Durley v. Tritt et al
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 4/27/2021. #2 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $346.51 balance of filing fee from plaintiff's prison trust account under 28 USC 1915(b)(2). Case DISMISSED under 28 USC 1915(e)(2)(B) and 1915A(b)(1) for failure to state claim; Clerk of Court to document that plaintiff has incurred "strike" under 28 USC 1915(g). (cc: all counsel and mailed to Timothy Durley and Warden at Waupun Correctional Institution)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 21-cv-281-pp
and JOSEPH FALKE,
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING COMPLAINT
UNDER 28 U.S.C. §1915A AND DISMISSING CASE
Timothy Durley, an inmate at Waupun Correctional Institution who is
representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the
defendants denied him pens, magazines and snacks while he was in
administrative confinement. This decision resolves the plaintiff’s motion for
leave to proceed without prepaying the filing fee, dkt. no. 2, and screens his
complaint, dkt. no. 1.
Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was a prisoner when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA allows the court to give a prisoner plaintiff the ability to proceed with
his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When
funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C.
§1915(b)(1). He then must pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
On March 2, 2021, the court ordered the plaintiff to pay an initial partial
filing fee of $3.49. Dkt. No. 4. The court received that fee on March 22, 2021.
The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and will require him to pay the remainder of the filing
fee over time in the manner explained at the end of this order.
Screening the Complaint
Federal Screening Standard
Under the PLRA, the court must screen complaints brought by prisoners
seeking relief from 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 prisoner 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).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,
668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts,
“accepted as true, to ‘state a claim to relief 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 for relief under 42 U.S.C. §1983, a plaintiff must allege
that someone deprived him of a right secured by the Constitution or the laws of
the United States, and that whoever deprived him of this right was acting
under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints to a less
stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720
(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
The Plaintiff’s Allegations
The complaint alleges that on January 14, 2021, the plaintiff was placed
on “administrative confinement in segregation.” Dkt. No. 1 at 2. The plaintiff
asserts that before he was placed on administrative confinement, supervisor
Capt. Kyle Tritt told the plaintiff that he would not be placed on administrative
confinement “in program in the north cell hall with other inmates who will be
on [administrative confinement] as [the plaintiff would be], because due to [his]
assault on staff;” rather, the plaintiff would be placed “down here in
segregation on B, Range Upper.” Id. The plaintiff says he asked Tritt whether
the plaintiff would “receive everything that the other [administrative
confinement] inmates will be able to have on [administrative confinement].” Id.
Tritt allegedly responded, “yes, [the plaintiff would],” and said that Tritt had
talked to the security director, Joseph Falke. Id.
The plaintiff asserts that when he was placed on administrative
confinement on January 14, 2021, he received his television and fan “as other
[administrative confinement] inmates would receive.” Id. at 2-3. But the
plaintiff says that he did not get his writing pens, magazines or “canteen food
items such as chips–candy–cakes–etc even though [he] attempted to ordered
[sic] these items 2 times.” Id. at 3. The plaintiff says he wrote different staff
members about this, including Tritt and Falke. Id. He says that the reply he
received (he does not say from who) was that he “would not be able to receive
these items due to the range [he was] on in segregation,” and that he would
need to be “on program in the north cell hall with the other [administrative
confinement] inmates.” Id.
The plaintiff notes that inmates in segregation are supposed to be on C
Range, but that because of construction on the Behavioral Health Unit,
inmates in the BHU are housed on C Range. Id. Administrative confinement
inmates “on program” are in the north cell hall. Id.
The plaintiff asked Tritt and Falke why he could not “go to program” with
the other administrative confinement inmates. Id. They told him that because
of his assault on staff and his history, the doors “on program in the north cell
hall” open regularly at random, and staff did not want to risk putting [the
plaintiff] over there.” Id.
The plaintiff says he is suing the defendants “at their fullest capacity
[and] individually for violation of [his] 14th Amendment, equal rights [and] 8th
Amendment deliberate indifference [and] my 14th Amendment discrimination.”
