Boyd v. Boughton et al

Filing 48

ORDER signed by Judge Lynn Adelman on 8/29/18. IT IS ORDERED that Larry Primmer is DISMISSED from this case with prejudice. IT IS ORDERED that plaintiff's motion for partial summary judgment 35 is DENIED; defendant's motion for summary judgment 41 is GRANTED; and this case is DISMISSED. The Clerk of Court shall enter judgment accordingly. (cc: all counsel, plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEMETRIUS M. BOYD,
Plaintiff,
v.

Case No. 17-C-396

LEBBEUS BROWN, et al.,
Defendants.
DECISION AND ORDER
Plaintiff Demetrius M. Brown, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983, alleging that defendants violated his
civil rights. Docket Nos. 1 and 26. On July 19, 2017, I screened the complaint and
allowed plaintiff to proceed with two claims: (1) an Eighth Amendment claim that Larry
Primmer placed plaintiff in an unsanitary cell with no clothes or personal items for 24
hours; and (2) a Fourteenth Amendment claim that Lebbeus Brown kept plaintiff in
Temporary Lock Up (“TLU”) past May 8, 2016, the date when his disciplinary separation
sentence was complete. Docket No. 25 at 4-5; see also Docket No. 30.
The parties filed cross-motions for summary judgment. Docket Nos. 35 and 41.
On April 2, 2018, plaintiff explained that he no longer seeks to pursue his Eighth
Amendment conditions of confinement claim against Primmer. Docket No. 46 at 3.
Because defendants have conducted discovery on the issue and have spent time and
resources fully briefing the matter, I will dismiss Primmer from this case with prejudice.

I.

THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT

a. Facts
Plaintiff is an inmate at the Wisconsin Secure Program Facility (“WSPF”). Docket
No. 43, ¶ 1. Defendant Lebbeus Brown is a Correctional Officer at WSPF. Id., ¶¶ 2-3.
The relevant facts and dates in this case are difficult to discern. Plaintiff’s
allegations from his complaint (Docket Nos. 1 and 26) differ from the ones in his briefing
materials (Docket Nos. 35 and 46), and plaintiff did not attach any documents that I could
review to determine when he received his conduct reports, when he received hearings
for the conduct reports, how long his sentences were for each conduct report, and when
he was supposed to be released to general population. For this reason, I have taken
facts primarily from defendants’ proposed findings of fact. Docket No. 43. To a lesser
extent, I have taken facts from plaintiff’s motion for partial summary judgment (Docket
No. 35).
On January 26, 2016, plaintiff received a sentence of 120 days disciplinary
separation for Conduct Report (“CR”) #2673326. Docket No. 35 at 2, ¶ 2. Disciplinary
separation is “punitive status” in the Segregation Unit and inmates can progress from
Step 1 (which has the fewest privileges) to Step 3 (which has the most privileges).
Docket No. 43, ¶ 26; see also Docket No. 45-3 at 21-22. Plaintiff states that he should
have been released from disciplinary separation on or around March 28, 2016, pursuant
the Wisconsin Department of Corrections (“DOC”) “half-time” policy which allows inmates
to only serve “half of their disciplinary separation sentence as long as the prisoner does
not receive additional disciplinary separation time for additional and unrelated dept’ of
corr’s rule violations.” Docket No. 35 at 2, ¶¶ 3-4. Plaintiff does not attach a copy of the
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“half-time” policy but the Inmate Handbook provided by defendant (Docket No. 45-3)
states “inmates may earn time off their disciplinary separation sanction for positive
behavior.” See Docket No. 45-3 at 21.
Plaintiff states that while he was in disciplinary separation for CR #2673326, he
received a second conduct report (CR #2732072) for an incident that occurred around
March 8 or 9, 2016. Docket No. 35 at 2, ¶ 5. Plaintiff was sentenced to an additional 180
days of disciplinary separation for his second conduct report. Id., at 2-3, ¶¶ 5-7.
According to plaintiff, his new release date from disciplinary separation should have been
on or around June 30, 2016 or July 1, 2016. 1 Id. at 4, ¶ 2.
On June 16, 2016 (while plaintiff was still in disciplinary separation for his first two
conduct reports), plaintiff went to the Alpha Unit “law library,” which is a holding cell that
was converted into a space where inmates can review their legal materials and conduct
legal research. Docket No. 43, ¶¶ 4-6. Several correctional officers told plaintiff to exit
the law library cell because Dr. Hoem had directed that plaintiff be placed in Clinical
Observation for making threats of self-harm. Id.; see also Docket No. 44-3. Plaintiff
states that he “fail to comply with Capt. Primmer’s orders to allow security staff too [sic]
remove [plaintiff] from [the] law library and escort [him] to Alpha Cell #302 so [he] could
be placed on observation status.” Docket No. 1, ¶ 5; see Docket No. 43, ¶¶ 7-11; see
also Docket No. 44-1. As a result, Primmer had to assemble “a cell extraction team” to

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Plaintiff alleged in his complaint that he should have been released on or around May
8, 2016. See Docket No. 1 at 2. Plaintiff also alleges, in a different part of his brief, that
he should have been released on or around May 26, 2018. See Docket No. 35 at 3, ¶ 7.
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remove plaintiff from the cell. Docket No. 43, ¶¶ 9-11. Later that day, plaintiff received a
third conduct report (CR #2821592) for disobeying orders. See Docket No. 44-4.
On June 30, 2016, plaintiff was removed from disciplinary separation and placed
in TLU pending a disciplinary hearing for his third conduct report. Docket No. 43, ¶ 30;
see also Docket No. 45-1. TLU is located in the Segregation Unit but is “non-punitive
status” because inmates receive property and privileges consistent with inmates on Step
3. Docket No. 43, ¶ 26; see also Docket No. 45-3 at 23. Plaintiff received a hearing for
his third conduct report on July 11, 2016 and was sentenced to 90 days disciplinary
separation. Docket No. 43, ¶¶ 31-32. That same day, plaintiff was removed from TLU
and placed back in disciplinary separation. Id., ¶ 33.
b. Analysis
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgement as a matter of law.” Fed. R. Civ. P. 56(c); Ames v. Home Depot U.S.A., Inc.,
629 F.3d 665, 668 (7th Cir. 2011). The movant bears the burden of establishing that
there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). I grant summary judgment when no reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To prevail on a claim under 42 U.S.C. § 1983, plaintiff must show 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.

