Smith v. Eckstein et al

Filing 8

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 6/13/2018. 5 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; agency having custody of plaintiff to collect $332.83 balance of filing fee from pla intiff's prison trust account under 28 USC 28 U.S.C. §1915(b)(2). Case DISMISSED under 28 USC §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; Clerk of Court to document that plaintiff has incurred "strike" under 28 U.S.C. §1915(g). (cc: all counsel, via mail to Antonio Smith and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTONIO MARQUES SMITH,
Plaintiff,
v.

Case No. 17-cv-669-pp

SCOTT ECKSTEIN, JOHN KIND,
JEAN LUTSEY, CAPTAIN BRANDT,
CATHY FRANCOIS, JON LITSCHER,
CATHY JESS, JIM SCHWOCHERT,
AND STEVE SCHMIDT,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 5), SCREENING
COMPLAINT UNDER 28 U.S.C. §1915A, AND DISMISSING CASE FOR
FAILURE TO STATE A CLAIM
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to
proceed without prepayment of the filing fee, dkt. no. 5. This order resolves the
motion and screens the complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
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

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conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On May 15, 2017, the court ordered the plaintiff to pay an initial partial
filing fee of $17.17. Dkt. No. 4. The plaintiff paid that fee on June 5, 2017.
Accordingly, the court will grant the plaintiff’s motion. The court will require
the plaintiff to pay the remainder of the filing fee over time as set forth 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 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. 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 state a claim 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 defendant was acting under color of state law. Buchanan2

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

The plaintiff is incarcerated at the Green Bay Correctional Institution
(GBCI). Dkt. No. 1 at 1. He has sued Warden Scott Eckstein, Security Director
John Kind, Health Service Manager Jean Lutsey, Captain Brandt, Unit
Manager Cathy Francois, Clinician Steve Schmidt, Wisconsin Department of
Corrections (DOC) Secretary Jon Litscher, DOC Deputy Secretary Cathy Jess
(sued as “Kathy Jess”) and DOC Administrator Jim Schwochert. Id. at 1-3.
The plaintiff alleges that on September 21, 2016, he was incarcerated at
the Waupun Correctional Institution; he says that he was being considered for
placement in administrative confinement, but that three people concluded “at
the time of the hearing no need to place” him into administrative confinement.
Id. at 3. On September 30, 2016, the plaintiff arrived GBCI. Id. at 4. When he
arrived, the transporting officer told Captain Stevens (the supervisor, who is
not a defendant) that the plaintiff was “general population status;” the plaintiff
says that was wearing green clothing. Id. Lieutenant Swiekatowski (who is not
a defendant) subsequently placed a temporary lock-up notice on the plaintiff

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pending administrative confinement review. Id. Defendant Warden Eckstein
ordered the temporary lock-up placement. Id. at 8.
The plaintiff asserts that the reason he was moved from Waupun to GBCI
was because an officer who was a “purported family member plaintiff’s alleged
victim” had placed an “SPN” on the plaintiff; he does not explain what an “SPN”
is. Id. at 4. He also says that while he was at Waupun, he was in general
population except for a brief time in segregation while he was awaiting a lateral
transfer to another institution. Id.
On November 30, 2016, defendant Captain Brandt submitted a
recommendation for administrative confinement which contained “the same
identical information that had already been considered by Waupun
Correctional Institution Administrative Confinement Review Committee
concluding that no administrative confinement placement was necessary.” Id.
Defendant Kind reviewed the plaintiff’s continuous placement under temporary
lock-up status and determined that he should continue in that status. Id.
Defendants Kind, Schmidt, Francois and Lutsey “sat in judgment of
plaintiff” and determined that he should be placed on administrative
confinement. Id. at 5. They used the same information that the staff at
Waupun Correctional Institution had used when that staff had determined that
the plaintiff did not need to be placed in administrative confinement. Id.
According to the plaintiff, the defendants’ decision didn’t comport with