Id. He seeks compensatory and punitive damages. Id. at 4. He also requests
that the defendants resign from working at Waupun and that he be relocated to
the North Cell Hall with the other inmates on administrative confinement. Id.
The plaintiff says he is suing the defendants in their “fullest capacity.”
The court assumes that the plaintiff means that he is trying to sue the
defendants in their official capacities. Suing a prison official in his official
capacity is another way of suing the entity that the official represents or for
which the official works. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690, n.55 (1978)).
The plaintiff alleges that Tritt and Falke are employees of the Wisconsin
Department of Corrections (DOC) and that they work at Waupun. The court
construes the claims against the defendants in their official capacities as
claims against the Department of Corrections, the agency for which they work.
Graham, 473 U.S. at 165–66. Because claims against the DOC are “no different
from a suit against the State itself,” the court must treat those claims as if the
plaintiff had brought them against the State of Wisconsin. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing Graham, 473 U.S. at 16566; Monell, 436 U.S. at 690 n.55). But a state is not a “person” against whom
the plaintiff may recover monetary damages under §1983. Lapides v. Bd. of
Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Williams v.
Wisconsin, 336 F.3d 576, 580 (7th Cir. 2003).
The plaintiff seeks money damages, but he also wants to be relocated to
a different part of the prison and wants the defendants to resign from their
positions at Waupun. The court does not have the authority to direct the DOC
to fire its employees or to force the employees to resign. Nor does the court
have the authority to order an inmate to be housed in a certain part of an
institution. See Johnson v. Eckstein, No. 18-CV-1696-PP, 2019 WL 4540279,
at *4 (E.D. Wis. Sept. 19, 2019) (citing Westefer v. Neal, 682 F.3d 679, 683 (7th
Cir. 2012) (noting that the PLRA “enforces a point repeatedly made by the
Supreme Court in cases challenging prison conditions: [P]rison officials have
broad administrative and discretionary authority over the institutions they
manage” (internal quotation marks omitted)); and Capoeria v. Pollard, No. 16-
CV-224, 2016 WL 1452398, at *4 (E.D. Wis. Apr. 13, 2016) (noting that
plaintiff’s request for a transfer “is highly intrusive to the inner workings of the
prison system and would tread upon the DOC’s authority over running their
This means that the only relief available to the plaintiff is money
damages. Because a citizen cannot obtain money damages from the state (the
defendant in an official capacity claims), the plaintiff may not proceed against
the defendants in their official capacities. He may pursue his claims against
the defendants only in their individual capacities. The court will dismiss the
plaintiff’s official capacity claims.
The plaintiff asserts a claim under the Equal Protection Clause of the
Fourteenth Amendment. The Equal Protection Clause provides that “[n]o State
shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const., amend. XIV, §1. The Equal Protection Clauses protects
against arbitrary discrimination “unrelated to the character of the activity
allegedly discriminated against.” Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir.
1988). To prevail on an equal protection claim, an incarcerated person must
prove that: 1) similarly situated incarcerated persons have been treated
differently; and 2) there is no rational relation between the dissimilar treatment
and any legitimate penal interest. See May v. Sheahan, 226 F.3d 876, 882 (7th
Cir. 2000) (citing Hudson v. Palmer, 468 U.S. 517, 523 (1984), and Williams v.
Lane, 851 F.2d 867, 881–82 (7th Cir. 1988)).
The plaintiff alleges that the defendants required him to serve his
administrative confinement on the B Range, Upper Level, because he assaulted
staff members and because of his “history.” He says that other inmates on
administrative confinement are housed in the North Cell Hall, where they
receive the items that he did not receive. When the plaintiff asked the
defendants why he was not housed in the North Cell Hall, the defendants told
him it was for the safety of staff given the plaintiff’s behavior. The defendants
told him that because the doors on the North Cell Hall regularly open at
random, it would not be safe to house the plaintiff there.
