Brown v. Kamphuis et al

Filing 12

ORDER signed by Judge Pamela Pepper on 4/26/2017 GRANTING 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee; SCREENING Complaint under 28 U.S.C. sec. 1915A, and DISMISSING case without prejudice. (cc: all counsel; by US Mail to plaintiff and Warden at Waupun CI) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 17-cv-142-pp

NICOLE KAMPHUIS, M. HILLE,
BRIAN FOSTER, TONIA MOON,
S. STABB, CINDI O’DONNELL,
BRAD HOMPE, MARC CLEMENTS,
JON LITSCHER, AND WILLIAM POLLARD,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING
COMPLAINT UNDER 28 U.S.C. §1915A, AND DISMISSING CASE WITHOUT
PREJUDICE
______________________________________________________________________________
Plaintiff Ennis Lee Brown, 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 rights under federal and state law.
Dkt. No. 1. This order resolves the plaintiff’s motion for leave to proceed
without prepayment of the filing fee (in forma pauperis) and screens the
plaintiff’s complaint.
I.

IN FORMA PAUPERIS STATUS
The Prison Litigation Reform Act applies to this case because the plaintiff

is incarcerated. 28 U.S.C. §1915. The law allows a court to give an incarcerated
plaintiff the ability to proceed with his lawsuit without pre-paying the civil

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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 February 2, 2017, the court assessed an initial partial filing fee of
$7.36. Dkt. No. 5. The plaintiff paid $8.00 on February 10, 2017. Therefore, the
court will grant the plaintiff’s motion for leave to proceed without prepayment
of the filing fee, and will allow the plaintiff to pay the balance of the $350 filing
fee over time from his prisoner account, as described at the end of this order.
II.

SCREENING OF 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 part or all of a case 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
facts, and need only provide “fair notice of what the . . . claim is and the
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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. Indeed, 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

The plaintiff is incarcerated at the Waupun Correctional Institution
(Waupun). Dkt. No. 1 at 3. He alleges that Waupun’s inmate accounts
department illegally took his money, contrary to Wisconsin law, Wisconsin
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Department of Corrections (DOC) policy, Wisconsin Division of Adult
Institutions (DAI) policy, and the plaintiff’s judgment of conviction. Id.
According to the plaintiff, on October 21, 2013, he was sentenced in his state
criminal case, State of Wisconsin v. Brown, Milwaukee County Case Number
2012CF3796. Id. As part of the plaintiff’s sentence, the court ordered him to
pay court costs, a DNA victim witness surcharge, and fees, under Wis. Stat.
§973.05(4)(b). Id. The plaintiff’s judgment of conviction states that Brown
should “[p]ay applicable costs, surcharges, victim witness surcharge and
assessments. To be paid through collection by DOC from 25% of funds under
Sec 973.05(4)(b).” See Dkt. No. 1-1 at 1-2.
1. Use of Gifted Funds
The plaintiff alleges that when he arrived at Waupun in January 2014,
the accounts department began to take money from all funds, “contrary to the
court ordered 25% of earned funds order Wis. Stat. §973.05(4)(b).” Dkt. No. 1 at
4 (emphasis added). The plaintiff asked why money that people had given him
as a gift was being used for obligations; defendant N. Kamphuis responded that
“it must state 25% of earned funds on the J.O.C.” Id. The plaintiff asserts that
Kamphuis refused to correct the erroneous use of the gifted funds.1 Id.

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 Wisconsin Statute §973.05(4)(b) provides in relevant part:

(4) If a defendant fails to pay the fine, surcharge, costs, or fees
within the period specified under sub. (1) or (1m), the court may do
any of the following:
…
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2. Denial of Access to Release Account
In 2015 and 2016, the plaintiff attempted to obtain money from his
“inmate release account” to pay his court filing fees. Id. Defendant Kamphuis
denied the plaintiff’s request because he didn’t have a court order; the plaintiff
alleges that this denial was contrary to DOC policy, which allows inmates to
use their release account to pay filing fees. Id. The plaintiff states that his
family paid the initial filing fee and, as a result, he was forced to postpone a
case in the Seventh Circuit. Id.
In April or May 2015, the plaintiff asked to use his release account to pay
the initial filing fee for a civil suit, and he asked again in February 2016. Id. at
7. He also filed a complaint about defendant Kamphuis’s denial of access to his
release account. Id. The plaintiff indicates that in January 2016, Kamphuis
began to remove money from his release account after denying him access to it.
Id. He says that she took funds to pay court fees without his consent or a court
order, contrary to DOC policy. Id.
3. Denial of Legal Loan
The plaintiff recounts that around July 2016, he attempted to obtain a
legal loan, and argues that he met the requirements because he had no funds
in his regular account. Id. at 5. He says that Kamphuis denied the request,
because the plaintiff had spent a “large amount of money on canteen,” which

