Brown v. Wiltzius
Filing
10
SCREENING ORDER re 8 Plaintiff's Amended Complaint signed by Judge J P Stadtmueller on 1/28/2025. 9 Plaintiff's Motion for Leave to Pay Remainder of Filing Fee from Release Account is DENIED. Plaintiff may PROCEED on: Access to C ourt claim against Defendant Wiltzius and Fourteenth Amendment Due Process claim against Defendants Puterbaugh and Doying. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the WI DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related challenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Miquel D Brown at Kettle Moraine Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MIQUEL D. BROWN,
Plaintiff,
Case No. 24-CV-915-JPS
v.
CAPTAIN JEREMY WILTZIUS, LT.
MARK PUTERBAUGH, and C.O.
DENICE DOYING,
ORDER
Defendants.
Plaintiff Miquel D. Brown, an inmate confined at Kettle Moraine
Correctional Institution (“KMCI”) filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that Defendant Jeremy Wiltzius (“Wiltzius”) violated his
constitutional rights. ECF No. 1. On October 23, 2024, the Court screened
Plaintiff’s complaint, found that it failed to state a claim, and allowed
Plaintiff the opportunity to file an amended complaint. ECF No. 7. On
November 12, 2024, Plaintiff filed an amended complaint, ECF No. 8 and a
motion to pay the whole filing fee from his release account, ECF No. 9. This
Order resolves Plaintiff’s motion to pay the remainder of the filing fee from
his release account and screens his amended complaint.
1.
MOTION FOR LEAVE TO PAY FILING FEE FROM RELEASE
ACCOUNT
The Court will deny Plaintiff’s motion for an order to use his inmate
release account to pay the filing fee in full. This Court has the authority to
order disbursements from a prisoner’s release account for payment of an
initial partial filing fee (“IPFF”). See, e.g., Doty v. Doyle, 182 F. Supp. 2d 750,
751 (E.D. Wis. 2002) (noting that “both the Wisconsin Prison Litigation
Reform
Act…and
the
federal
Prison
Litigation
Reform
Act
[(“PLRA”)]…authorize the courts to order that…a prisoner’s release
account be made available [to pay an IPFF]”). However, this Court lacks the
authority—statutory or otherwise—to order that a prisoner may tap into
his release account to pay current (or future) litigation costs. Cf. Wilson v.
Anderson, No. 14-CV-0798, 2014 WL 3671878, at *3 (E.D. Wis. July 23, 2014)
(declining to order that a prisoner’s full filing fee be paid from his release
account, “[g]iven the [DOC’s] rationale for segregating funds into a release
account” and the absence of any statutory authority compelling the court
to do so).
Permitting a prisoner to invade a release account for litigation costs
could harm that prisoner’s likelihood of success post-incarceration, see Wis.
Admin. Code § DOC 309.466 (stating that disbursements from a prisoner’s
release account are authorized “for purposes that will aid the inmate’s
reintegration into the community”), especially if the prisoner is particularly
litigious. As the Seventh Circuit has instructed, “like any other civil litigant,
[a prisoner] must decide which of [his] legal actions is important enough to
fund,” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); thus, if a
prisoner concludes that “the limitations on his funds prevent him from
prosecuting [a] case with the full vigor he wishes to prosecute it, he is free
to choose to dismiss it voluntarily and bring it at a later date.” Williams v.
Berge, No. 02-CV-10, 2002 WL 32350026, at *8 (W.D. Wis. Apr. 30, 2002).
Here, Plaintiff offers no explanation for his need to pay the
remainder of the filing fee from this release account. As such, the Court is
obliged to deny Plaintiff’s motion.
Page 2 of 11
2.
SCREENING THE AMENDED COMPLAINT
2.1
Federal Screening Standard
Under the PLRA, 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
Page 3 of 11
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)).
2.2
Plaintiff’s Allegations
Plaintiff brings his amended complaint against Defendants Wiltzius,
Lt. Mark Puterbaugh (“Puterbaugh”), and C.O. Denise Doying (“Doying”).
