Austin, David v. Smith, Judy et al

Filing 42

ORDER granting 18 Motion for Reconsideration; denying 19 Motion for Class Status; granting 24 Motion for Leave to File an amended complaint. The amended complaint is the operative pleading in this case. Plaintiff is GRANTED leave to proceed on all claims against defendant Jon Litscher. Signed by District Judge James D. Peterson on 11/22/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DAVID D. AUSTIN II,
Plaintiff,
v.

OPINION & ORDER

JUDY P. SMITH, EDWARD WALL, and
REXFORD SMITH,

15-cv-525-jdp

Defendants.
Pro se plaintiff David D. Austin II filed this suit when he was a prisoner at Oshkosh
Correctional Institution (OCI). He has since been released from prison and is now
represented by counsel. Austin is proceeding on claims that OCI prison officials violated his
constitutional rights. Specifically, Austin says that the plexiglass sheets covering the windows
of all cells in the R-Unit block of OCI cause the cells to be extremely hot and potentially
unsafe. He alleges that defendants are deliberately indifferent to the unreasonable health and
safety risk posed by the permanently closed windows in his cell in violation of the Eighth
Amendment and that sealing the windows in one unit of the prison constitutes arbitrarily
unequal treatment in violation of the Fourteenth Amendment. Before obtaining counsel,
Austin filed a motion for reconsideration of the court’s screening order, Dkt. 18, a motion for
class status, Dkt. 19, and a motion for leave to file an amended complaint, Dkt. 24. As
explained in further detail below, I will grant the motion for reconsideration and motion to
amend the complaint, but I will deny the motion for class status.

A. Motion for reconsideration
Austin has filed a motion for reconsideration of the court’s screening determination
denying him leave to proceed on a due process claim. In particular, I stated the following
regarding this claim:
Plaintiff alleges that defendants violated his Fourteenth
Amendment right to due process by placing him in a cell with
plexiglass covering the windows without first giving him a
hearing. But plaintiff cannot show that he has been deprived of
any liberty protected by the due process clause. Plaintiff could
succeed on this claim if his confinement imposed an “atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S.
472, 484 (1995). Plaintiff was housed in the general population,
and he does not allege transfer to a more restrictive
environment. He alleges only that the plexiglass-covered
windows in R-Unit pose an unhealthy condition of his
confinement. But the coverings did not deprive plaintiff of any
more liberty than general incarceration did. Marion v. Radtke,
641 F.3d 974, 876 (7th Cir. 2011) (“The due process clause
requires hearings when a prisoner loses more liberty than what
was taken away by the conviction and original sentence.”).
Without a liberty deprivation, plaintiff was not due any process
before his placement in R-Unit. He has therefore failed to state a
due process claim.
Dkt. 14, at 5.
In his motion for reconsideration, Austin argues that his complaint does allege that he
was transferred from the general population P-Unit block to a more restrictive environment,
the R-Unit block, without a hearing. In his complaint, Austin also alleges that OCI staff
members transfer inmates they dislike to the R-Unit. And Austin alleges that P-Unit cells
have windows without plexiglass coverings that can be opened by the inmates, whereas RUnit cells have windows with plexiglass coverings.
Upon reconsideration, I will grant Austin leave to proceed on the due process claim.
Transfer from a cell with a window that opens to a dangerously hot cell with a plexiglass

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covering on the window may be a deprivation of liberty requiring due process. Cf. Townsend v.
Cooper, 759 F.3d 678, 686-87 (7th Cir. 2014) (allowing prisoner to bring to trial Eighth
Amendment and due process claims when he presented evidence that he was deprived of
heat, in addition to other deprivations). Austin’s Eighth Amendment and due process claims
are closely intertwined; it is difficult to imagine Austin proving that the heat in R-Unit cells is
an atypical and significant hardship requiring due process but not a denial of “the minimal
civilized measure of life’s necessities” prohibited by the Eighth Amendment. Id. at 687
(quoting Gillis v. Litscher, 468 F.3d 488, 491-92 (7th Cir. 2008)). But Austin has stated a
claim for relief, and so I will allow him to proceed on this claim.
B. Motion for class status
Austin has filed a “motion for class of one status,” asking the court to grant him “class
action status as a class of one.” Dkt. 19, at 1. This confuses “class action” with “class of one.”
Austin may proceed on his equal protection claim under a class of one theory—no motion for
“class of one status” is required. The body of Austin’s motion addresses the requirements for
class status under Federal Rule of Civil Procedure 23(a), so I construe this as a motion for
leave to proceed as a class action. At the time Austin filed this motion, he was not
represented by counsel. As I indicated in the screening order, a pro se litigant cannot fairly
and adequately protect the interests of the class. Austin has since retained counsel and
indicated that he intends to refile a motion for class status. I will dismiss the currently
pending motion without prejudice. Should Austin, through counsel, file a motion for class
status, I will give that motion proper consideration.

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C. Motion for leave to amend
Austin has filed a motion for leave to amend his complaint to (1) include a demand
for jury trial; (2) include a request for punitive damages, (3) sue defendant Edward Wall,
former secretary of the Wisconsin Department of Corrections, in his personal capacity only,
and (4) name Jon Litscher, current secretary of the Wisconsin Department of Corrections, as
a defendant in his official capacity. Dkt. 24. Under Federal Rule of Civil Procedure 15(a)(2),
I “should freely give leave [to amend the complaint] when justice so requires.” This lawsuit is
still in its early stages, and the court has set a scheduling conference to discuss possible
amendments to the scheduling order, so there is no reason to think that defendants would be
prejudiced by these changes. I will grant Austin’s request and accept the amended complaint
as the operative pleading in this case.

ORDER
IT IS ORDERED that:
1. Plaintiff David Austin’s motion for reconsideration, Dkt. 18, is GRANTED.
Plaintiff is GRANTED leave to proceed on his due process claim against
defendants Judy P. Smith, Edward Wall, Rexford Smith, and Jon Litscher.
2. Plaintiff’s motion for class status, Dkt. 19, is DENIED.
3. Plaintiff’s motion for leave to file an amended complaint, Dkt. 24, is GRANTED.
The amended complaint is the operative pleading in this case. Plaintiff is
GRANTED leave to proceed on all claims against defendant Jon Litscher.
Entered November 22, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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