Jackson v. Department of Corrections et al
Filing
7
ORDER signed by Judge Pamela Pepper on 2/10/2017 GRANTING 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and SCREENING 1 the Complaint. (cc: all counsel; by US Mail to Plaintiff) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEBRADRE D. JACKSON,
Plaintiff,
v.
Case No. 16-cv-1584-pp
DEPARTMENT OF CORRECTIONS,
RACINE CORRECTIONAL INSTITUTION,
DIEBOLD,
LT. LONDRE,
PAUL S. KEMPER,
CAPT. GIERNOTH,
DEPUTY JOHNSON, and
C. O’DONNELL,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3)
AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a civil rights complaint under 42 U.S.C. §1983, alleging that the defendants
violated his Fourteenth Amendment rights at the Racine Correctional
Institution. Dkt. No. 1. This order resolves the plaintiff’s motion for leave to
proceed without prepayment of the filing fee, dkt. no. 3, and screens the
plaintiff’s complaint.
I.
THE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE
The Prison Litigation Reform Act applies to this case because the plaintiff
was incarcerated when he filed his complaint. 28 U.S.C. §1915. The law allows
a court to give an incarcerated plaintiff the ability to proceed with his lawsuit
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without pre-paying the civil case-filing fee, as long as he meets certain
conditions. Id. One of those conditions is a requirement that the plaintiff pay
an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial
partial filing fee, the court may allow the plaintiff to pay the balance of the
$350 filing fee over time, through deductions from his prisoner account. Id.
On December 9, 2016, the court assessed an initial partial filing fee of
$1.63. Dkt. No. 6. The plaintiff made payment in the amount of $2.00 on
January 13, 2017. Therefore, the court will grant the plaintiff’s motion for leave
to proceed without prepayment of the filling fee and will allow the plaintiff to
pay the balance of the $350.00 filing fee over time from his prisoner account,
as described at the end of this order.
II.
SCREENING OF THE PLAINTIFF’S COMPLAINT
A.
Standard for Screening Complaints
The Prison Litigation Reform Act requires federal courts 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
may dismiss an action or portion thereof if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
To state a 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). The complaint need not plead specific
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facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to the
assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives 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)).
B.
Facts Alleged in the Complaint
On June 28, 2016, Lieutenant Londre removed the plaintiff from general
population and placed him in Temporary Lock-Up (“TLU”) pending “an
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investigation.” Dkt. No. 1 at 2. Unit Manager Diebold authorized Londre to
make the transfer. Id. Later in July 2016, Captain Giernoth released the
plaintiff from TLU and took him to Restrictive Housing—Behavioral
Modification Unit (“Green Unit”). Id. Deputy Warden Johnson authorized the
transfer from TLU to Green Unit. Id. at 5. The plaintiff provides no further
information on what happened with the “investigation,” how long he remained
in TLU, the conditions in TLU, why he was released from TLU, or whether he
was charged with a rule violation pursuant to the investigation. Id. at 2. The
plaintiff remained in Green Unit for about eighty days. Id.
Green Unit is a housing unit used to prepare inmates for transfer from
TLU back to general population. Id. Inmates in Green Unit have restricted
telephone privileges, restricted movement in the dayroom and during
recreation, and have to wear a different color uniform than inmates in general
population. Id. at 2-3. While in Green Unit, the plaintiff did not have access to
his “personal property” (TV, radio, fan, etc.) and could not wear his “personal
clothing” (sweatpants, shorts, t-shirts). Id. at 3. The plaintiff also had to wear
his yellow uniform during family visits until he advanced from “level A” to “level
C.” Id.
As a result of the restrictions, the plaintiff became depressed. Id. at 4. He
spoke with Captain Chapman (not a defendant) about his depression. Id. The
plaintiff states that Chapman did not know why the plaintiff was on Green Unit
but that Giernoth had emailed Chapman to inform him that the plaintiff should
be there. Id. The plaintiff also spoke with Diebold, who stated that she did not
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know why the plaintiff was in Green Unit, but that the plaintiff “had [his] hand
in the cookie jar somehow.” Id. at 5. Finally, the plaintiff also spoke with
Deputy Warden Johnson, and Johnson stated that he knew about the
plaintiff’s situation because he had authorized the transfer to Green Unit. Id.
The plaintiff filed an inmate complaint about his transfer to Green Unit,
and Paul S. Kemper dismissed the complaint. Id. at 6. The plaintiff appealed
that decision C. O’Donnell dismissed the appeal. Id.
C.
Legal Analysis of Alleged Facts
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)).
The Fourteenth Amendment protects an individual against deprivation of
life, liberty, or property without due process of law. U.S. Const. Amend. XIV.