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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 from deprivation of life, liberty,
or property without due process of law. U. S. Const. amend. XIV. “Those who seek to
invoke its procedural protection must establish that one of those interests is at stake.”
Wilkerson v. Austin, 545 U.S. 209, 221 (2005). A prisoner's placement in disciplinary
separation may create a liberty interest “if the length of segregated confinement is
substantial and the record reveals that the conditions of confinement are unusually
harsh.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). “In the
absence of a protected liberty or property interest, “the state is free to use any
procedures it chooses, or no procedures at all.” Gillis v. Raemisch, No. 10-CV-509BBC, 2011 WL 116828, at *2 (W.D. Wis. Jan. 13, 2011), aff'd, 431 F. App'x 489 (7th Cir.
2011)
Segregated confinement for less than six months usually does not implicate a
liberty interest. Marion, 559 F.3d at 698. Nevertheless, trials courts do not dismiss an
action based only on the pleadings. Id.

Instead, they conduct “additional factual

development” regarding the inmate’s conditions of confinement. Id. As the Seventh
Circuit has noted, “both the duration and the conditions of segregation must be
considered in the due process analysis; if the conditions of segregation [are]
significantly harsher than those in the normal prison environment, ‘then a year of
[segregation] might count as deprivation of liberty where a few days or even weeks
might not.” Id. (quoting Bryan v. Duckworth, 88 F.3d 431, 433 (7th Cir. 1996)).

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While screening plaintiff’s complaint, I noted that plaintiff’s transfer from
disciplinary separation to TLU likely did not implicate a liberty interest because TLU is a
less restrictive form of confinement than disciplinary separation. Nevertheless, I allowed
the claim to proceed to conduct additional factual development regarding the condition
of confinement in TLU. Plaintiff now appears to slightly change his Fourteenth
Amendment claim and asks me to “recognize [his] time spent on TLU from 3/28/2016 up
to 6/11/2016.” Docket No. 46 at 3.
I will grant defendant’s motion for summary judgment and will dismiss this case.
First, the record establishes that plaintiff was only in TLU for 11 days, between June 30,
2016 and July 11, 2016, far shorter than the 21 days allowed under Wis. Admin. Code §
DAI 303.00.03. See Docket No. 45-1. Plaintiff appears to use “disciplinary separation”
and TLU interchangeably, but there is a notable difference, namely that TLU is nonpunitive status where inmates receive more privileges than in disciplinary separation.
Further, plaintiff has not alleged facts showing that the conditions of his
confinement (between 3/28/2016 and 6/11/2016) were significantly harsher than those
in the normal prison environment. Plaintiff alleges that he did not have telephone calls,
recreation, electronics, and out of cell privileges (Docket No. 35 at 6, ¶ 1) but these
deprivations are nowhere near the sort of conditions required to implicate a liberty
interest. See Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005)) (concluding that
plaintiff implicated a liberty interest when he alleged that he was deprived of virtually all
sensory stimuli or human contact for an indefinite period of time); see Townsend v.
Cooper, 759 F.3d 678, 685-87 (7th Cir. 2014)(concluding that plaintiff implicated a
liberty interest when he alleged that he spent “a period of weeks completely naked, with
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no clothing, shoes, bedding, linens, mattress, mail or legal materials;”)) see also
Mathews v. Brown, No. 16-CV-650-SLC, 2017 WL 3034368, at *7 (W.D. Wis. July 17,
2017)(concluding that plaintiff did not implicate a liberty interest when he alleged that he
“was denied visits, phone calls, and certain publications.”)
Based on the evidence on the record, no reasonable factfinder could conclude
that plaintiff’s placement in TLU and/or disciplinary separation implicated a liberty
interest. Therefore, I will grant defendants’ motion for summary judgment and will
dismiss the case. Obriecht v. Raemisch, No. 10-CV-221-JPS, 2013 WL 1288070, at *16
(E.D. Wis. Mar. 26, 2013), aff'd, 565 F. App'x 535 (7th Cir. 2014)(granting defendant’s
motion for summary judgment because plaintiff “presented no evidence of conditions
that would suggest a liberty interest had been infringed.”)
III. CONCLUSION
For the reasons discussed above, IT IS ORDERED that Larry Primmer is
DISMISSED from this case with prejudice.
IT IS ORDERED that plaintiff’s motion for partial summary judgment (Docket No.
35) is DENIED; defendant’s motion for summary judgment (Docket No. 41) is
GRANTED; and this case is DISMISSED. The Clerk of Court shall enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal
this decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Fed. R. App. P. 3, 4. I can
extend this deadline if a party timely requests an extension and shows good cause or

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excusable neglect for not being able to meet the 30-day deadline. See Fed. R. App. P.
4(a)(5)(A).
Under certain circumstances, a party may ask me to alter or amend my judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. I cannot extend
this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more than one
year after the entry of the judgment. I cannot extend this deadline. See Fed. R. Civ. P.
6(b)(2).
I expect parties to closely review all applicable rules and determine, what, if any,
further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 29th day of August, 2018.

s/Lynn Adelman____________
LYNN ADELMAN
District Judge

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