(b) Issue an order assigning not more than 25% of the defendant’s
commissions, earning, salaries, wages, pension benefits, benefits
under ch. 102, and other money due or to be due in the future to
the clerk of circuit court for payment of the unpaid fine, surcharge,
costs, or fees.  
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the plaintiff denies. Id. The plaintiff says that he filed an inmate complaint
about the denial, but that the warden, the investigator, and the assistant to the
secretary of the DOC all agreed with Kamphuis and directed the plaintiff to
plan his spending to include legal costs. Id.
4. Act 355
The plaintiff asserts that on July 1, 2016, the secretary of the DOC
implemented Act 355, which he says amended Wis. Stat. §§301.32(1) and
973.20(11), and allowed the DOC to collect 50% of an inmate’s funds for
restitution. Id. at 5. The plaintiff alleges that while the amended statute
discussed the warden’s “authority to collect” court-owed obligations, it failed to
address Wis. Stat. §973.05(4)(b). Id. He says that the DOC then began to take
50% of all funds sent to the plaintiff or earned by him; he alleges that this
action was contrary to Wis. Stat. §973.05. Id. The plaintiff claims that the
implementation of Act 355 violated “ex post facto and due process” in his case.
Id. He says that he wrote to the inmate accounts department after the July 1,
2016, 50% deductions, but that Kamphuis either provided false information or
did not respond to the plaintiff’s requests. Id.
The plaintiff indicates that on October 24, 2016, he again wrote to
Kamphuis to get a copy of the payments made on his court-ordered obligations.
Id. He explains that defendant M. Hille responded, stating that “he could not
give me copies and would print a report.” Id. The plaintiff says that he
requested the report, but that Hille told him to wait until November 1, 2016,

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because he didn’t want the plaintiff to waste his money. Id. The plaintiff says
that he did not obtain the requested records of payments made. Id.
On November 15, 2016, the plaintiff says, he wrote to Hille to address the
funds that had been taken contrary to the judgment of conviction for the
previous thirty-four months. Id. The plaintiff says that Hille told him that “the
DOC always could take 50% and the 25% contrary to the J.O.C.” Id. Despite
the facts that the plaintiff was sentenced in October 2013, and that the
amended Act 355 did not take effect until July 1, 2016, the plaintiff says that
Hille stated that the DOC had had the authority to supersede the court’s orders
for twenty years, and Hille refused to address the thirty-four months of missing
and illegally taken funds. Id.
5. Inmate Complaints and Other Correspondence
The plaintiff recounts that on November 7, 2016, he wrote two inmate
complaints about the money that had been taken. Id. He says that the
complaint examiner returned both complaints “on false pretense.” Id. The
plaintiff alleges that the institution complaint examiner, defendant Tonia Moon,
has continually returned his complaints for meritless reasons, contrary to DOC
policy. Id. at 6. He alleges that Moon used this tactic to expire the fourteen-day
time period to file a complaint, and to frustrate or discourage the filing of
complaints against staff. Id.
The plaintiff explains that he wrote to defendant Warden Brian Foster
about the missing funds four times. Id. The plaintiff says that Foster’s
secretary, defendant S. Staubb, responded by directing the plaintiff to
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Kampuis, “the actual one the issue was with.” Id. The plaintiff says that while
Warden Foster responded in January 2017, Foster failed to address the
embezzlement and harassment allegations. Id. The plaintiff alleges that under
Wis. Stat. §301.32(1), the warden is responsible for the collection of money to
pay the court-ordered obligations, yet Foster failed to collect the right amount
to pay the obligation. Id. The plaintiff also alleges that Foster failed to train
staff or monitor their behavior to ensure they collected obligations pursuant to
state law and DOC policy. Id.
The plaintiff indicates that after exhausting administrative remedies at
Waupun, he appealed to Madison about the missing funds. Id. Again, he says,
the examiner used §973.20(11) to assess the plaintiff’s complaint. Id. He alleges
that defendants Cindi O’Donnell and Brad Hompe denied his appeal, and did
not examine the “obvious facts.” Id. The plaintiff asserts that neither O’Donnell
nor Hompe addressed the missing funds from the release account or the money
taken for thirty-four months prior to the July 1, 2016 amendment to Act 355.
Id.
The plaintiff says that he wrote to the DAI financial manager twice to
attempt to correct the error and find the missing funds. Id. at 7. He indicates
that defendant Marc Clements, the assistant DAI financial manager,
responded, but failed to address the court-ordered judgment of conviction and
missing money. Id. Rather, the plaintiff says, Clements simply supplied the
plaintiff with a copy of the §973.20(11) amendment and Act 355, to include
§301.32(1), which the plaintiff asserts did not apply to his case. Id. The plaintiff
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argues that Clements failed to follow policy and investigate, instead relying on
Kamphuis’s statements. Id.
6. Request for Relief
For relief, the plaintiff seeks $25,000 from each defendant, $50,000 for
each claim, and $50,000 for each year the defendants allegedly violated the
state-imposed rights of due process and Wis. Stat. §973.05(4)(b). Id. at 8. He
also seeks $1,250,000 punitive damages and “to correct the misapplication of
well-established laws of the U.S. and State of Wisconsin under ex post facto,
due process.” Id.
C.

