Carthage v. Radtke et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 6/14/2017 GRANTING 4 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff PERMITTED to proceed on claims of deprivation of due process, unconstitutional conditions of confinement, and deliberate indifference to Plaintiff's serious medical needs, each in violation of the Fourteenth Amendment. Copies of Plaintiff's Complaint and this Order to be electronically sent to the Wisconsin DOJ for service on Defendants, who shall file a responsive pleading in 60 days. The agency having custody of Plaintiff to collect balance of filing fee from Plaintiff's prison trust account. See Order for further details. (cc: all counsel, via mail to Charles E. Carthage, Jr. and Warden at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES E. CARTHAGE, JR.
Plaintiff,

v.

DYLAN RADTKE, MARC
CLEMENTS, WILLIAM POLLARD,
JIM SCHWOCHERT, and JOHN and
JANE DOES,

Case No. 17-CV-636-JPS

ORDER

Defendants.
Plaintiff, who is incarcerated at Dodge Correctional Institution
(“Dodge”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). This matter comes before the Court
on Plaintiff’s motion to proceed in forma pauperis. (Docket #4). Plaintiff has
been assessed and paid an initial partial filing fee of $43.43. 28 U.S.C. §
1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. Id. § 1915A(a). The Court must dismiss a complaint or
portion thereof if the prisoner has raised 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.
Id. § 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); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Gladney v. Pendelton Corr. Facility, 302 F.3d
773, 774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts; 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)); Christopher v. Buss, 384 F.3d 879, 881
(7th Cir. 2004). 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. The complaint
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.
In considering whether a complaint states a claim, courts should first
“identif[y] pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are wellPage 2 of 11

pleaded factual allegations, the Court 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: (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); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give Plaintiff’s 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)).
Plaintiff alleges that he was arrested and jailed at the Brown County
Jail (the “Jail”) in February 2013. (Docket #1 at 2). In or around March 2013,
Jail guards allegedly provided inadequate treatment for his medical needs,
including complaining about the time and expense required to transport
Plaintiff to dialysis treatment and ultimately causing Plaintiff to be taken
off of a kidney transplant waiting list. Id. at 2–3. Their complaints about
Plaintiff led to a petition in Brown County Circuit Court to transfer Plaintiff
to a state prison, where his care might be more easily provided. See id. The
officers also made allegedly false accusations that Plaintiff represented an
escape risk, which made it difficult for Jail officials to transport him to
medical appointments. Id.
The court petition was granted and Plaintiff was transferred to
Dodge. Id. at 3. Plaintiff believes that this was unlawful because he was a

Page 3 of 11

pretrial detainee, not a convicted prisoner. Id. He says was held at Dodge
until April 22, 2014. Id.1
Plaintiff alleges that he received further mistreatment while housed
at Dodge. Id. For instance, he claims he was wrongfully treated as a high
security or escape risk, which entailed Plaintiff being excessively shackled
and restrained with electrical shock monitors while being transported to
medical appointments. Id. at 3–5. He also asserts that several guards, named
here as John and Jane Does, harassed and ridiculed him. Id. Further,
Plaintiff alleges that he was subjected to baseless lockdowns and denied
access to the law library. Id. Additionally, he says that being designated a
security risk interfered with his healthcare, since providers were hesitant to
come near him, and he was even denied a kidney transplant evaluation
appointment. Id. at 4. Finally, he suggests in passing that prison guards
“gave [him] medication improperly,” though he does not say what
medication it was, or what was improper about their administration of the
medicine. See id. at 5.
As for Defendants Dylan Radtke (“Radtke”), Jim Schwochert
(“Schwochert”), William Pollard (“Pollard”), and Marc Clements
(“Clements”), all identified as current or former wardens or security
directors at Dodge, Plaintiff does not allege that any of them engaged in any
specific conduct alleged in the complaint. See id. at 3. Instead, Plaintiff

Confusingly, Plaintiff also alleges that he was incarcerated at Dodge for a
period of four years. (Docket #1 at 3). The Court presumes that Plaintiff was not
held in a pretrial posture for such a long period. More likely, Plaintiff was
eventually convicted and remained incarcerated at Dodge during his term of
imprisonment. On the present allegations, however, the Court must assume that
Plaintiff was a pretrial detainee and analyze his claims through that lens. If it is
true that he was a convicted prisoner for some or all of the relevant period, it could
impact the legal standards applicable to his claims, as indicated below.
1

