Little v. Gens et al
Filing
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ORDER signed by Judge Pamela Pepper on 5/14/2018. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED; agency having custody of plaintiff to collect $348.55 balance of filing fee from plaintiff's pr ison trust account under 28 USC §1915(b)(2). Defendants Robert Humphrey, Captain Berg (John Doe #1), Captain Campbell (John Doe #2) DISMISSED. Defendant Gens to file responsive pleading within 60 days. Parties may not begin discovery until after the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Antuan Little and Warden at Waupun Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTUAN VALENTINO LITTLE,
Plaintiff,
v.
Case No. 17-cv-290-pp
THOMAS GENS,
ROBERT HUMPHREY,
CAPTAIN BERG, and
CAPTAIN CAMPBELL,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
On February 28, 2017, the plaintiff filed a complaint under 42 U.S.C.
§1983, alleging that the defendants had violated his constitutional rights. Dkt.
No. 1. The plaintiff also filed a motion for leave to proceed without prepayment
of the filing fee. Dkt. No. 2. This decision resolves the plaintiff’s motion and
screens his complaint.
I.
Motion for Leave to Proceed without Prepayment of the Filing Fee
(Dkt. No. 2)
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
conditions. One of those conditions is that the plaintiff must pay an initial
partial filing fee. 28 U.S.C. §1915(b).
On March 3, 2017, U.S. Magistrate Judge Nancy Joseph (the judge
assigned to the case at that time) ordered the plaintiff to pay an initial partial
filing fee of $1.45. Dkt. No. 5. On March 7, 2017, the clerk’s office reassigned
the case to this court. On May 15, 2017, the court received from the plaintiff
the initial partial filing fee. Accordingly, the court will grant the plaintiff’s
motion to proceed without prepayment of the filing fee, and will require him to
pay the remainder of the filing fee over time as explained 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
if the plaintiff raises claims that are legally “frivolous, 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 claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed 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;
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and 2) the defendant was acting under color of state law. Buchanan-Moore v.
Cty. 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 gives a pro se plaintiff’s 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)).
A.
The Plaintiff’s Allegations
During the relevant period, the plaintiff was an inmate at Kettle Moraine
Correctional Institution; he worked as a first shift unit 6 bathroom worker.
Dkt. No. 1 at 2-3. The defendants all were employees of the Wisconsin
Department of Corrections and worked at Kettle Moraine. Id.
On April 4, 2015, defendant Sgt. Gens was the third shift sergeant
working on unit 6. Id. at 3. At approximately 5:50 a.m., the plaintiff, who is
Muslim, headed to the unit 6 bathroom to perform Wudū. Id. at 3. Wudū is a
purification ritual performed before prayer; it is practiced by Muslims and is a
recognized religious practice at Kettle Moraine. Id.
The Kettle Moraine handbook states, “after dayroom closes at night until
6:00 a.m., the bathroom will be open for toilet and/or urinal use only. Sinks
may be used for hand washing only. All other personal hygiene must be
completed prior to the dayroom closing. Exceptions will be made for early work
duty or religious reasons.” Id.
As the plaintiff got to the bathroom door, Gens asked him why he was
using the bathroom before 6:00 a.m. Id. The plaintiff gave two reasons: he
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needed to perform Wudū and he needed to get ready for work. Id. Gens told the
plaintiff that he was too late to perform Wudū; he said that the plaintiff would
need to get up before Fajr1 prayer, which started at 5:06 a.m., to perform
Wudū. Id. at 4. He also told the plaintiff that “bathroom work duty is not early
morning work duty.” Id.
The plaintiff responded by explaining to Gen the KMCI policy allowing an
inmate to use a bathroom prior to 6:00 a.m. for work duty or religious reasons.
Id. He also showed Gens an inmate complaint examiner (“ICE”) report that he
had received in response to an inmate complaint the plaintiff had filed in 2013.
Id. The ICE report affirmed that Muslims were allowed to get up up to thirty
minutes before sunrise to perform Wudū. Id. The plaintiff asserts that sunrise
was at 6:28 a.m. on April 4, 2015, so he had until 5:58 a.m. to perform Wudū.
Id.
