Jones v. Litscher et al

Filing 19

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 5/10/2018. 18 Plaintiff's motion to use funds from release account to pay remaining balance of filing fee DENIED. 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 a "strike" under 28 USC §1915(g). (cc: all counsel, via mail to Jumar Jones at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JUMAR K. JONES,
Plaintiff,
v.

Case No. 17-cv-704-pp

JON LITSCHER,
SCOTT ECKSTEIN,
MICHELLE HAESE,
LT. LENZ, and
STEVE SCHUELER,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION TO USE FUNDS
FROM HIS RELEASE ACCOUNT TO PAY THE FILING FEE BALANCE
(DKT. NO. 18), SCREENING PLAINTIFF’S SECOND AMENDED COMPLAINT
(DKT. NO. 17), AND DISMISSING THE CASE
______________________________________________________________________________
On May 19, 2017, the plaintiff—a state prisoner representing himself—
filed a complaint under 42 U.S.C. §1983. Dkt. No. 1. He later filed an amended
complaint, dkt. no. 13, which the court screened. After identifying problems
with the amended complaint, the court gave the plaintiff the opportunity to file
a second amended complaint. Dkt. No. 15. The plaintiff took advantage of that
opportunity and filed a second amended complaint on March 28, 2018. Dkt.
No. 17. That same day, the plaintiff filed a motion asking the court to order his
institution to deduct the remainder of the filing fee from his release account
rather than from his regular prison trust account. Dkt. No. 18. This decision
resolves the plaintiff’s motion and screens his second amended complaint.

I. Motion to Use Release Account Funds to Pay Balance of Filing Fee
The plaintiff has asked the court to order his institution to deduct the
balance of the filing fee from his release account, rather than from his regular
prison trust account. Dkt. No. 18. In support of his motion, the plaintiff
attached a copy of Department of Adult Institutions (DAI) policy 309.45.02,
Attachment A, which explains the DAI’s policy for when a prisoner may use the
funds in his prisoner’s release account. Dkt. No. 18-1.
The Prison Litigation Reform Act requires the court to collect filing fees
from a “prisoner’s account.” 28 U.S.C. §1915(b). The term “prisoner’s account”
includes both a prisoner’s release account and his general account. Spence v.
McCaughtry, 46 F. Supp. 2d 861, 862 (E.D. Wis. 1999). “A release account is a
restricted account maintained by the Wisconsin Department of Corrections to
be used upon the prisoner’s release from custody upon completion of his
sentence.” Wilson v. Anderson, Case No. 14-C-798, 2014 WL 3671878 at *3
(E.D. Wis. July 23, 2014) (citing Wis. Adm. Code § DOC 309.466). Given the
purpose of the release account, federal courts generally don’t consider it a good
idea to focus on that account as the source of money to pay the filing fee
requirements. Smith v. Huibregtse, 151 F. Supp. 2d 1040, 1042 (E.D. Wis.
2001).
By attaching DAI policy 309.45.02 to his motion, the plaintiff appears to
suggest that the Department of Corrections’ policy allows prisoners to use
release account funds to pay case filing fees. If that is the plaintiff’s
interpretation of the policy, he is incorrect. The policy states that a prisoner
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may use funds in his release account to pay for PLRA fees (i.e., case filing fees)
only if a court directly orders the institution to use those funds, and only if
there are no funds available in the prisoner’s regular prison trust account.
As to the first requirement, the policy acknowledges that, in some
circumstances, a court may decide that it is appropriate to deviate from the
standard practice and allow a prisoner to use release account funds to pay the
filing fee. This provision encourages a prisoner to present his request to the
court, so the court may decide whether departing from the standard practice is
necessary or appropriate. Here, the plaintiff has not identified any reason that
the court should allow him to pay his filing fee balance out of his trust
account. He addressed the motion to the clerk of court, and all it said was that
he was requesting an order directing the institution to let him pay the balance
from the release account. Dkt. No. 18.
As to the second requirement, the policy says that, to the extent a
prisoner has funds in his regular account, he first should use those funds to
pay case filing fees, rather than depleting the funds in his release account. On
May 19, 2017, the court received from the plaintiff a copy of his regular trust
account statement for the period from November 15, 2016 through May 5,
2017—some five and a half months. Dkt. No. 3. That statement showed that, at
least as of that period, the plaintiff was receiving regular deposits into his
account (presumably from his prison job), as well as deposits from someone
outside the institution (perhaps a friend or family member). The plaintiff’s
average monthly deposits totaled $160.14 for those months, and his average
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monthly balance was a positive $30.41. Some of the money deposited was
deducted by the institution for various reasons (including satisfying an
outstanding restitution order), but much of it remained available to the
plaintiff.
The money in the plaintiff’s release account is there so that when he is
released from custody, he won’t go out into the world with nothing. Because
the plaintiff has not given the court any reason to allow him to pay the balance
of his filing fee from his release account, and because it appears that the
plaintiff has adequate money in his regular account, the court does not think it
is a good idea to allow him to use the money in his release account to pay his
case filing fees. The court will deny this motion.
II.