Page 4 of 11

claims that each had personal knowledge of Plaintiff’s ongoing
maltreatment and, ostensibly, did not act to correct it. See id. at 3, 5.
Plaintiff’s allegations are closely related to those he has raised in
another action, Case No. 16-CV-326-JPS, also pending before this branch of
the Court. In that case, the Court has allowed him to proceed on a claim
against the Brown County Jail guards. The Court rejected Plaintiff’s attempt
to proceed simultaneously on claims arising at Dodge, as they are not
sufficiently related to what occurred at the Jail to be heard in the same
action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This case
represents Plaintiff’s effort to raise Dodge-related claims in a separate
action.
Plaintiff’s allegations largely suffice to cross the low threshold set by
screening. His claims all grow from his allegation that he was wrongfully
designated as an escape/security risk. First, according to him, this
designation was wrongfully and unjustifiably imposed, in violation of his
due process rights under the Fourteenth Amendment. Only transgressions
upon protected liberty interests can give rise to due process claims.
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A liberty interest may arise
from the Constitution itself, or it may arise from an interest created by state
laws or policies. Id.
Normally, inmates have no protectable liberty interest in a particular
security classification under the Due Process Clause, and Plaintiff points to
no Wisconsin state policy or regulation giving rise to such an interest. See
Kincaid v. Duckworth, 689 F.2d 702, 704 (7th Cir. 1982); Miller v. Henman, 804
F.2d 421, 423 (7th Cir. 1986). Yet Plaintiff’s claim may still proceed if the
restrictions placed on him imposed an atypical and significant hardship as
compared to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 223;
Page 5 of 11

Sandin v. Conner, 525 U.S. 472, 484 (1995); Earl v. Racine County Jail, 718 F.3d
689, 691 (7th Cir. 2013) (an inmate’s liberty interest “is affected only if the
more restrictive conditions are particularly harsh compared to ordinary
prison life or if he remains subject to those conditions for a significantly
long time”). Moreover, as a pretrial detainee, Plaintiff may not be subjected
to punishment, although he would have no claim if his security
classification was “reasonably related to a legitimate penological objective.”
Bell v. Wolfish, 441 U.S. 520, 535 (1979); Holly v. Wollfolk, 415 F.3d 678, 679–
80 (7th Cir. 2005).
Plaintiff’s allegations suggest that his escape-risk classification
subjected him to years of unnecessary shackling, restraints, and restrictions.
In light of the generous standard of review applied at screening, the Court
finds that his factual assertions reflect atypical and significant hardships in
relation to ordinary prison life. Moreover, Plaintiff alleges that his
designation was issued and maintained on the basis of lies by Brown
County Jail officials, and it does not appear that Plaintiff was afforded any
procedural protections at all prior to or after the imposition of this this
designation. Thus, the Court will permit this due process claim to proceed.
Next, Plaintiff asserts that his security designation led him to endure
unconstitutional conditions of confinement, in violation of the Fourteenth
Amendment, in the form of unnecessary shackling and restraints, verbal
abuse by prison guards, and needless strip searches and lockdowns. The
Fourteenth Amendment protects pretrial detainees from objectively serious
conditions of confinement that rise to the level of punishment. Board v.
Farnham, 394 F.3d 469, 477 (7th Cir. 2005). While Plaintiff’s restrictions, if
temporary, might not be actionable, here Plaintiff contends that they were
imposed throughout his four-year term of imprisonment. Because of this,
Page 6 of 11

the Court is constrained to conclude that Plaintiff has alleged sufficiently
serious deprivations. Furthermore, Plaintiff says that Defendants knew of
and were deliberately indifferent to the harm occasioned by these
deprivations, thereby completing his claim. Id. at 478. Of course, as with
Plaintiff’s due-process claim, the prison’s justifications for these restrictions
may overcome Plaintiff’s constitutional rights, see id. at 477, but that cannot
be decided at this early stage. The Court will, therefore, allow this claim to
proceed.2
Third, Plaintiff claims that his security classification interfered with
his First Amendment rights because it caused disruption in his access to
counsel and the prison law library. For such a claim, Plaintiff must show (1)
that prison officials failed “to assist inmates in the preparation and filing of
meaningful legal papers by providing [them] with adequate law libraries
or adequate assistance from persons trained in the law,” Bounds v. Smith,
430 U.S. 817, 828 (1977), and (2) that the prison officials’ conduct caused
some detriment to his pending litigation, Jenkins v. Lane, 977 F.2d 266, 268
(7th Cir. 1992). The prejudice prong can be satisfied where the prisoner’s
denial of access to legal materials and counsel was direct and continuous,
rather than minor and indirect. Id. However, this is a strict standard; a
“substantial and continuous” limitation only arises where there exists a
“restriction on counsel or legal materials that completely prevents the