Gens ordered the plaintiff to return to his cell. Id. Because Muslims are
required to perform Wudū prayer, the plaintiff went into the unit 6 bathroom to
do so. Id. When the plaintiff came out of the bathroom, Gens told the him that
Gens had written the plaintiff an adult conduct report for disobeying orders
and disruptive conduct. Id. Gens asked if the plaintiff wanted to take a
summary disposition of losing five days of common area privileges; the plaintiff
refused, and asked to see a supervisor (informally known as a white shirt). Id.
The plaintiff believed that Gens had written him a conduct report to harass him
and to retaliate against him for practicing his religion. Id. The plaintiff was not
1
The Fajr prayer is the dawn prayer of the five daily prayers.
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given the opportunity to speak with a white shirt, but he was allowed to make a
brief statement to be written up by another sergeant. Id. The plaintiff again
provided the information from the ICE report, as well as the ICE report number
so that the hearing officer could find it, and could review the policy. Id.
On April 4, 2015, defendant Captain Berg2 was the hearing officer who
reviewed the plaintiff’s conduct report. Id. Berg found the plaintiff guilty of
disobeying orders and disruptive conduct. Id. at 5. Berg issued the plaintiff a
disposition of five days of loss of common area privileges. Id.
The plaintiff asserts that from April 4 through April 13, 2015, he tried to
resolve the issue with Captains Berg, Hoffman, Campbell and Lieutenant
Nelson. Id. The captains told the plaintiff they would get back to him on the
issue, and Nelson told him, “Give me some time and I’ll handle it.” Id. During
that same time, the plaintiff continued to perform Wudū; he states that no
other staff members interfered with his attempts to do so. Id. (It is unclear
whether during that time the plaintiff attempted to perform Wudū before or
after Fjar prayer.)
On April 13, 2015, Gens again was working unit 6. Id. At approximately
4:51 a.m., the plaintiff approached the unit bathroom to perform Wudū; Gens
tried to stop him. Id. Gens told the plaintiff he was too late to perform Wudū;
he reiterated that the plaintiff needed to get up before Fjar prayer to perform
Wudū (the plaintiff asserts that on that date Fjar prayer started at 4:50 a.m.).
Id. The plaintiff told Gens that he had up until thirty minutes before sunrise to
The plaintiff identifies Captain Berg as John Doe #1 in the caption of his
complaint. It appears he did so because he did not know Berg’s first name.
2
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get up; then, as he had before, he proceeded to the bathroom to perform Wudū.
Id. When the plaintiff came out, Gens gave the plaintiff another conduct report
for disobeying orders. Id. This time, he asked if the plaintiff wanted to take a
summary disposition of seven days’ loss of common area privileges; the plaintiff
declined, and asked Gens to call a white shirt. Id. The plaintiff says, however,
that there was no white shirt available to speak with him. Id. That same day,
defendant Captain Campbell3 found the plaintiff guilty of disobeying orders and
gave him a disposition of seven days loss of common area. Id.
On April 13, 2015, the plaintiff appealed the first conduct report to
defendant Warden Robert Humphrey. Id. at 6. On April 14, 2015, he appealed
the second conduct report. Id. On April 20, 2015, the plaintiff filed a complaint
about Gens’s conduct. Id. The complaint examiner rejected the plaintiff’s
complaint as premature, noting that the plaintiff had not identified any
procedural errors. Id. The plaintiff appealed the rejection to Humphrey on April
30, 2015. Id. at 7. Humphrey affirmed the rejection on April 30, 2015, and
affirmed the findings of guilt on the conduct reports on May 31, 2015. Id.
B.
The Court’s Analysis
Only prison officials who are personally responsible for a constitutional
violation can be held liable under §1983. Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009). The person whom the plaintiff alleges directly violated
The plaintiff identifies Captain Campbell as John Doe #2 in the caption of his
complaint. It appears he did so because he did not know Campbell’s first name.