Discussion

The plaintiff appears to advance several claims. First, he claims that the
defendants unlawfully collected his trust account money, contrary to
Wisconsin state law and federal law. Second, he claims that the defendants
failed to give him a legal loan and to allow him to access his release account,
contrary to DOC regulations. Third, he claims that the defendants failed to
comply with DOC regulations in the processing of his inmate complaints.
1. First Claim: Defendants Allegedly Took Plaintiff’s Money
Contrary to Wisconsin State Law and Federal Law
The Fourteenth Amendment prohibits the state from depriving an
individual of life, liberty, or property without due process of law. U.S. Const.
amend. XVI. Courts first determine which interest is at stake, then determine
what process is due. Zinermon v. Burch, 494 U.S. 113, 128-32 (1990). Inmates
have a property interest in their prison trust account statement. See Campbell
v. Miller, 787 F.2d 217, 222 (7th Cir. 1986).
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A defendant may “cure” a deprivation of property that is “random and
unauthorized” with post-deprivation remedies. Id. Conduct is “random and
unauthorized” if it is unpredictable. Hamlin v. Vaudenberg, 95 F.3d 580, 584
(7th Cir. 1996). For instance, property confiscated contrary to DOC procedure
is “random and unauthorized” because the state cannot predict when or if a
deprivation will occur given that there were procedures in place that prison
staff were required to follow. See Leavell v. Ill. Dep’t of Nat. Res., 600 F.3d 798,
804-05 (7th Cir. 2010). In such situations, a post-deprivation remedy cures the
problem (the State could not have cured it pre-deprivation, because it could not
have predicted beforehand when a violation would occur). Zinermon, 494 U.S.
at 129 (“the State cannot be required constitutionally to do the impossible by
providing pre-deprivation process” for a random and unauthorized conduct.).
Wisconsin law has post-deprivation procedures to address random,
unauthorized deprivations of property by state officers and officials. See Singh
v. Gegare, No. 14-CV-837, 2015 WL 7430027, at *11 (E.D. Wis. Nov. 20, 2015),
aff’d, 651 F. App'x 551 (7th Cir. 2016), reh’g denied (June 21, 2016); see also
Patrick v. Wisconsin, No. 13-CV-231-WMC, 2014 WL 576153, at *3 (W.D. Wis.
Feb. 12, 2014). After an inmate files an offender complaint in the prison, he
can appeal an adverse decision to the state corrections complaint examiner,
which results in a decision from the secretary of the DOC. Wis. Admin. Code §§
DOC 310.04(3), 310.09. If an inmate disagrees with the secretary’s decision, he
can appeal to the Wisconsin state circuit court through a writ of certiorari. See
id.
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Wisconsin law also provides tort remedies for those whose property has
been converted or damaged by another. Wis. Stat. §§893.35 (action to recover
personal property after wrongful taking, conversion, or wrongful detention);
893.51 (action for damages resulting from wrongful taking, conversion, or
wrongful detention of personal property); and 893.52 (action for damages from
injury to property); see also Hamlin, 95 F.3d at 585 (inmate-complaint review
system, certiorari review under Wisconsin law, and Wisconsin tort remedies
against prison officials are adequate remedies for deprivation of good-time
credits); Wolf–Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir. 1983) (Wisconsin
tort remedies are adequate for deprivation of property resulting from sheriff’s
execution of outdated writ of restitution).
The plaintiff alleges that the defendants collected money from his trust
account in violation of Wisconsin state law; he is claiming that the defendants’
actions were “random and unauthorized.” See Gidarisingh v. Pollard, No. 12CV-455, 2013 WL 5349114, at *15 (E.D. Wis. Sept. 23, 2013), vacated in part
on other grounds, 571 F. App’x 467 (7th Cir. 2014). But as the court has
explained, the plaintiff has adequate post-deprivation procedures available to
him to address the issue. Because there is “process” available to him, the
plaintiff cannot show a deprivation of due process under the Fourteenth
Amendment. See Zinermon, 494 U.S. at 126 (“The constitutional violation
actionable under § 1983 is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process”); see also
