Williams, Joseph v. Werlinger, Robert et al

Filing 12

ORDER Dismissing 1 Complaint pursuant to Fed. R. Civ. P. 8. Amended Complaint due 5/8/2014. Signed by District Judge Barbara B. Crabb on 4/15/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOSEPH A. WILLIAMS,
OPINION AND ORDER
Plaintiff,
13-cv-819-bbc
v.
WARDEN ROBERT WERLINGER,
AW MICHELLE AIRSMAN,
STEVEN ROBINSON and MARK STRIGUZL,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil lawsuit, pro se plaintiff Joseph A. Williams, a prisoner at the Federal
Correctional Institution in Oxford, Wisconsin, contends that his rights were violated when
prison staff members denied him visits and communication with a particular visitor, froze
his prison account and extended the time he was required to spend in segregation. Because
the Oxford prison is located in the Western District of Wisconsin, the District Court for the
Eastern District of Wisconsin concluded that venue was improper under 28 U.S.C. §
1391(b) and transferred the case to this court. Having reviewed plaintiff’s complaint for
screening under 28 U.S.C. § 1915A, I conclude that his complaint must be dismissed for
failing to properly state a claim under Fed. R. Civ. P. 8. However, I will give plaintiff an
opportunity to file an amended complaint.
Plaintiff alleges the following facts in his proposed amended complaint.

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ALLEGATIONS OF FACT
In December 2012, Karyl Masset visited plaintiff in the Oxford prison. Prison staff
allowed her to visit despite the fact that she did not have identification. After that, staff
members removed her name from plaintiff’s list of approved visitors and prohibited him
from receiving visits from her. They have also prohibited plaintiff from communicating with
Masset by phone. Plaintiff says staff members made this decision on the basis of race and
religion because he is African American and she is Caucasian and because when defendant
Steven Robinson told plaintiff about the visitation decision, he also told plaintiff that the
“cross on [his] neck should be burning through [his] shirt.”

In addition, prison staff

members have frozen plaintiff’s accounts and have prolonged his stay in segregation.

OPINION
Prisoners have a protected First Amendment interest in communicating with people
outside the prison. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Rowe v. Shake, 196
F.3d 778, 782 (7th Cir. 1999). Prison restrictions on an inmate’s communication with the
outside world are valid only so long as they are reasonably related to a legitimate penological
interest. Thornburgh, 490 U.S. at 408; Turner v. Safley, 482 U.S. 78, 89 (1987); Lindell
v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). Legitimate penological interests include (1)
deterrence of crime; (2) rehabilitation of inmates; and (3) internal security. Hardaway v.
Kerr, 573 F. Supp. 419, 423 (W.D. Wis. 1983).
Restrictions based on race or religion would not be legitimate penological interests,

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so plaintiff has stated some of the elements of a claim under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which sets out the standard under
which federal government actors can be held liable for constitutional wrongdoing. However,
plaintiff has not identified a responsible defendant. Defendants are not liable under Bivens
merely because they supervised those who allegedly committed wrongful acts or acted as
messengers for those persons. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“[P]urpose
rather than knowledge is required to impose Bivens liability on the subordinate for
unconstitutional discrimination; the same holds true for an official charged with violations
arising from his or her superintendent responsibilities.”).
Rule 8 of the Federal Rules of Civil Procedure requires that plaintiff provide “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Plaintiff has
failed to show that he is entitled to relief because he has not named a defendant who could
be held responsible. Therefore, I will dismiss plaintiff’s claim without prejudice to his
refiling it. If he decides to file an amended complaint, he should identify the particular
defendant or defendants responsible for the decision to deny him visitation and phone calls
from Masset.
Next, it is unclear whether plaintiff is attempting to state a claim for retaliation, on
the theory that his stay in segregation was extended out of retaliation for his protected
conduct, Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002), or whether plaintiff is
attempting to state a due process claim, Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th
Cir. 2013). Plaintiff has failed to state a retaliation claim because he does not explain what

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constitutionally protected conduct he engaged in. Higgs, 286 F.3d at 439. If his claim is
that he was denied the First Amendment right to have a visitor, then he has failed to explain
why he believes his stay in segregation was connected to his visitor. Id.
Plaintiff has also failed to state a due process claim because he has not explained what
he thinks was unconstitutional about the conditions of his confinement or the duration of
his time in segregation. Hardaway, 734 F.3d at 743 (“In assessing whether disciplinary
segregation amounts to a constitutional violation, this court looks to ‘the combined import
of the duration of the segregative confinement and the conditions endured.’”) (quoting
Marion v. Columbia Correctional Institution, 559 F.3d 693, 697 (7th Cir.2009) (emphasis
in original)). Finally, he does not identify the defendant or defendants he thinks were
personally responsible for the constitutional violations.
If plaintiff chooses to amend his complaint to state a retaliation claim, plaintiff must
identify his protected conduct and why he believes his segregation is related to it. If he
chooses to amend his complaint to state a due process claim, he must allege facts about the
length of his stay and the conditions in his segregation unit.
Finally, plaintiff says that his account has been frozen. Plaintiff has a right to due
process in the event he is deprived of his property, which includes his prison account.
Campbell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986) (“It is beyond dispute that Campbell
has a property interest in the funds on deposit in his prison account.”). However, plaintiff
has not explained whether he received notice or some sort of process before or after the
freezing of his account. United States v. Jennings, 210 F.3d 376 (7th Cir. 2000) (“Notice

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and post deprivation grievance procedures are sufficient process to freeze an inmate’s prison
trust account.”). As with his other claims, he does not identify any defendant personally
responsible for the alleged wrong. Without these facts, he has not stated a due process
claim.
Plaintiff has failed to properly state a claim under Fed. R. Civ. P. 8 on any of the
counts in his complaint. Therefore, his complaint must be dismissed but he will have an
opportunity to amend his complaint to state his claim. This amended complaint must
completely replace his previous one, alleging all facts necessary to state his claims and listing
all defendants. If plaintiff chooses to file an amended complaint, he should identify those
defendants he thinks are personally responsible for each claim and he should explain the
reasons and procedures surrounding his stay in segregation and the freezing of his account.

ORDER
IT IS ORDERED that plaintiff Joseph A. Williams’s complaint, dkt. #1, is
DISMISSED for plaintiff’s failure to comply with Fed. R. Civ. P. 8. He may have until May
6, 2014 to file a second amended complaint that complies with the Federal Rules of Civil
Procedure as described in this order. If plaintiff fails to respond by that date, I will dismiss

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the case for his failure to state a claim upon which relief may be granted.
Entered this 15th day of April, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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