3
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his constitutional rights is Gens. He says that Gens is the one who told him he
was too late to perform Wudū, and Gens is the one who issued conduct reports
against him when the plaintiff went ahead into the bathroom and performed
his ritual wash anyway. Prisoners retain the right to freely exercise their
religion, although the right is not unlimited. Ortiz v. Downey, 561 F.3d 664,
669 (7th Cir. 2009) (citations omitted). A prison official may restrict an inmate’s
“ability to practice his faith so long as the restriction is reasonably related to a
legitimate penological interest.” Id. (citing Turner v. Safley, 482 U.S. 78, 89
(1987)). “Legitimate penological interests include security and economic
concerns.” Id. (citing Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991)).
The plaintiff has alleged that Gens punished him for exercising his right
to perform Wudū. Taking his allegations as true (which the court must at the
screening stage), Gens appears to have had no legitimate penological interest
for doing so. Even though the KMCI handbook made an exception to the
bathroom hours for religious purposes, Gens told the plaintiff twice that he
couldn’t use the restroom to perform Wudū unless he did so before Fjar
prayers. These allegations are sufficient to allow the plaintiff to proceed on a
First Amendment free exercise claim against Gens.
It is not clear from the plaintiff’s allegations whether Gens required the
plaintiff to perform Wudū prior to Fjar prayer because there was an institution
policy to that effect, or whether Gens imposed this requirement on his own. At
this early stage, the court will allow the plaintiff to proceed against Gens in
both his individual and official capacities. See Hill v. Shelander, 924 F.2d
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1370, 1372 (7th Cir. 1991) (explaining that an official capacity suit is
appropriate when a defendant is executing or implementing the official policy of
the government entity).
The court will not, however, allow the plaintiff to proceed on a First
Amendment retaliation claim against Gens. To establish a claim of retaliation,
the plaintiff must allege facts indicating that he engaged in a protected activity,
that he suffered a deprivation likely to prevent future protected activities, and
that there was a causal connection between the two. See Watkins v. Kasper,
599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009). The Seventh Circuit Court of Appeals has explained that “even if a
defendant was ‘brimming over with unconstitutional wrath’ against a §1983
plaintiff, that plaintiff cannot prevail unless he or she establishes that the
challenged action would not have occurred ‘but for’ the constitutionally
protected conduct.” Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002)
(citing Button v. Harden, 814 F.2d 382, 383 (7th Cir.1987)).
The plaintiff alleges that Gens gave him a direct order to return to his
cell, and admits that he refused to comply with the order and instead
proceeded to the bathroom to perform Wudū. Even under the plaintiff’s own
version of the facts, Gens wrote the plaintiff a conduct report for disobeying his
orders, not for practicing his religion. Given that the plaintiff admits he
disobeyed a direct order from Gens to return to his cell, he cannot establish
that the only reason Gens wrote the conduct report was because the plaintiff
was practicing his religion.
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Nor will the court allow the plaintiff to proceed on an Eighth Amendment
claim against Gens. The Eighth Amendment does not protect inmates from
punishment—it protects them from cruel and unusual punishment. The
Supreme Court has found that punishment is “cruel and unusual” when it
“involve[s] the unnecessary and wanton infliction of pain,” Rhodes v. Chapman,
452 U.S. 337, 345 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)),
or when the punishments are “grossly disproportionate to the severity of the
crime,” id. (citing Coker v. Georgia, 422 U.S. 584, 592 (1977). The plaintiff
concedes that he twice disobeyed Gens’ instructions that he could not use the
restroom to perform Wudū, and the punishment he received was the loss of his
common area privileges for a total of twelve days for the two violations. Even
viewing the facts in the light most favorable to the plaintiff, no court would
construe that punishment as cruel or unusual under the applicable case law
from the Supreme Court and the Seventh Circuit.
This leaves the plaintiff’s claims against Humphrey, Berg and Campbell.
The plaintiff alleges that Berg and Campbell, who conducted the hearings on
the conduct reports, “had adequate time, information, authority and duty to
protect plaintiff,” but instead that they supported Gens’s “unjust harassment
and retaliatory conduct.” Dkt. No. 1 at 7. 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. Ill. Dept. of Nat. Res., 347 F.3d 1014, 1039 (7th Cir.