The plaintiff has not alleged that he was treated differently than other
similarly situated incarcerated persons. It is not enough for the plaintiff to
allege that some incarcerated persons got pens, magazines and snacks while he
did not—he must allege that those other persons were similarly situated to him.
In other words, he must allege that there were other incarcerated persons who
were on administrative confinement in segregation, who had assaulted staff
and who had a history like the plaintiff’s, but who were allowed to have pens,
magazines and snacks. The plaintiff has not alleged facts to support the first
element of an equal protection claim.
Even if the plaintiff had alleged the first element of an equal protection
claim, his own facts imply that he cannot allege the second element—that there
was no rational relationship between treating him differently and any legitimate
penal interest. Protecting staff is a legitimate penal interest. Kaufman v.
McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005) (“Prison officials
unquestionably have a legitimate interest in maintaining institutional
security.”) Housing the plaintiff in a more restrictive segregation unit to protect
staff because of his history of assaulting staff is a legitimate penal interest that
justifies treating him differently than other incarcerated persons. The
complaint does not state a claim that the defendants violated the plaintiff’s
right to equal protection by housing him in restrictive conditions.
The plaintiff also seeks to proceed under the Eighth Amendment. The
Eighth Amendment protects against “deprivations of essential food, medical
care, or sanitation” and “other conditions intolerable for prison confinement.”
Rhodes v. Chapman, 452 U.S. 337, 348 (1981)). An Eighth Amendment claim
consists of both objective and subjective components. Farmer v. Brennan, 511
U.S. 825, 834 (1994). To satisfy the objective component, an incarcerated
person must show that he “is incarcerated under conditions posing a
substantial risk of serious harm.” Id. The subjective component of an Eighth
Amendment violation requires the incarcerated person to demonstrate that the
official acted with the requisite intent, that is, that he had a “sufficiently
culpable state of mind.” Id. A prison official shows deliberate indifference when
he “realizes that a substantial risk of serious harm to a prisoner exists, but
then disregards that risk.” Perez, 792 F.3d at 776 (citing Farmer, 511 U.S. at
The plaintiff has not stated facts to demonstrate either component of an
Eighth Amendment claim. He alleges he was denied pens, magazines and
snacks while in segregation. He does not explain how denying him these items
posed “a substantial risk of serious harm” to his health or safety or deprived
him of an essential need. He does not explain how depriving him of these items
subjected him to intolerable conditions. So he has not demonstrated the first,
objective component of an Eighth Amendment claim—that he was incarcerated
under conditions that posed a substantial risk of serious harm. For that
reason, he also has not stated facts supporting the second, subjective element
of an Eighth Amendment claim—that Tritt and Falke realized that the plaintiff
was at risk of substantial harm but disregarded that risk. Because the plaintiff
has not alleged that a risk of substantial harm existed, he cannot show that
Tritt and Falke knew of that risk but disregarded it. The court will not allow the
plaintiff to proceed on an Eighth Amendment claim.
Because the conditions the plaintiff describes did not deprive him of his
rights under the Fourteenth or Eighth Amendments, he has not stated a claim
for relief that a federal court may grant. Although courts generally allow civil
plaintiffs at least one opportunity to amend their pleadings, the court need not
do so where the amendment would be futile. See Boyd v. Bellin, 835 F. App’x
886, 889 (7th Cir. Feb. 10, 2021). The plaintiff’s complaint is thorough in its
allegations describing his claim. The court finds that allowing him to amend
would be futile.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepaying the filing fee. Dkt. No. 2.
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.
The Clerk of Court will document that the plaintiff has incurred a “strike”
under 28 U.S.C. §1915(g).
The court ORDERS that the agency that has custody of the plaintiff must
collect from his institution trust account the $346.51 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 plaintiff’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 must clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution must 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 at Waupun
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 thirty 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 thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under limited 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 twenty-eight 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 at Milwaukee, Wisconsin this 27th day of April, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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