ECF No. 8 at 1. On February 28, 2024, Wiltzius called Plaintiff to the mail
room to address inconsistencies in the address on his legal mail. ECF No. 8
at 2. Wiltzius told Plaintiff that his legal mail tested positive for synthetics
cannabinoids. Id. As a result, Wiltzius placed Plaintiff in temporary lock up
(“TLU”). Id. While in TLU, Wiltzius attempted to ask Plaintiff questions;
Plaintiff refused to answer the questions and responded to Wiltzius in an
angry/disrespectful tone. Id.
Wiltzius then retaliated against Plaintiff by filing a bogus conduct
report on Plaintiff. Id. Wiltzius manufactured and fabricated evidence
against Plaintiff by lying about the dates and times that he called Plaintiff
to the mail room and alleging that he opened Plaintiff’s legal mail in front
of him. Id. Wiltzius provided that the incident in the mailroom occurred on
February 27, 2024, and that he opened up Plaintiff’s legal mail in his
presence. Id. at 3. Wiltzius lied so that he could try to cover up the fact that
he opened up legal mail outside of Plaintiff’s presence, in violation of
institutional policy and the constitution. Id. Wiltzius opened Plaintiff’s
private legal mail from a law firm that contained a supervisory writ. Id. at
1. This document gave insight into Plaintiff’s legal defense and arguments.
Id.
Wiltzius further retaliated against Plaintiff by lying that the mail
tested positive for synthetics. Id. at 3. This was a lie because the test results
Page 4 of 11
showed only that a possible substance was detected. Id. Wiltzius knew that
the test he used often yields a false positive and is less accurate than a
definitive test, which is required to confirm the presence of drugs. Id.
Plaintiff received ninety days disciplinary separation for a violation of DOC
303.43 – Possession of Intoxicants. Id. Wiltzius also manufactured evidence
against Plaintiff by saying that he violated DOC 303.36(A) – Enterprise
Fraud – and DOC 303.49 – Unauthorized Use of Mail. Id. at 3–4. Puterbaugh
and Doying conducted Plaintiff’s disciplinary hearing. Id. at. 2. Puterbaugh
was not impartial because he was subordinate to Wiltzius. Id. The decision
at the disciplinary hearing was not supported by any evidence. Id.
2.3
Analysis
First, the Court finds that Plaintiff may proceed on an access to
courts claim against Wiltzius for opening his “legal mail” outside his
presence. The Seventh Circuit has clarified that not all legal mail is entitled
to the same level of confidentiality. See Guajardo-Palma v. Martinson, 622
F.3d 801, 803—04 (7th Cir. 2010); see also Sovereignty Joeseph Helmueller
Sovereign Freeman v. Wilson, No. 23-1962, 2023 WL 8274582, at *1 (7th Cir.
Nov. 30, 2023) (distinguishing between legal mail from a prisoner’s lawyer
and public or nonconfidential documents of a legal nature.) A prisoner
suffers no constitutional harm when public documents that “prison officials
have as much right to read as the prisoner” or “routine and nonsensitive”
nonpublic
documents
are
opened
outside
the
prisoner’s
presence. Guajardo-Palma, 622 F.3d at 804–06 (holding that “as long as the
prison confines itself to opening letters that either are public or if private
still are not of a nature that would give the reader insights into the
prisoner’s legal strategy, the practice is harmless and may be justified by
the volume of such mail that a litigious prisoner can generate”).
Page 5 of 11
Here, Plaintiff alleges that Wiltzius opened his legal mail outside
Plaintiff’s presence. Plaintiff provides that his legal mail was confidential
because it was from a private law firm and contained insight into his legal
defense. The Court notes that it is unclear if the “supervisory writ” sent to
Plaintiff was in draft form or if it was a publicly filed document. At the
screening stage, however, the Court takes Plaintiff’s allegation as true that
the legal mail was indeed private. As such, Plaintiff may proceed on an
access to court claim against Wiltzius for opening Plaintiff’s legal mail.
Second, the Court finds that Plaintiff may proceed on a Fourteenth
Amendment claim for a deprivation of liberty without due process against
Puterbaugh and Doying. 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 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
Page 6 of 11
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)).
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).
