Johnson v. Fisher et al

Filing 12

ORDER signed by Judge J P Stadtmueller on 8/28/2024: DISMISSING CASE under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the failure to state a claim and DIRECTING Clerk of Court to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). (cc: all counsel, via mail to Dewhite D Johnson at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEWHITE D. JOHNSON,
Plaintiff,
v.

Case No. 24-CV-454-JPS

BRANDON FISHER, MATTHEW
BURNS, JOSEPH FALKE, KYLE
TRITT, and CAPT. RYMARKIEWICZ,

ORDER

Defendants.

Plaintiff Dewhite D. Johnson, an inmate confined at Waupun
Correctional Institution (“WCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that his constitutional rights were violated. ECF No. 1. On
July 25, 2024, the Court screened Plaintiff’s complaint, found that it failed
to state a claim, and provided him the opportunity to file an amended
complaint. ECF No. 10. On August 14, 2024, Plaintiff filed an amended
complaint. ECF No. 11. This Order screens Plaintiff’s amended complaint.
1.

FEDERAL SCREENING STANDARD
Under the Prison Litigation Reform Act, the Court must screen

complaints brought by prisoners seeking relief from a governmental entity
or an 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 a complaint states a claim, the Court applies
the same standard that applies to dismissals 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)). 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 for
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. 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 Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them 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)).
2.

PLAINTIFF’S ALLEGATIONS
Plaintiff names Defendants Brandon Fisher (“Fisher”), Matthew

Burns (“Burns”), Joseph Falke (“Falke”), Kyle Tritt (“Tritt”), and Capt.
Rymarkiewicz (“Rymarkiewicz”). ECF No. 11 at 1. On January 3, 2020,
Fisher violated Plaintiff’s due process rights when he wrote a conduct
report for Plaintiff engaging in self-harm. Id. at 2. On January 23, 2020,
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Plaintiff received punitive confinement after a disciplinary hearing. Id. at 3.
Falke signed off on the conduct report on January 6, 2020, even though he
should have been aware that policy forbids conduct reports for self-harm.
Id. Despite this knowledge, Falke and Tritt failed to release Plaintiff after
the conduct report was overturned on February 20, 2024. Id. This violated
Plaintiff’s due process rights for seven days because he was not released
until February 27, 2020. Id. at 4. Burns participated in Plaintiff’s due process
deprivation because he had no just reason for imposing the discipline. Id.
Tritt turned a blind eye to this deprivation and had the opportunity to
intervene. Id.
Plaintiff received another conduct report in August 2022. Id. at 4.
Rymarkiewicz approved of the constitutional violation when he allowed
Plaintiff to be held in seg from August 26, 2024 until September 7, 2024. Id.
Plaintiff was held beyond the TLU twenty-one-day time limit for being
served. Id. Plaintiff alleges that his segregation caused him to suffer an
atypical hardship. Id. He was prevented from contact with his grandmother
who was in the hospital, and he was prevented from attending educational
and vocational programs. Id. Plaintiff suffered mental and emotional
injuries of insomnia, anxiety, weight/appetite loss/gain, and depression. Id.
at 5.
3.