Although it appears that Plaintiff pleads his claim under the Eighth
Amendment, it is the Fourteenth Amendment that protects pretrial detainees from
unconstitutional conditions of confinement. Cavalieri v. Shepard, 321 F.3d 616, 620
(7th Cir. 2003). If, as the Court suspects, Plaintiff was a convicted prisoner during
some portion of his four-year term of confinement, the Court’s analysis would be
properly sited in the Eighth Amendment, and Plaintiff would only state a claim if
Defendants were deliberately indifferent to a serious deprivation of life’s
necessities. See Cunningham v. Eyman, 17 F. App’x 449, 453–54 (7th Cir. 2001).
2

Page 7 of 11

prisoner, or a person acting in the prisoner’s behalf, from performing
preliminary legal research.” Id. at 269.
Here, based on the contents and cogency of his complaint, it is clear
that Plaintiff was afforded sufficient resources to conduct preliminary
research into the pleading requirements for his suit. Id.; Brooks v. Buscher, 62
F.3d 176, 180 (7th Cir. 1995). This means that he must plead that some
specific legal efforts suffered identifiable prejudice, which he has not done
here. See Gentry v. Duckworth, 65 F.3d 555, 559 (7th Cir. 1995) (actionable
prejudice is not merely any delay, but “actual substantial prejudice to
specific litigation”). Instead, he offers only generalizations of denial of
access to legal materials and aid. As a result, this claim may not proceed.
Finally, Plaintiff asserts that his escape-risk designation and
associated stigma led to a deprivation of care for his serious medical needs,
in violation of the Fourteenth Amendment, in the form of lack of access to
a kidney transplant evaluation and improper dispensing of medication. A
deliberate indifference claim requires: (1) an objectively serious medical
condition and (2) that the defendants knew of the condition and were
deliberately indifferent in treating it. Burton v. Downey, 805 F.3d 776, 784
(7th Cir. 2015).3 Both requirements are met here, as Plaintiff alleges that
Defendants maintained restrictions on him despite knowing that it resulted
in a denial of a kidney transplant evaluation and knowing that it interfered
with him receiving certain medications. Plaintiff will be permitted to
proceed on this claim.

Again, Plaintiff’s rights as a pretrial detainee are protected by the
Fourteenth Amendment, not the Eighth, but to the extent he was also a convicted
prisoner for some period of his incarceration, the analysis is functionally identical
for Eighth Amendment medical deliberate indifference claims. Burton, 805 F.3d at
784; Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013).
3

Page 8 of 11

In closing, the Court notes that it will permit these claims to proceed
against all Defendants at this time because it is unclear from the complaint
precisely who was the security director and who was the warden during
the period of Plaintiff’s incarceration, and it is also unclear which claims
implicate the Doe Defendants. Plaintiff will be required to identify the Doe
Defendants in discovery.
Further, although the named Defendants, as supervisory prison
officials, may not have participated personally in some of the alleged
misconduct, this is not fatal to Plaintiff’s claims. Section 1983 creates a cause
of action based on personal liability and predicated upon fault; thus, “to be
liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Vill. of Oak Park, 430
F.3d 809, 810 (7th Cir. 2005). Because personal involvement is required, the
respondeat superior doctrine—supervisor liability—is not applicable to
Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Nevertheless, liability may attach when a prison official consents to,
facilitates, or turns a blind eye toward another’s conduct. Brokaw v. Mercer
County, 235 F.3d 1000, 1012 (7th Cir. 2000); Gentry, 65 F.3d at 561. In such
cases, the prison official must act “either knowingly or with deliberate,
reckless indifference.” Jones v. City of Chicago, 856 F.2d 985, 992–93 (7th Cir.
1988). Here, Plaintiff has sufficiently alleged that the named Defendants
knew of and disregarded the ongoing deprivations visited upon him
throughout his term of imprisonment.
For the reasons stated above, Plaintiff will be permitted to proceed
on the following claims against all Defendants: (1) deprivation of due
process, in violation of the Fourteenth Amendment; (2) unconstitutional
conditions of confinement, in violation of the Fourteenth Amendment; and
Page 9 of 11

(3) deliberate indifference to Plaintiff’s serious medical needs, in violation
of the Fourteenth Amendment. 28 U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #4) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this order will be electronically sent to
the Wisconsin Department of Justice for service on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the complaint within sixty
(60) days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that the agency having custody of the
prisoner shall collect from his institution trust account the balance of the
filing fee by collecting monthly payments from 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 payments shall be clearly
identified by the case name and number assigned to this action;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Program is in effect at Dodge Correctional Institution,
Page 10 of 11

Green Bay Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility and, therefore, if Plaintiff is no longer
incarcerated at any of these institutions, he will be required 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
Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action 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.
Dated at Milwaukee, Wisconsin, this 14th day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 11 of 11