Screening the Plaintiff’s Second Complaint
A.

Federal Screening Standard

The court previously explained to the plaintiff that it was required to
dismiss a complaint if a 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 under the federal notice pleading system, a
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).
To proceed under 42 U.S.C. § 1983, a plaintiff must allege facts sufficient
to support the inference that: 1) he was deprived of a right secured by the
Constitution or laws of the United States; and 2) the defendant was acting
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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)).
B.

The Plaintiff’s Allegations

The plaintiff is an inmate at Green Bay Correctional Institution. Dkt. No.
17 at 3. In the second amended complaint, he alleges that defendant Jon
Litscher, the Department of Corrections Secretary, requires all inmates to
follow the chain of command when filing inmate grievances. Id. The plaintiff
states that, on July 11, 2017, he did just that, when he sent a letter to his unit
manager defendant Michelle Haese, complaining that he was not allowed to
exercise in his dorm even though other inmates in the prison are allowed to
exercise in their living spaces. Id. He also complained that he was not able to
attend his scheduled recreation/library periods because of his work/program
obligations. Id.
About two weeks later, Haese sent a letter to the plaintiff, which allegedly
informed him that, despite not being able to attend scheduled recreation
periods with the rest of his unit, he had attended a library period the following
week. Id. The plaintiff asserts that a few days later, he responded to Haese and
informed her that she was incorrect. Id.

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The next day, on August 1, 2017, defendants Scott Eckstein and
Lieutenant Lenz allegedly called the plaintiff in for an interview. Id. at 3-4.
According to the plaintiff, Eckstein told the plaintiff that his letter to Haese was
disrespectful and that he had lied about an employee. Id. at 4. About two
weeks later, Lenz allegedly charged the plaintiff with violating a rule that
prohibits disrespect and lying about employees. Id. The plaintiff states that the
rule does not prohibit language that is “not obscene, profane, abusive, or
threatens others, where language necessary to describe the factual basis of the
substance of the complaint.” Id. The plaintiff also explains that “making a false
statement outside the ICRS constitutes lying about an employee.” Id.
According to the plaintiff, the prison disciplinary board found him guilty
of disrespect and lying about an employee, because it believed the plaintiff
disrespected Haese when he told her that “her justification for denying him the
opportunity to exercise or attend scheduled recreation/library periods with his
housing unit was nonsense, gibberish, that had no reality according to state
and federal law.” Id. The board also found that the plaintiff had lied about an
employee when he stated that “he believed officers assault inmates.” Id. The
board disciplined the plaintiff with ninety days in segregation. A month later,
deputy warden Steve Schueler approved the board’s discipline and authorized
the segregation. Id.
The amended complaint seeks money damages and asks the court to
overturn the guilty finding and his punishment. Id. at 5.

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C.

The Court’s Analysis

Before addressing the substance of the plaintiff’s claims, the court notes
that the plaintiff has not stated a claim against Litscher or Schueler. Nowhere
in the second amended complaint does the plaintiff provide the court with any
facts that show that Litscher or Schueler were personally responsible for the
alleged misconduct. He does not allege that they did anything—they did not
interview him, review his complaint, charge him with violations, or discipline
him. “Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional deprivation.” Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996) (quoting Sheik-Abdi v. McClellan, 37
F.3d 1240, 1248 (7th Cir. 1994)). Under §1983, a plaintiff cannot sue someone
under the theory of vicarious liability (he can’t sue someone for another
person’s misconduct) or under the theory of supervisory liability (he can’t sue a
supervisor for the misconduct of his or her employees or subordinates).
Litscher’s creation of a policy requiring inmates to report up the chain of
command when filing grievances did not cause the plaintiff’s injury, nor did
Schueler’s affirmance of the hearing officer’s decision. While their limited
involvement gave rise to the circumstances about which the plaintiff
complains, neither of them was directly responsible for those circumstances.
The plaintiff has not stated a claim against them under §1983, and the court
will dismiss them as defendants.

