Campos, Efrain et al v. Dittman, Michael et al

Filing 58

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 56 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket sheet) (jef),(ps)

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

EFRAIN CAMPOS, JUAN NIETO, and
STANLEY NEWAGO,
Plaintiffs,
v.
OPINION & ORDER
MICHAEL DITTMAN,
LINDA ALSUM O’DONOVAN,
DAVID KURKOWSKI, LUCAS M. WEBER,
KEVIN W. PITZEN, BRAD HOMRE, and
CINDY O’DONNELL,

17-cv-545-jdp

Defendants.
Pro se plaintiffs Efrain Campos, Juan Nieto, and Stanley Newago are inmates in the
custody of the Wisconsin Department of Corrections (DOC) currently housed at the Columbia
Correctional Institution (CCI). They bring this proposed class action under 42 U.S.C. § 1983
alleging that defendants, CCI and DOC officials, terminated plaintiffs from their prison work
assignments in retaliation for plaintiffs’ comments during a prison investigation and in
violation of plaintiffs’ procedural due process and equal protection rights. In an October 31,
2017 order, I reviewed their complaint and concluded that it did not meet the pleadings
requirements of Federal Rule of Civil Procedure 8. Dkt. 36. I offered them an opportunity to
file an amended complaint alleging facts showing each defendant’s retaliatory or improper
purpose in terminating them. I also denied their motion for certification of a class action. I
denied Campos’s renewed motion for class certification in a December 1 order. Dkt. 40.
Now plaintiffs have filed an amended complaint. Dkt. 43. I must screen it and dismiss
any portion that is legally frivolous, malicious, fails to state a claim upon which relief may be

granted, or asks for money damages from a defendant who by law cannot be sued for money
damages, just as I did with the original complaint. Plaintiffs have also renewed their motion
for class certification. Dkt. 42. And Newago has renewed his motion to use release account
funds to pay the remainder of his filing fee. Dkt. 41. I will deny plaintiffs leave to proceed on
their claims, deny the motion for class certification as moot, and deny Newago’s motion to use
release account funds.

ALLEGATIONS OF FACT
I draw the following facts from the amended complaint. Dkt. 43.
Plaintiffs Efrain Campos, Juan Nieto, and Stanley Newago are inmates at CCI. Until
recently, they each worked at the Badger State Industries (BSI) printing shop within CCI.
Approximately 10 other inmates worked in the printing shop too.
On January 3, 2017, all BSI employees at the CCI printing shop were placed on
Temporary Lock Up status and could not work pending an investigation because a “dirty
magazine” and an inmate’s legal materials were found in the BSI shop. Id. at 6. Plaintiffs
concede that these items of contraband were found in the BSI shop, but they state that they
were found in areas of the BSI shop where plaintiffs did not work and that plaintiffs did not
know about the items.
On January 6, defendants CCI Security Director Lucas M. Weber, Security Captain
Kevin W. Pitzen, and BSI supervisor Dave Kurkowski summoned the BSI employees to the
shop. Five BSI employees who worked in the areas of the shop in which the contraband was
found admitted that the contraband was theirs. Those five employees received conduct reports,

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and after due process hearings on the conduct reports, were sent to segregation for 360 days
and terminated from their BSI positions.
Plaintiffs were asked if they knew about the contraband; plaintiffs each said that they
did not know about the contraband and weren’t involved with it. Plaintiffs did not receive
conduct reports, but they were terminated from their BSI positions “because of not knowing
about the contraband.” Id. at 7. Records were placed in each plaintiff’s file indicating that the
termination was “for not assisting other to prevent the discovery of the contraband materials
and they could have received conduct reports for” aiding and abetting. Id. at 8.
Plaintiffs filed grievances complaining about their termination. Defendants CCI
Institution Complaint Examiner Linda Alsum O’Donovan, CCI Warden Michael Bittman,
DOC Corrections Complaint Examiner Brad Homre, and Cindy O’Donnell, a designee of the
DOC secretary, reviewed and dismissed plaintiffs’ grievances. Plaintiffs state that the dismissal
was “because of your first amendment behavior of not knowing anything in the very least
assisted the others to prevent the discovery of the contraband materials and they could have
received a conduct report for aiding and abetting.” Id. at 13.