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2003)). The plaintiff does not allege that Berg or Campbell denied him his right
to practice his religion—he alleges only that they should have protected him
from Gens’ actions. “”Public officials do not have a free-floating obligation to
put things to rights . . . .” Burks, 555 F.3d at 595. It was not Berg’s job, nor
Campbell’s, to “rescue” the plaintiff from Gens’ alleged violations of the
plaintiff’s right to exercise his religion. It was their job to decide whether the
plaintiff, in disobeying Gens’ directions, violated institution policy. They did
their jobs, and they cannot be held liable under §1983 for doing so.
The plaintiff did not mention the Fourteenth Amendment or the due
process clause, but the court notes that he cannot state a claim against Berg
or Campbell under that clause, either. The Constitution does not guarantee
prisoners a specific outcome in a disciplinary hearing (in other words, the
plaintiff cannot use a lawsuit under §1983 as a way of appealing an adverse
decision in a disciplinary hearing); instead, it guarantees prisoners certain
procedural protections when state action implicates a constitutionally
protected interest in life, liberty, or property. Lekas v. Briley, 405 F.3d 602, 607
(7th Cir. 2005). The first step in determining whether a prisoner is entitled to
those procedural protections is to evaluate whether a state actor has interfered
with a protected liberty interest. Id.
Here, the plaintiff received only five and seven days of loss of common
area privileges. This relatively minor loss of privileges does not “impose[]
atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. (quoting Sandin v. Conner, 515 U.S. 472, 486
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(1995)). As a result, the plaintiff was not entitled to the procedural protections
of the Due Process Clause. And even though he wasn’t entitled to them, it
appears that he received those procedural protections—he had hearings before
the sanctions were issued. The plaintiff has not stated a claim against Berg or
Campbell under the Fourteenth Amendment.
Nor will the court allow the plaintiff to proceed against Berg and
Campbell under the Eighth Amendment. Again, the plaintiff has presented no
evidence that the loss of common area privileges for twelve days constituted the
unnecessary and wanton infliction of pain, or that it was grossly
disproportionate to the conduct violation.
The court will dismiss Berg and Campbell as defendants.
Finally, the court will not allow the plaintiff to proceed on First, Eighth or
Fourteenth Amendment claims against Warden Humphrey, for the same
reasons it provided above for Berg and Campbell. The plaintiff alleges only that
Humphrey affirmed Berg’s and Campbell’s decisions. The plaintiff’s allegations
against Humphrey are even further removed from the actual alleged
constitutional violations than his allegations against Berg and Campbell.
Nor can Humphrey be held liable for any supervisory authority he had
over Gens, Berg and Campbell. In order for a supervisor to be liable for
violating someone’s constitutional rights under §1983, that supervisor must be
“personally responsible for the deprivation of the constitutional right.”
Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). To show that a
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supervisor was “personally responsible” for depriving the plaintiff of the
constitutional right, the plaintiff must show that the supervisor “[knew] about
the conduct and facilitat[ed] it, approve[d] it, condone[d] it, or turn[ed] a blind
eye for fear of what [the supervisor] might see.” Id. (quoting Jones v. City of
Chi., 856 F.2d 985, 992-93 (7th Cir. 1988)).
The plaintiff’s allegations against Humphrey are insufficient to state a
claim against Humphrey, because they do not indicate that Humphrey was
directly involved in or responsible for the alleged denial of the plaintiff’s First
Amendment rights. The court will dismiss Humphrey as a defendant.
III.
Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court DISMISSES Robert Humphrey, Captain Berg (John Doe #1),
and Captain Campbell (John Doe #2) as defendants.
The court ORDERS that, under 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 to the Wisconsin
Department of Justice for service on defendant Thomas Gens.
The court ORDERS that, under the informal service agreement between
the Wisconsin Department of Justice and this court, defendant Thomas Gens
shall file a responsive pleading to the complaint within sixty days of receiving
electronic notice of this order.
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The court ORDERS that the agency having custody of the prisoner shall
collect from his institution trust account the $348.55 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 agency shall clearly identify the payments by the case name
and number. If the plaintiff is transferred to another institution—county, state
or federal—the transferring institution shall forward a copy of this order, along
with plaintiff's remaining balance, to the receiving institution.
The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the Court.4 If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, he will be required to submit all
correspondence and legal material to:
The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
4
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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that if he does not file documents or take
other court-ordered actions by the deadlines the court imposes, the court may
dismiss his case 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 14th day of May, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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