ANALYSIS
The Court finds that Plaintiff may not proceed against any

defendants for a Fourteenth Amendment claim for a deprivation of liberty
without due process. A prisoner challenging the process he was afforded in
a prison disciplinary proceeding must meet two requirements: (1) he has a
liberty or property interest that the state has interfered with; and (2) the
procedures he was afforded upon that deprivation were constitutionally
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deficient. Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007) (citing Rowe v.
DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994)).
“A prisoner’s liberty interest, and incumbent entitlement to
procedural due process protections, generally extends only to freedom
from deprivations that ‘impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prisoner life.” Lekas v. Briley,
405 F.3d 602, 608 (7th Cir. 2005) (quoting Sandin v. Conner, 515 U.S. 472, 483–
84 (1995)). In the absence of an “atypical and significant” deprivation, the
procedural protections of the Due Process Clause are not triggered. Id.
Disciplinary segregation can trigger due process protections. Marion v.
Columbia Correctional Inst., 559 F.3d 693, 697 (7th Cir. 2009) (citations
omitted). When making the determination whether an inmate is entitled to
such protections, courts analyze “the combined import of the duration of
the segregative confinement and the conditions endured by the prisoner
during that period.” Id. If conditions in segregation are significantly harsher
than those in the normal prison environment, then a liberty interest may
arise even when the duration of the segregation, standing alone, would not
trigger such an interest. Id. at 697–98. On the one hand, “six months of
segregation is ‘not such an extreme term’ and, standing alone, would not
trigger due process rights.” Id. at 698 (quoting Whitford v. Boglino, 63 F.3d
527, 533 (7th Cir. 1995)). On the other end of the spectrum, transfer to a
maximum-security prison and placement in segregated confinement for an
indefinite duration where virtually all sensory and environmental stimuli
are denied, little human contact is permitted, and prisoners otherwise
eligible for parole are disqualified from parole eligibility, taken together,
impose an atypical and significant hardship within the correctional context.
Id. at 697 (citing Wilkinson v. Austin, 549 U.S. 209, 224 (2005)).
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Once a liberty or property interest has been invoked, the Court looks
to what process was due. Prison disciplinary hearings satisfy procedural
due process requirements where an inmate is provided: (1) written notice
of the charge against the prisoner twenty four (24) hours prior to the
hearing; (2) the right to appear in person before an impartial body; (3) the
right to call witnesses and to present physical/documentary evidence, but
only when doing so will not unduly jeopardize the safety of the institution
or correctional goals; and (4) a written statement of the reasons for the
action taken against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563–
69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). Not only must
the requirements of Wolff be satisfied, but the decision of the disciplinary
hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d
1395, 1402 (7th Cir. 1994).
Here, Plaintiff’s amended complaint does not contain facts showing
that Defendants interfered with a liberty interest. Plaintiff alleges that he
was in segregation for an extra seven days following the affirmance of his
2020 inmate complaint. As to his August 2022 conduct report, Plaintiff was
in segregation for less than two weeks. On these facts alone, the Court
cannot determine that Plaintiff suffered an atypical and significant
deprivation given the relatively short period of time spent in segregation.
See Marion, 559 F.3d at 698. Accordingly, based on the allegations in
Plaintiff’s amended complaint, the Court cannot determine that Plaintiff
had a protected liberty interest. Plaintiff again takes issue with Defendants
violating certain prison policies, however, “violation of a prison policy
alone does not violate the Constitution . . . .” Schroeder v. Sawall, 747 F. App’x
429, 431 (7th Cir. 2019) (citing Lewis v. Richards, 107 F.3d 549, 553 n. 5 (7th

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Cir. 1997); Langston v. Peters, 100 F.3d 1235, 1238 (7th Cir. 1996)). As such,
Plaintiff may not proceed on a due process claim.
4.

CONCLUSION
The Court has already screened Plaintiff’s original complaint and

provided guidance to assist with his claims. The Court therefore finds that
further amendment would be futile. See Runnion ex rel. Runnion v Girl Scouts
of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015). As such, the
Court is obliged to dismiss this action for the failure to state a claim and
will accordingly assess a “strike” under 28 U.S.C. § 1915(g).
Accordingly,
IT IS ORDERED that this case be and the same is hereby
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the
failure to state a claim; and
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g).
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of August, 2024.
BY THE COURT:

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

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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 thirty (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 thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be
liable for the $605.00 appellate filing fee regardless of the appeal’s
outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court.
See Fed. R. App. P. 24(a)(1). Plaintiff may be assessed another “strike” by
the Court of Appeals if his appeal is found to be non-meritorious. See 28
U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able
to file an action in federal court (except as a petition for habeas corpus
relief) without prepaying the filing fee unless he demonstrates that he is
in imminent danger of serious physical injury. Id.
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 (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).
A party is expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.

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