“Those who seek to invoke [the Fourteenth Amendment’s] procedural protection
must establish that one of those interests is at stake.” Wilkerson v. Austin, 545
U.S. 209, 221 (2005). An inmate has a liberty interest in being in the general
prison population only if the conditions of his or her confinement impose
“atypical and significant hardship . . . in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). However, “[i]nmates
have no liberty interest in avoiding transfer to discretionary segregation—that
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is segregation for administrative, protective, or investigative purposes.” Id. This
is because discretionary, or administrative, segregation is not considered
“atypical,” but rather an “ordinary incident of prison life” that prisoners should
anticipate during their time in prison. Townsend v. Fuchs, 522 F.3d 765, 771
(7th Cir. 2008).
Once the plaintiff establishes a liberty interest, “[d]ue process requires
that prisoners in a disciplinary proceeding be given: ‘(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.’” See RasheedBey v. Duckworth, 969 F.2d 357, 351 (7th Cir. 1992).
According to the complaint, Londre and Diebold transferred the plaintiff
from general population to TLU pending an “investigation.” The plaintiff
provides no further information about what happened, or whether he had a
disciplinary proceeding before or after the transfer. Gienoth and Johnson then
transferred the plaintiff from TLU to the Green Unit “to prepare [him] for a
return to general population.” He remained in Green Unit for about eighty
days, during which he lost certain privileges that he used to have in general
population. The plaintiff states that he never got a hearing before losing these
privileges.
At this very preliminary stage of the litigation, the court will allow the
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plaintiff to proceed with a procedural and a substantive due process claim
against Londre, Diebold, Giernoth, and Johnson, because he has alleged that
they subjected him to discipline without proper process. As the court noted
above, however, the plaintiff has provided very few facts about what happened,
and some of those missing facts will be important at later stages in the case.
See Kervin v. Barnes, 787 F.3d 833, 836-37 (7th Cir. 2015)( concluding that a
period of segregation considerably shorter than six months does not establish a
deprivation of liberty absent other harsh and atypical conditions of
confinement that amount to punishment); see also Miller v. Dobier, 634 F.3d
412, 414 (7th Cir. 2011)( “Separation from general population is not, by itself, a
significant [liberty] deprivation.”).
The court will dismiss the Department of Corrections, Racine
Correctional Institution, Paul S. Kemper, and C. O’Donnell as defendants. The
Department of Corrections and the Racine Correctional Institution are not
“persons” within the meaning of §1983. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 70-71 (1989).
As to Kemper and O’Donnell, liability under §1983 is based on a
defendant’s “personal involvement” in the constitutional deprivation. Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Kemper and O’Donnell’s
“personal involvement” in the incidents the plaintiff describes was limited to
“dismissing” the plaintiff’s inmate complaint and appeal. Dismissing a
complaint, absent other wrongful acts, does not state a claim for “deliberate
indifference.” See Burks v. Rasmisch, 555 F.3d 592, 595-96 (7th Cir.
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2009)(concluding that an inmate complaint examiner is not liable under § 1983
for merely dismissing an inmate’s complaint; a complaint examiner shows
deliberate indifference only when he refuses to do his job or “routinely sends
grievances to the shredder without reading them.”).
To the extent that the plaintiff seeks to assert an “official capacity” claim
against Kemper and O’Donnell, he fails to allege facts which show that these
individuals have taken unconstitutional actions which require them to
“conform future conduct.” See Quern v. Jordan, 440 U.S. 332, 337
(1979)(concluding that §1983 claims against state actors in their official
capacity are limited to injunctive or declaratory relief “to conform future
conduct to the requirements of federal law.”) The plaintiff alleges that Kemper
and O’Donnell are “decision makers” for Racine Correctional Institution, but he
does not identify any unconstitutional decisions, policies, or actions that
require future change.
III.
CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 3. The court ORDERS the Secretary of
the Wisconsin Department of Corrections or his designee to collect from the
plaintiff's prison trust account the $348.00 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.
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§1915(b)(2). The Secretary shall clearly identify the payments by the case name
and number. The court will send a copy of this order to the warden of the
Racine Correctional Institution, where the plaintiff is confined.
The court further ORDERS that the Department of Corrections, Racine
Correctional Institution, Paul S. Kemper, and C. O’ Donnell are DISMISSED as
defendants.
The court ORDERS that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of the
plaintiff’s complaint and this order are being electronically sent today to the
Wisconsin Department of Justice for service on Diebold, Lt. Londre, Capt.
Giernoth, and Deputy Warden Johnson. Diebold, Lt. Londre, Capt. Giernoth,
and Deputy Warden Johnson shall file a responsive pleading to the complaint
within sixty days of receiving electronic notice of this order.
The court 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the matter. Because the clerk’s office staff
will electronically scan and enter on the docket each document filed upon
receipt, the plaintiff need not mail copies to the defendants. All defendants will
be served electronically through the court’s electronic case filing system. The
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plaintiff should also retain a personal copy of each document filed with the
court.
The court advises the plaintiff that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. 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.
Dated in Milwaukee, Wisconsin this 10th day of February, 2017.
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