “based on an indisputably meritless legal theory” or
where the factual contentions are clearly “baseless.” Neitzke, 490 U.S. at 327.
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“Malicious,” although “sometimes treated as a synonym for ‘frivolous,’ . . . is
more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d
1107, 1109-10 (7th Cir. 2003) (internal citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. 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).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
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with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. of N. 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 the plaintiff’s pro
se allegations, “however inartfully pleaded,” a liberal construction. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
A. The Plaintiff’s Allegations
The plaintiff alleges that on August 2, 2011, during the month of
Ramadan, Officer Goldsmith1 “summonsed his supervisors” to place him in
segregation. Dkt. No. 1 at 3. The plaintiff states that Goldsmith had him placed
in segregation “for praying under false pretenses that he ordered [the plaintiff]
to stop praying and [the plaintiff] would not.”2 Id. Lt. Kevin Boodry,
In the complaint, the plaintiff names “John Doe (i.e. Officer Goldsmith).” Dkt.
No. 1 at 2. The caption does not include a John Doe and there are no
allegations in the complaint against a John Doe, so the court assumes that the
plaintiff used “John Doe” only because he does not know Goldsmith’s first
name, and not because he intended to name an additional, unidentified
individual as a defendant in this lawsuit.
1
The cannot tell whether the plaintiff is saying that Goldsmith falsely alleged
that the plaintiff was praying under false pretenses, or that Goldsmith falsely
2
4
accompanied by several correctional officers, placed the plaintiff in mechanical
restraints and escorted him to segregation unit DS1, where he was strip
searched and placed into a cell. Id.
Goldsmith wrote a major conduct report, stating that the plaintiff
disobeyed an order, was disruptive, and engaged in group resistance and
petitioning. Id. at 3, 6. The plaintiff states he was informed of his hearing rights
and given a copy of the conduct report, although he does not state who
informed him or provided him with a copy. Id. at 6. The plaintiff states he
requested several witnesses to be present (he does not state to whom he made
the request or whether his request was granted), and asked Security Director
Janel Nickels “to review [his] placement in DS1 and to provide in camera
inspection for evidence at [his] disciplinary hearing.”3 Id. at 6, 4. Nichols did
“accommodate” the plaintiff’s request. Id. at 4.
Captain Donald Morgan found the plaintiff guilty at the disciplinary
hearing and sentenced him to sixty days in segregation. Id. Correctional Officer
Grant (who is not named as a defendant) escorted the plaintiff to segregation
unit DS2 and placed the plaintiff in a one-man cell. Id. Grant informed the
alleged that the plaintiff refused to stop praying when Goldsmith told him to
stop.
3
This allegation is vague; the court assumes the plaintiff means that he
requested that Nickels independently review the evidence presented at the
disciplinary hearing. The court does not read this to mean that the plaintiff was
prevented from viewing the evidence presented at the hearing. On page 6 of the
plaintiff’s complaint, he does vaguely state that he was “denied video evidence,”
but he does not state who denied him such evidence, whether the hearing
officer relied on the evidence, or even what the video evidence that he was
allegedly denied showed.
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plaintiff that he would sleep on the floor4 by the toilet because the cell was
already occupied. Id. The plaintiff explained that he couldn’t sleep on the floor
because he has back problems, and he expressed concern that the cell was too
small to house him, another inmate, and all of their possessions. Id. He asked
Grant if he could go back to DS1. Id. Grant agreed, but warned the plaintiff
that he might receive a conduct report. Id.
The plaintiff then received another major conduct report. Id. According to
the plaintiff, the report falsely accused him of refusing to let Grant take the
cuffs off and refusing to stay in DS2. Id. At the disciplinary hearing, Lieutenant
Thomas Schoenburg found the plaintiff guilty and sentenced him to 120 days
in segregation. Id. at 5. The plaintiff was escorted back to unit DS2 and forced
to sleep on the floor, which the plaintiff states aggravated his injured back.5 Id.
The plaintiff states that while he was in segregation he was not allowed
to attend Friday Jumuah Services, he could not make wudu for purification, he
was not allowed to participate in the Eid Al Fitr feast, the Eid ul Adha feast, or
group prayers, and he was fed bagged meals once per day during the entire
month of Ramadan. Id. The plaintiff does not clarify who denied him the
opportunity to participate in these activities. Also, the plaintiff states that the
Program Review Committee increased his custody level from minimum to
maximum. Id.
The plaintiff does not clarify if he was instructed to sleep directly on the floor
or on a mattress on the floor.
5
The plaintiff does not state who escorted him back to DS2, nor does he allege
whether he complained to anyone other than Grant about his back problems.
4
6
B. The Court’s Analysis
The plaintiff states that the defendants violated his right to freedom of
religion under the First Amendment, his right to be free from cruel and
unusual punishment under the Eight Amendment, and his due process rights
under the Fourteenth Amendment. Id. at 6.
1.
Defendants Nickels and Meisner
The plaintiff alleges that he asked Nickels, the security director, to
independently review the evidence presented at the disciplinary hearing (and
that Nickels declined to do so), and that Meisner affirmed the decisions of the
disciplinary hearings officers. Section 1983 limits liability to public employees
who are personally responsible for a constitutional violation. Burks v.
Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). For liability to attach, the
individual defendant must have caused or participated in a constitutional
violation. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014,
1039 (7th Cir. 2003). While the plaintiff argues that the defendants who denied
him video evidence and found him guilty on what he argues were false
allegations violated his due process rights, he does not allege that Nickels or
Meisner were involved in making those decisions. He complains only that
Nickels failed to accommodate his request to separately review the evidence,
and that Meisner failed to overturn the decisions.
Supervisory officials—superintendents of prisons, wardens, complaint
examiners--are “entitled to relegate” to others day-to-day duties, such as
conducting disciplinary hearings. Burks v. Raemisch, 555 F.3d 592, 595–96
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(7th Cir. 2009). And even if Captain Morgan was wrong in finding the plaintiff
guilty, and Nickels somehow knew that, the “contention that any public
employee who knows (or should know) about a wrong must do something to fix
it is just an effort to evade, by indirection, [the Monnell v. Dep’t of Social
Services of City of New York, 436 U.S. 658 (1978)] rule that public employees
are responsible for their own misdeeds but not for anyone else’s.” Id. at 596.
Similarly, Meisner did not become liable when he ruled against the plaintiff on
his grievance because doing so did not cause or contribute to the alleged
constitutional violation. Id.; George v. Smith 507 F.3d 605, 609-10 (7th Cir.
2007) (“Only persons who cause or participate in the violations are
responsible.”). Because the plaintiff has not alleged any person involvement by
these defendants in the alleged due process violations, the court will dismiss
them from the lawsuit.
2.
Defendants Morgan and Schoenburg
Disciplinary segregation can trigger due process protections. Marion v.
Columbia Correction Inst., 559 F.3d 693, 697 (7th Cir. 2009) (citations
omitted). When making the determination whether an inmate was entitled to
such protections, courts should analyze “the combined import of the duration
of the segregative confinement and the conditions endured by the prisoner
during that period.” Id. If conditions in segregation are significantly harsher
than those in the normal prison environment, then a liberty interest may arise
even when the duration of the segregation, standing alone, would not trigger
such an interest. Id. at 697-98.
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Here, the plaintiff alleges that he was subjected to disciplinary
segregation sentences of sixty days and 120 days. These are not extreme
periods of time, and standing alone, do not trigger due process rights. Id. at
697 (citing Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)). The plaintiff
also alleges, however, that he was forced to share a one-man cell with another
inmate and to sleep on the floor despite back problems, and that he was
deprived of the opportunity to participate in religious feasts, prayers and
rituals. Taken as a whole, the plaintiff’s allegations are sufficient at the
screening stage to trigger due process protections, because the conditions he
endured while in segregation may have “impose[d] atypical and significant
hardship[s] on [him] in relation to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472 (1995).
Although the plaintiff’s allegations may trigger due process protections,
he fails to sufficiently allege that those protections were violated. In Wolff, the
Supreme Court held that,
[b]efore being deprived of a protected liberty interest [(i.e.,
here, to remain in general population)], a prisoner is entitled to (1)
advance (at least 24 hours before hearing) written notice of the
claimed violation; (2) the opportunity to be heard before an
impartial decision maker; (3) the opportunity to call witnesses and
present documentary evidence (when consistent with institutional
safety); and (4) a written statement by the fact-finder of the
evidence relied on and the reasons for the disciplinary action.
Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992) (citing Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974).
The plaintiff’s complaint provides little description of the disciplinary
hearings that resulted in his being moved to segregation. He states that he
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received a copy of the conduct report and was informed of his hearing rights.
Dkt. No. 1 at 6. He also states that he requested the presence of several
witnesses at his first hearing, but he does not clarify to whom he made that
request. The states this fact in the same sentence in which he indicates that he
asked Security Director Nickels to independently review his placement, id., and
finishes the sentence with “Janel Nickel did not accommodate this request,” id.
at 4. It appears that he alleges that Nickel did not agree to independently
review his placement, but he does not say anything about whether his request
for witnesses was granted or denied, and by whom.
The plaintiff alleges only that Morgan found him guilty at the first
hearing and that Schoenburg found him guilty at the second hearing, and that
they did so based on “false allegations.” Id. at 6. As the court noted above, it is
not clear what the alleged false allegations were with regard to the first conduct
report; with regard to the second one, he says that he was falsely accused of
refusing to let Officer Grant remove his handcuffs and refusing to stay in DS2.
Id. at 4. The fact that these defendants found the plaintiff guilty at the
disciplinary hearing is not sufficient, standing alone, to state a claim that they
violated his due process rights. In order for a hearing examiner to be
constitutionally liable for adjudging an inmate guilty based on false evidence,
the examiner has to know that the evidence was false. Wilson v. Greetan, 571
F.Supp.2d 948, 955 (W.D. Wis. 2007). An examiner “is not required to believe
the prisoner in every instance or face liability for violating the prisoner’s
constitutional rights.” Id. To prove that either of these defendants knowingly
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relief on false evidence, the plaintiff has to demonstrate that they “did not
honestly believe that the conduct report was valid, but . . . decided to find
plaintiff guilty of it anyway.” Id. The plaintiff has not demonstrated that here.