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With regard to the substance of the plaintiff’s claims against defendants
Haese, Eckstein and Lenz, it is not entirely clear to the court how the plaintiff
believes they violated his constitutional rights. With regard to Haese, he says
that he sent her a letter complaining about “not being able to exercise in the
dorm, even though other inmates in the prison are allowed to exercise in their
living space,” and about “not being able to attend his scheduled
recreation/library periods due to work/program conflicts.” Id. at 3. He says
that Haese sent him a letter back, telling him that “even though he was not
allowed to attend his scheduled recreation period with his housing unit, he
subsequently attended a library period the next week.” Id. He says that he sent
a letter back to Haese, disagreeing with her. Id. It appears that in his letter
back to Haese, the plaintiff told her that “her justification for denying him the
opportunity to exercise or attend scheduled recreation/library periods with his
housing unit was nonsense, gibberish, that had no reality according to state
and federal law.” Id. at 4.
The plaintiff doesn’t allege that Haese told him he couldn’t exercise in the
dorm. He doesn’t allege that Haese told him he couldn’t go to scheduled
recreation, or to the library. Rather, he says that he sent Haese a complaint,
and that he disagreed with her response. The Constitution does not give an
inmate a right to have prison staff agree with him.
Even if the plaintiff had alleged that Haese refused to allow him to
exercise in the dorm, he would need to allege a lot more to state a claim. The
plaintiff does not say whether he was denied the ability to exercise in the dorm
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on one occasion, or all the time. The plaintiff alleges that the institution allows
other inmates to exercise in their living spaces. He does not explain whether
those other inmates are allowed to exercise in the dorms, or whether they
exercise in their cells. He does not explain whether those inmates are in
segregation, or in general population or in other housing. He does not explain
whether he was under any discipline when he was told he could not exercise in
the dorm. He does not say whether Haese explained why he couldn’t exercise
in the dorm.
The court must accord prison officials “wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain institutional
security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Decisions about where and
when inmates may exercise are the type of “day-to-day operation[s] of a
corrections facility [that] are not susceptible [to] easy solutions.” See id. The
court must defer to their expert judgment in such matters.
Even if the plaintiff had alleged that Haese picked the plaintiff as the only
person in the whole institution who was not allowed to exercise in the dorm, he
would need to provide yet more information to state a claim. If prison staff treat
one inmate differently from all other inmates, it is possible that the staff might
violate the Equal Protection Clause of the Fourteenth Amendment. A plaintiff
may bring what is known as a “class of one” equal protection claim if he does
not belong to any particular class or group, if he can show “that [he] has been
intentionally treated differently from others similarly situated and that there is
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no rational basis for the difference in treatment.” D.B. ex rel. Kurtis B. v. Kopp,
725 F.3d 681, 684 (7th Cir. 2013) (quoting Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)).
The plaintiff does not indicate whether Haese intentionally treated him
differently than other inmates, or that she did not have any rational basis for
doing so.
The plaintiff also has not alleged that Haese told him he could not go to
recreation, or to the library. Instead, he seems to allege that he complained to
Haese that his schedule did not permit him to take advantage of all of these
opportunities; it appears that his work commitments and programming
commitments were scheduled at times that conflicted with his recreation or
library schedule. Making difficult choices between opportunities to work and
opportunities for discretionary activities such as recreation is a tension with
which all people—incarcerated or not—struggle. The Constitution does not
require institutions to adjust each individual inmate’s schedule to ensure that
they can participate in all of their preferred activities.
An inmate does not have a liberty interest in prison employment,
programming or recreation. Obriechet v. Raemisch, 565 Fed. App’x 535, 539
(7th Cir. 2014); Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999).
See also Douglas v. DeBruyn, 936 F.Supp. 572, 576 (S.D. Ind. 1996). Even if
the plaintiff had alleged that Haese refused to allow him to work, or to attend
programming, or to go to recreation, he would not be able to state a claim that
the refusal violated his constitutional rights unless he could show that the
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refusal deprived him “of basic human needs like food, medical care, sanitation,
and physical safety.” James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir.
1992).
And even if the plaintiff had alleged that Haese intentionally restricted
his library time, that allegation would not give rise to a constitutional violation
unless he alleged that the restricted library time caused him some damage or
harm. Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996). The plaintiff has
filed multiple complaints in this case and has another case pending before this
court—there is no suggestion that whatever it is that is interfering with the
plaintiff going to the library as often as he’d like is interfering with his access to
the court.
In short, the plaintiff’s allegations don’t state a constitutional claim
against Haese.
With regard to Eckstein and Lenz, the plaintiff alleges first that they
called him in for an interview, and that Eckstein told the plaintiff that the
plaintiff’s letter had disrespected and lied about Haese. Dkt. No. 17 at 3-4. The
plaintiff alleges that Lenz charged him with violating a Wisconsin DOC rule
that prohibited disrespect and lying about employees. Id. at 4. The plaintiff