Morris v. McKeever, 655 F. Supp. 388, 391 (W.D. Va. 1987)(“A suit based on a
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wrongful act that ignores the existence of a post-deprivation remedy is, in
effect, one that considers only partial or unfinished state action.”).
The plaintiff also claims that the defendants violated “ex post facto” when
they applied Act 355 to him. A law violates the ex post facto clause of the
United States Constitution only “if it punishes as criminal conduct an act that
was innocent when done, or makes more burdensome the punishment for a
crime after its commission.” O’Grady v. Libertyville, 304 F.3d 719, 723 (7th Cir.
2002); see also Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995). The
plaintiff doesn’t allege that Act 355 increased the amount of “applicable costs,
surcharges, victim witness surcharge and assessments” increased, only that it
changed the manner of collection. See id. at 506 n.3 (the focus of the ex post
facto inquiry is whether any change alters the definition of criminal conduct or
increases the penalty by which a crime is punishable). Even if the amount of
money had increased, it is not clear that such increase would have violated the
ex post facto clause. See United States v. Newman, 144 F.3d 531, 538-41 (7th
Cir. 1998) (a restitution order does not constitute criminal punishment to
support an ex post facto claim). 
Finally, to the extent that the plaintiff alleges that the defendants
violated Wisconsin state law, the court lacks subject matter jurisdiction over
the claims. See 28 U.S.C. §§1331 (federal question); 1332 (diversity of
citizenship). Federal courts may hear only certain kinds of cases. They may
hear cases alleging violations of federal statutes or the federal Constitution
(called “federal question” cases). They may also hear cases involving a plaintiff
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who resides in one state and a defendant who resides in another (called
“diversity”) cases. Federal courts do not have jurisdiction over state law claims
unless the case also involves a federal question or diversity. The plaintiff has
not alleged either of those things in this case. The court makes no
determination on the merits of any state law claim the plaintiff may have.
2. Second and Third Claims: Defendants Did Not Follow DOC
Regulations with Regard to Giving the Plaintiff a Legal Loan and
Processing his Inmate Complaints
Prison procedures themselves do not create substantive liberty or
property interests that are protected by due process, see Shango v. Jurich, 681
F.2d 1091, 1100-01 (7th Cir. 1982), and a violation of state laws or regulations
is not a basis for a federal civil rights suit, see Guajardo-Palma v. Martinson,
622 F.3d 801, 806 (7th Cir. 2010); Domka v. Portage Cty., Wis., 523 F.3d 776,
784 (7th Cir. 1984). A state’s inmate grievance procedures do not give rise to a
liberty interest protected by the due process clause. Owens v. Hinsley, 635
F.3d 950, 953-54 (7th Cir. 2011); Antonelli v. Sheahan, 81 F.3d 1422, 1430,32
(7th Cir. 1996).
The plaintiff’s allegations that the defendants denied his requests for a
legal loan and to access his release account, contrary to DOC policy, and that
they processed his inmate complaints in a manner that violated DOC policy, do
not state a claim under federal law.

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D.

Conclusion

The plaintiff has failed to state a due process claim for which this court
can grant relief, and the court lacks subject-matter jurisdiction over his state
law claims. Accordingly, the court must dismiss the case.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis). Dkt. No. 2.
The court DISMISSES THIS CASE WITHOUT PREJUDICE for failure to
state a due process claim and for lack of subject matter jurisdiction.
The court ORDERS the Secretary of the Wisconsin Department of
Corrections or his designee to collect from the plaintiff’s prison trust account
the $342.00 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. § 1915(b)(2). The Secretary or his designee
shall clearly identify payments by the case name and number.
The court will mail a copy of this order to the warden of the Waupun
Correctional Institution.
Dated in Milwaukee, Wisconsin this 26th day of April, 2017.

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