ANALYSIS
I begin by screening plaintiffs’ claims as stated in their amended complaint.
A. Retaliation claims
As I explained in my October 31 order, a claim for retaliation under the First
Amendment requires allegations of (1) engagement in a constitutionally protected activity; (2)
one or more retaliatory actions taken by defendants that would deter a person of “ordinary
firmness” from engaging in the protected activity; and (3) sufficient facts to make it plausible

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to infer that plaintiffs’ protected activity was one of the reasons defendants took the action
they did against him. Bridges v. Gilbert, 557 F.3d 541, 556 (7th Cir. 2009). The First
Amendment protects telling the truth in response to an investigation, and losing a well-paying
prison job could deter a person of ordinary firmness from telling the truth in the future. But
the original complaint did not include factual allegations raising a plausible connection, so I
directed plaintiffs to submit an amended complaint alleging facts showing that each defendant
caused plaintiffs to lose their jobs because plaintiffs told the truth rather than remain silent.
Plaintiffs’ allegations are confusing, which would be reason enough to dismiss them.
But reading the allegations generously, I take plaintiffs to allege that defendants fired plaintiffs,
and dismissed plaintiffs’ grievances about the firing, simply because plaintiffs told the truth
during the investigation. This is a conclusory allegation and not one that is facially plausible.
Plaintiffs argue that a conclusory allegation of a connection is enough, as long as they have
identified the constitutionally protected activity and the retaliatory act, pointing to Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002). But Higgs relied on the notice pleading standard
articulated in Conely v. Gibson, 355 U.S. 41, 45–46 (1957), which was abrogated by Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 563 (2007). See Swanson v. Citibank, N.A., 614 F.3d 400, 403
(7th Cir. 2010). Now, a complaint must state “a plausible claim for relief.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009); accord Swanson, 614 F.3d at 404 (explaining that under the
plausible-pleading regime, “the plaintiff must give enough details about the subject-matter of
the case to present a story that holds together”).
Plaintiffs point to the lack of a conduct report as support for their conclusion that
defendants terminated them (and dismissed their grievances) because they told the truth
during the investigation, and not because defendants believed that they lied during the

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investigation. If defendants thought plaintiffs were lying, plaintiffs say, they would have issued
each plaintiff a conduct report for lying. But this is not a reasonable inference from the
allegations. Prison officials exercise discretion when disciplining inmates. The lack of a conduct
report does not mean that defendants believed plaintiffs were telling the truth. And the
allegation that defendants said plaintiffs could have received a conduct report indicates that
defendants believed plaintiffs were lying about what they knew about the contraband incident.
So even drawing all reasonable inferences from the allegations in plaintiffs’ favor, plaintiffs’
allegations do not plausibly state a claim under the First Amendment. Defendants would have
been entitled to terminate plaintiffs from the BSI jobs on the basis of a suspicion that plaintiffs
were lying about contraband.
B. Equal protection claims
As I explained in my October 31 order, a class-of-one equal protection claim requires,
at a minimum, allegations that defendants intentionally treated plaintiffs differently from
others similarly situated and that there is no rational basis for the difference in treatment.
Plaintiffs allege that the termination decision was a discretionary one, so they must allege that
defendants possessed an improper purpose, or “something like animus, or the lack of
justification based on public duties for singling out the plaintiff.” Del Marcelle v. Brown County
Corp., 680 F.3d 887, 914 (7th Cir. 2012) (Wood, J., dissenting).
Plaintiffs shift focus from the decision to terminate to the method of termination for
their equal protection claim. They state that defendants terminated them without a conduct
report, whereas the five employees who admitted guilt received conduct reports. This difference
in treatment harmed plaintiffs, because a conduct report comes with specific procedures,
including a “due process” hearing and the right to a staff representative. See Wis. Stat. §§ DOC