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Wisconsin Administrative Code §DOC 308.04,1 because they lacked
information that the plaintiff’s continued presence in general population posed
a serious threat to life, property, self, staff, other inmates, or to the security or
orderly running of the institution. Id.
The plaintiff claims that the defendants subjected him to “double
jeopardy violation” and violated his right to due process, because he already
had had a full due process administrative confinement hearing at Waupun
Correctional Institution on September 21, 2016. Id. at 5-6. The plaintiff also
claims that the defendants violated his right to equal protection when they held
a second administrative confinement hearing based on the same information
considered at the Waupun hearing. Id. at 6.
The plaintiff asserts that the conditions of confinement on administrative
confinement were harsher than those of disciplinary segregation. Id. at 6-7. He
says he was totally isolated—he could not communicate with staff or receive
food or other items, and the room did not have a window. Id. The cell had no
mirror, so he could not shave or groom. Oddly, he says that he had no privacy
showering or using the toilet “due to the large picture windows.” Id. at 7. The
plaintiff alleges that the defendants conspired to have the plaintiff confined
there even though he committed no rule infraction or violated any policy. Id. at
8. For relief, he seeks monetary damages. Id. at 9.
“DOC 308.04 Administrative Confinement. (1) Administrative confinement is
an involuntary nonpunitive status for the segregated confinement of an inmate
whose continued presence in general population poses a serious threat to life,
property, self, staff, or other inmates, or to the security or orderly running of
the institution. Inmate misconduct shall be handled through the disciplinary
procedures.”
1

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B.

Analysis

“There are two steps to any procedural due process analysis. First, the
court must identify the protected property or liberty interest at stake. Second,
it must determine what process is due under the circumstances.” Charleston v.
Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013) (citing
Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)).
Temporary administrative confinement is an ordinary incident of prison
life, which is why the Seventh Circuit has held that “inmates have no liberty
interest in avoiding transfer to discretionary segregation—that is, segregation
imposed for administrative, protective, or investigative purposes.” Townsend v.
Fuchs, 522 F.3d 765, 771 (7th Cir. 2008); see also Lekas v. Briley, 405 F.3d
602, 609 (7th Cir. 2005) (“[I]n every state’s prison system, any member of the
general prison population is subject, without remedy, to assignment to
administrative segregation or protective custody at the sole discretion of prison
officials.”).
“[T]he requirements of due process are flexible and call for such
procedural protections as the particular situation demands.” Wilkinson v.
Austin, 545 U.S. 209, 224 (2005) (internal citations and quotation marks
omitted). Before transferring an inmate to, or retaining him in, a more
restrictive prison setting, prison officials must provide that inmate with
informal, nonadversarial due process. Westefer v. Neal, 682 F.3d 679, 684 (7th
Cir. 2012). This process requires notice of the reasons for the proposed
placement and adequate time for the inmate to prepare for a review. Id. The
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inmate also must have the opportunity to present his views to the official (or
officials) who will decide whether to transfer him to segregation. Id. at 685. But
informal due process does not require a “full-blown hearing,” the right to call
witnesses, a written decision of reasons for the transfer, or even an appeal
procedure. Id. at 685-86.
In this case, the plaintiff misses the mark on both prongs. First, he was
facing placement in administrative confinement, which doesn’t invoke a liberty
interest. Even if the plaintiff had an arguable liberty interest in avoiding
administrative confinement (i.e., if the defendants’ decision to place him in
administrative confinement was pretextual or if he faced permanent placement
in administrative confinement), he alleges only that the defendants violated his
right to due process because they subjected him to a “double jeopardy
violation” by determining that he should be placed in administrative
confinement at GBCI after staff at Waupun previously determined that he
shouldn’t. “[T]he Fifth Amendment's double jeopardy clause, which is limited to
criminal prosecutions, has no application to prison disciplinary proceedings.”
Rowold v. McBride, 973 F. Supp. 829, 834 (N.D. Ind. 1997) (quoting Hundley v.
McBride, 908 F.Supp. 601, 603 (N.D. Ind. 1995); see also Meeks v. McBride, 81
F.3d 717 (7th Cir. 1996). In other words, the plaintiff’s stated reason that the
second administrative confinement hearing violated his rights doesn’t support
a claim for relief.
The court concludes that the plaintiff has provided no arguable basis for
relief, having failed to make any rational argument in law or fact to support his
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claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992) (quoting
Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke
v. Williams, 490 U.S. 319 (1989)). For this reason, the court will dismiss the
complaint for failure to state a claim.
III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 5.
The court DISMISSES this case under 28 U.S.C. §§1915(e)(2)(B) and
1915A(b)(1) for failure to state a claim.
The court ORDERS that the Clerk of Court shall document that the
plaintiff has incurred a “strike” under 28 U.S.C. §1915(g).
The court ORDERS that the agency having custody of the prisoner shall
collect from his institution trust account the $332.83 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 the plaintiff's remaining balance, to the receiving institution.
The court will send a copy of this order to the warden of Green Bay
Correctional Institution.
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This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s 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. of App. P. 3, 4. This court may extend the deadline if a party timely
requests an extension and shows good cause or 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 this court to alter or
amend its 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. The court 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. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 13th day of June, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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