asserts that the DOC rules don’t prohibit such actions, when they are
“necessary to describe the factual basis of the substance of the complaint,” and
the language used isn’t obscene, profane, abusive or threatening. Id. At the end
of the complaint, the plaintiff says that the “Department” issued “false and
unjustified disciplinary charges.” Id. at 5.
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Again, it is not clear why the plaintiff believes Eckstein violated his
constitutional rights. Eckstein called him in for an interview, and expressed the
opinion that the plaintiff’s letter disrespected Haese and lied about her. Neither
of these actions violate any provision of the Constitution.
The plaintiff appears to allege that the charge Lenz issued was “false and
unjustified.” Even if the plaintiff is correct that Lenz deliberately issued a false
charge against him, he cannot state a claim of a constitutional violation. The
Seventh Circuit has held that “an allegation that a prison guard planted false
evidence which implicates an inmate in a disciplinary infraction fails to state a
claim for which relief can be granted where the procedural due process
protections as required in Wolff v. McDonnell are provided.” Hanrahan v. Lane,
747 F.2d 1137, 1141 (7th Cir. 1984). The plaintiff concedes that he received
due process on the allegedly false report. The prison disciplinary board
presumably had a hearing, where the plaintiff would have had the opportunity
to argue that Lenz’s charge was false.
The court also notes that as a remedy for this alleged violation, the
plaintiff asks the court to overturn “the [board’s] guilty finding and
punishment,” and to award him money damages for the time he spent in
segregation. Dkt. No. 17 at 5. In other words, the plaintiff is asking the court to
invalidate the board’s decision finding the plaintiff guilty of the allegedly false
charge Lenz filed.
“[C]laims challenging the fact or duration of state confinement are not
cognizable under § 1983.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006);
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see also Antonelli v. Foster, 104 F.3d 899, 900-01 (7th Cir. 1997) (explaining
that the bar on such claims applies to disciplinary punishment for violating a
prison’s rules). If this court were to rule in the plaintiff’s favor on his claim that
the board’s decision was wrong because the conduct report was inconsistent
with DOC rules, such a ruling would “necessarily imply the invalidity of the
punishment imposed.” Edwards v. Balisok, 520 U.S. 641, 648 (1997). A district
court is not allowed to invalidate the board’s finding and punishment under
§1983, so court cannot allow the plaintiff to proceed against Lenz on that basis.
The plaintiff does not appear to argue that the punishment of ninety days
in segregation somehow violated his civil rights. Even if he had, he would fail to
state a claim on that basis. Ninety days in segregation is a relatively short
period of time, and the plaintiff does not allege that the conditions in
segregation imposed “atypical and significant” deprivations or hardships. See
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). For that reason, the ninetyday punishment itself does not implicate a liberty interest. See id. at 485-86. If
the plaintiff did not have a liberty interest, then the Due Process Clause did not
provide him any protection, and the punishment could not violate the Due
Process Clause. Further, the plaintiff states that he was disciplined as a result
of a finding by the disciplinary board, which means that if he had been entitled
to due process protections, he received all the process he was due.
The plaintiff has not stated claims for which relief can be granted against
any of the defendants he has named in the second amended complaint. The
court notes one other thing. In his original complaint, the plaintiff named
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twelve defendants, only three of whom he named in this second amended
complaint (Litscher, Eckstein and Haese). Dkt. No. 1. That complaint was
twenty-one pages long, and alleged that the defendants violated his First
Amendment rights to the free exercise of religion and the Fourteenth
Amendment’s equal protection and due process clauses (relating to his
religious practices as a Muslim), as well as his Eighth Amendment rights
related to overcrowding and showering. Id. at 17-21.
Before the court screened that complaint, the plaintiff filed an amended
complaint. Dkt. No. 13. The amended complaint named twelve defendants, but
they weren’t the same twelve defendants he named in the original complaint,
and he did not include two defendants whom had previously told the court he
wanted to add. Nonetheless, the court screened that amended complaint. It
concluded that the amended complaint contained different allegations of
different kinds of injuries against different defendants at different times. Dkt.
No. 15 at 7-8. The court told the plaintiff that he needed to file an amended
complaint, choosing one set of claims against one set of defendants, and state
in simple, short terms what those defendants did to violate his rights. Id. at 911.
The plaintiff then filed the amended complaint the court now dismisses.
The court commends the plaintiff for filing a shorter, more concise complaint
that contains claims against a single set of defendants. But the court cannot
allow the plaintiff to proceed on this complaint, because it does not state
claims for which this court can grant relief.
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II.

Conclusion
The court DENIES the plaintiff’s motion to use funds from his release

account to pay the remainder of the filing fee. Dkt. No. 18.
The court ORDERS that this case is DISMISSED under 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a
claim.
The court will enter judgment accordingly, and the clerk will document
that the plaintiff has incurred a “strike” under 28 U.S.C. §1915(g).
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 this 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).

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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 10th day of May, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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