The plaintiff also alleges that he was “denied video evidence.” Dkt. No. 1
at 6. As the court has noted, he does not explain what this evidence was, or
what it would have showed. But an examiner does “not have a constitutional
obligation to consider all of the evidence that plaintiff wanted him to consider.”
Wilson v. Geetan, 571 F. Supp. 2d at 956.
In short, the plaintiff has not alleged sufficient facts to support a claim
that Morgan or Schoenburg violated his due process rights, and the court will
dismiss them from the case.
3.
Defendant Goldsmith
The plaintiff alleges that Goldsmith falsely stated that the plaintiff
refused to follow his order to stop praying (or falsely alleged that he was
praying under false pretenses). As a result, the plaintiff was given a major
conduct report for disobeying an order. Even assuming that Goldsmith did
make a false statement, lying does not violate the Constitution. Not even the
fact that the plaintiff received a false conduct report or was ultimately found
guilty of a false conduct report gives rise to a constitutional violation, on its
own. “[A] prison disciplinary proceeding is not a criminal prosecution and ‘the
full panoply of rights due a defendant in such proceedings does not apply.’”
Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (quoting Wolff v.
McDonnell, 418 U.S. at 556). The procedural due process protections outlined
11
in Wolff are the major means of protection that prisoners have against such
arbitrary government actions as those described by the plaintiff. Id. at 1142.
The court already has found that the plaintiff has not alleged sufficient facts to
demonstrate that Morgan or Schoenburg denied him those protections; he also
fails to state a due process claim against Goldsmith, and the court will dismiss
him as a defendant.
4.
Defendant Boodry
The only allegation against Boodry is that, following Goldsmith’s conduct
report, he, along with some unidentified corrections officers, placed the plaintiff
in mechanical restraints and escorted him to segregation DSI, where the
plaintiff was strip searched (the plaintiff does not state by whom) and placed
into a cell. Dkt. No. 1 at 3. This allegation does not support a claim that Boodry
violated any of the plaintiff’s constitutional rights. The court will dismiss him
as a defendant.
5.
Potential First Amendment and Eighth Amendment claims
The plaintiff alleges that, while he was in segregation, he was “restricted
from attending Friday Jumuah services, could not properly make wudu for
purification, was restricted from participating in the Eid Al Fitr feast and
congregational prayer, was restricted from participating in Eid ul Adha feast
and group prayer, and fed bagged meals once daily during the entire month of
Ramadan.” Dkt. No. 1 at 5. Further, the plaintiff alleges that he was forced to
stay in an overcrowded cell and “sleep on the floor resulting in injury to [his]
back.” Id. at 4, 5.
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These allegations may well give rise to a cause of action under the First
Amendment for violation of the defendant’s freedom to exercise his religion, or
to a conditions-of-confinement claim under the Eighth Amendment. The
question is, against whom? The plaintiff fails to identify who denied him the
opportunity to participate in these religious activities and who forced him to
sleep on the floor. He also fails to state whether he informed anyone (other
than Officer Grant, who the plaintiff did not name as a defendant) that the cell
was too crowded and that he had back problems that were made worse by
sleeping on the floor. He is silent about what response, if any, he received to
those complaints. As the court has explained, §1983 provides lawsuits against
individuals based only on their own actions—they will not be held liable for the
actions of others. The plaintiff cannot state a claim based on this alleged
misconduct unless he identifies who is responsible for it.
If the plaintiff wants to proceed, he must file an amended complaint
curing the deficiencies in the original complaint described above. He must file
the amended complaint in time for the court to receive it on or before
October 28, 2016. If he fails to file an amended complaint before the
deadline, the court will dismiss this case without further notice to the plaintiff.
The amended complaint must bear the docket number assigned to this
case, and must be labeled “Amended Complaint.” The amended complaint
takes the place of the prior complaint, and must be complete in itself without
reference to the original complaint. See Duda v. Bd. of Educ. of Franklin Park
Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the
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appellate court emphasized that in such instances, the “prior pleading is in
effect withdrawn as to all matters not restated in the amended pleading[.]” Id.
at 1057 (citation omitted). If the court receives an amended complaint by the
October 28 deadline, the court will screen it pursuant to 28 U.S.C. §1915A.
III.
Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 2).
The court also ORDERS that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $322.53 balance of the filing fee by collecting monthly payments
from the 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 Secretary
or his designee shall identify the payments with the case name and number.
The court further ORDERS that, if the plaintiff wants to file an amended
complaint to address the problems discussed in this order, he must do so on or
before October 28, 2016.
The court further ORDERS the plaintiff to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the case.
The court advises the plaintiff that failure to timely file documents may
result in the court dismissing this case for failure to prosecute. In addition, the
parties must notify the Clerk of Court of any change of address. Failure to do
so could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
The court will send a copy of this order to the warden of the institution
where the plaintiff is currently incarcerated.
Dated in Milwaukee, Wisconsin this 27th day of September, 2016.
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