Grisle v. Jess et al

Filing 7

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 8/1/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED. Agency having custody of plaintiff shall collect $340.65 balance of filing fee from t he plaintiff's prison trust account in accordance with 28 USC §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 inmate has incurred a "strike" under 28 USC §1915(g). (cc: all counsel, via mail to Ronald Grisle and Superintendent at Kenosha Correctional Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RONALD L. GRISLE, JR.,
Plaintiff,
v.

Case No. 17-cv-858-pp

C. JESS,
QUALA CHAMPAGNE,
ANN KRUEGER,
M. GREENWOOD,
G. DAVIS, and
E. DAVIDSON,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING
THE COMPLAINT (DKT. NO. 1) AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, an inmate at Kenosha Correctional Center who is
representing himself, filed a complaint alleging that the defendant had denied
him his right to a hearing before the Program Review Committee. Dkt. No. 1.
He also filed a motion, asking the court to allow him to proceed without
prepaying the filing fee. Dkt. No. 2.
This case originally was assigned to Magistrate Judge Nancy Joseph. The
defendants have not been served, and so have not had the opportunity to
consent to magistrate judge jurisdiction. Accordingly, the clerk’s office
randomly reassigned the case to a United States district court judge—Judge
Pepper—to screen the complaint.

1

This decision resolves the plaintiff’s motion to proceed without prepaying
the filing fee, screens the complaint and dismisses the case.
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
conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b). On July 5, 2017, Judge Joseph ordered the
plaintiff to pay an initial partial filing fee of $9.35. Dkt. No. 6. The plaintiff paid
the initial partial filing fee on July 24, 2017. Accordingly, the court will grant
the plaintiff’s motion to proceed without prepayment of the filing fee. The court
will order the plaintiff to pay the remainder of the filing fee over time in the
manner 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 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,
2

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;
and 2) the defendant was acting under color of state law. 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)); 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 alleges that, under the Department of Corrections’ policies
and procedures, inmates are entitled to participate in “recall” hearings, which
are held before the Program Review Committee (PRC). Dkt. No. 1 at 4. (The
court assumes that the plaintiff is referring to program review hearings; among
other things, program review hearings allow prison staff to assess an inmate’s
custody classification and his motivation to become involved in treatment and
programs. See Wis. Stat. DOC 302.14-17.)
The plaintiff asserts that in October 2016, the PRC approved him for
minimum security status. Dkt. No. 1 at 4. As a result, he was transferred to
3

the Kenosha Correctional Center (KCC) a month later. Id. He alleges that the
PRC set a recall hearing for February 1, 2017. Id.
The plaintiff asserts that defendant Quala Champagne (the warden of the
Wisconsin Correctional Center System) informed him that defendant Ann
Krueger (the KCC Superintendent) held a recall hearing on February 10, 2017.
Id. According to the plaintiff, despite DOC policy, he was not invited to
participate in the recall hearing. Id. The plaintiff explains that he wanted the
opportunity to explain why he should be allowed community custody, i.e., work
release. Id.
The plaintiff alleges that he complained to Wisconsin Correctional Center
System staff that he was not allowed to participate in the recall hearing. Id.
Champagne responded in April 2017, and confirmed that a recall hearing was
held in February 2017. Id. The plaintiff then prepared a formal inmate
complaint, which he sent to defendant G. Davis. Id. In response, Davis noted
that the plaintiff’s last recall hearing was in October 2016; he denied that a
recall hearing occurred in February 2017, despite Champagne’s statement to
the contrary. Id. Davis recommended that, because there was no evidence that
the plaintiff had been excluded from a recall hearing, the complaint should be
dismissed. Id. Krueger (who allegedly held the hearing) affirmed dismissal on
that basis. Id.
The plaintiff appealed the dismissal in May 2017. Id. at 5. Defendant C.
Jess, the acting DOC Secretary, dismissed the appeal based on the
recommendation of defendant M. Greenwood, a complaint examiner. Id.
4

B.

The Court’s Analysis

In screening the complaint, the court assumes that a hearing did occur
in February 2017. While it may be true that DOC policy contemplates an
inmate’s participation in such a hearing, the plaintiff cannot state a claim
under §1983 based solely on Krueger’s alleged violation of DOC policy. This is
because a violation of DOC policy, standing alone, does not necessarily violate
the Constitution. See Guajardo-Palma v. Martinson, 622 F.3d 801, 806 (7th
Cir. 2010). Conduct which violates DOC policy may not violate the
Constitution. The question before the court is not whether the plaintiff was
entitled under DOC rules and policies to participate in the recall hearing, but
whether the plaintiff had a constitutional right to participate in the recall
hearing. He did not.
According to the plaintiff, the purpose of the recall hearing was to
determine whether he should be permitted to participate in the work release
program. The Constitution (as opposed to DOC policy) would require that the
institute allow the plaintiff to participate in the hearing preceding that
determination only if he had a liberty or property interest in the outcome of the
hearing. If there is no liberty or property interest involved, there is no right to
due process. DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992).
Neither the Constitution nor state statutes create such an interest.
In Meachum v. Fano, 427 U.S. 215 (1976), the U.S. Supreme Court held
that the Constitution does not grant prisoners a liberty or property interest in
their classifications or prison assignments. Relying on this holding, the
5

Seventh Circuit Court of Appeals concluded that the opportunity to be assigned
to a work camp or participate in a work release program does not create a
liberty or property interest. DeTomaso, 970 F.2d at 212 (citing Joihner v.
McEvers, 898 F.2d 569 (7th Cir. 1990)).
Further, even though a state may provide inmates with more process
than the Constitution demands, and may create a liberty or property interest
through rules and regulations, Wisconsin has not done so in connection with
its work release program. A review of the statutes regarding program reviews
(Wis. Stat. DOC 310.17) and the work release program (Wis. Stat. DOC 324.05)
makes it clear that prisoners are not entitled to participate in the work release
program; they merely have the opportunity to participate pending approval by
the relevant authority. See DeTomaso, 970 F.2d at 213.
Even assuming that Krueger’s exclusion of the plaintiff from the
February 2017 recall hearing ran afoul of the DOC’s policy (and the court
expresses no opinion on that point one way or the other), it did not run afoul of
the Constitution, because the plaintiff had no liberty or property interest in
participating in the work release program. No liberty or property interest in the
work release program means that the plaintiff had no right to the process (i.e.,
the hearing) determining whether he should be permitted to participate in the
program. The court must dismiss the plaintiff’s complaint for failure to state a
claim.

6

III.

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

prepayment of the filing fee. Dkt. No. 2.
The court ORDERS that the agency having custody of the prisoner shall
collect from his institution trust account the $340.65 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 mail a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court further ORDERS that this case is DISMISSED under 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
The court further ORDERS the Clerk of Court to document that this
inmate 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
7

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 1st day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

8