Page 7 of 11
Here, Plaintiff alleges that he received ninety days in disciplinary
segregation where the conditions were significantly harsher than in the
normal prison environment. Plaintiff alleges conditions of being locked up
twenty-four hours per day, toilets that did not properly function, and being
housed with a cellmate in a space that was only big enough for one person.
Plaintiff further alleges that he did not receive due process at his
disciplinary hearing because Puterbaugh was not an impartial decision
maker and because no evidence supported Puterbaugh and Doying’s
decision. Again, at the pleading stage and taking Plaintiff’s allegations as
true, the Court finds that Plaintiff may proceed against Puterbaugh and
Doying on a Fourteenth Amendment claim for a deprivation of liberty
without due process.
Finally, the Court finds that Plaintiff may not proceed on a First
Amendment retaliation claim. To prevail on a retaliation claim, Plaintiff
must ultimately show that: “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation likely to deter such activity; and
(3) the First Amendment activity was at least a motivating factor in the
decision to impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996
(7th Cir. 2014). The Seventh Circuit has instructed that the proper question
in determining whether speech is protected is whether the prisoner
“‘engaged in [the] speech in a manner consistent with legitimate
penological interests.’” Whitfield v. Spiller, 76 F.4th 698, 708 (7th Cir. 2023)
(quoting Watkins v. Kasper, 599 F.3d 791, 796 (7th Cir. 2010). The Seventh
Circuit has found that speech is not protected where it is disruptive,
confrontational, or something that violates prison disciplinary policies such
as “back talk.” Id. (quotations omitted).
Page 8 of 11
Here, Plaintiff generally alleges that Wiltzius’s actions were all done
in retaliation to Plaintiff. However, it is not clear to the Court what the
alleged protected activity is in this instance. Plaintiff admits that he initially
responded to Wiltzius’s inquiry about the mail in an angry and
disrespectful tone. As such, Plaintiff’s allegations as currently pled do not
suggest that he had engaged in protected speech so as to invoke the First
Amendment.
3.
CONCLUSION
In light of the foregoing, the Court finds that Plaintiff may proceed
on the following claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: Access to court claim against Wiltzius for opening
Plaintiff’s confidential legal mail.
Claim Two: Fourteenth Amendment claim against Puterbaugh and
Doying for depriving Plaintiff of his liberty without due process.
Defendants should take note that, within forty-five (45) days of
service of this Order, they are to file a summary judgment motion that raises
all exhaustion-related challenges. The Court will issue a scheduling order
at a later date that embodies other relevant deadlines.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to pay the
remainder of the filing fee from his release account, ECF No. 9, be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that under an informal service
agreement between the Wisconsin Department of Justice and this Court, a
copy of the amended complaint and this Order have been electronically
transmitted to the Wisconsin Department of Justice for service on
Defendants Wiltzius, Puterbaugh, and Doying;
Page 9 of 11
IT IS FURTHER ORDERED that under the informal service
agreement, those Defendants shall file a responsive pleading to the
amended complaint within sixty (60) days;
IT IS FURTHER ORDERED that Defendants raise any exhaustionrelated challenges by filing a motion for summary judgment within fortyfive (45) days of service;
IT IS FURTHER ORDERED if Defendants contemplate a motion to
dismiss, the parties must meet and confer before the motion is filed.
Defendants should take care to explain the reasons why they intend to
move to dismiss the amended complaint, and Plaintiff should strongly
consider filing a second amended complaint. The Court expects this
exercise in efficiency will obviate the need to file most motions to dismiss.
Indeed, when the Court grants a motion to dismiss, it typically grants leave
to amend unless it is “certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted.” Harris v. Meisner,
No. 20-2650, 2021 WL 5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015)). Therefore, it is in both parties’ interest to discuss the
matter prior to motion submissions. Briefs in support of, or opposition to,
motions to dismiss should cite no more than ten (10) cases per claim. No
string citations will be accepted. If Defendants file a motion to dismiss,
Plaintiff is hereby warned that he must file a response, in accordance with
Civil Local Rule 7 (E.D. Wis.), or he may be deemed to have waived any
argument against dismissal and face dismissal of this matter with prejudice.
Page 10 of 11
Dated at Milwaukee, Wisconsin, this 28th day of January, 2025.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.
Page 11 of 11
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