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303.83, 303.84. But again, even reading plaintiffs’ allegations generously, there’s no indication
that defendants terminated them without issuing a conduct report (and dismissed their
grievances concerning the method of termination) because they said they didn’t know about the
contraband, unlike the five employees who admitted their guilty knowledge. Rather, the
allegations indicate that defendants terminated plaintiffs without issuing a conduct report for
a legitimate reason: they believed that plaintiffs were lying but didn’t think that plaintiffs took
an active part in the improper conduct. Plaintiffs do not allege an improper purpose or animus,
so they do not state equal protection claims, either.
C. Class certification
Because I am denying plaintiffs leave to proceed, I will deny their motion for class
certification, Dkt. 42, as moot.
D. Filing fee payment
Finally, Newago asks the court to issue an order directing prison officials to allow him
to use funds from his release account to pay the remainder of his filing fee. Dkt. 41. This is the
second time Newago has made this motion, and I will deny it for the same reasons Magistrate
Judge Peter Oppeneer denied the first motion. See Dkt. 33, at 2–3. But I will provide a more
detailed explanation for the denial.
It is up to prison officials to decide how to apply the release-account regulations; federal
courts generally cannot tell state officials how to apply state law. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89 (1984). There is no federal law permitting this court to require
state officials to submit an entire appellate filing fee by accessing a prisoner’s release account
funds. It is only when a prisoner’s general account has insufficient funds to pay an initial partial
filing fee payment that the Prisoner Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b)

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permits this court to order an institution to access a prisoner’s release account funds to satisfy
that payment. See, e.g., Mosby v. Wommack, No. 08-cv-677, 2009 WL 2488011 (W.D. Wis.
Aug. 12, 2009) (“[W]ith the exception of initial partial payments, [federal district courts] do
not have the authority to tell state officials whether and to what extent a prisoner should be
able to withdraw money from his release account.”); see also Artis v. Meisner, No. 12-cv-589,
2015 WL 5749785, at *5–6 (W.D. Wis. Sept. 30, 2015) (“Absent some authority requiring the
prison to disburse [plaintiff’s] release account funds, the court declines to interfere in the
administration of Wisconsin state prisons . . . .”).
Newago points to Spence v. Cook, 222 Wis. 2d 530, 587 N.W.2d 904 (Ct. App. 1998),
which held that prisoner litigations count use release account funds to pay the Wisconsin court
of appeals’ initial partial filing fee. In a footnote, the Spence court noted that it saw “no reason
why other litigation fees and costs within the meaning of § 814.29, STATS., would not be
payable with release account funds.” Id. at 907 n.9. Spence concerned Wisconsin’s version of
the PLRA, not the federal statute at issue in this case. As Newago points out, our sister court
in the Eastern District of Wisconsin has permitted prisoners to pay filing fees from their release
accounts, in reliance on the language of the federal PLRA. See, e.g., Spence v. McCaughtry, 46 F.
Supp. 2d 861 (E.D. Wis. 1999). But this court interprets the language of the federal PLRA
differently. See Carter v. Bennett, 399 F. Supp. 2d 936, 937 (W.D. Wis. 2005) (“[N]othing in
the fee collection provision of § 1915 can be read as requiring the state to allow a prisoner to
pay off the balance of a federal court filing fee from money carried over several months in his
release account . . . .”). So I will deny Newago’s motion because I do not have the authority to
grant access to his release account funds for payment of the remainder of his filing fee. Newago
must continue to pay the remaining balance from his trust account.

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ORDER
IT IS ORDERED that:
1. Plaintiffs Efrain Campos, Juan Nieto, and Stanley Newago are DENIED leave to
proceed on their claims against defendants, and the complaint is DISMISSED with
prejudice for failure to state a claim upon which relief can be granted.
2. Plaintiffs’ motion for class certification, Dkt. 42, is DENIED as moot.
3. Newago’s motion to use release account funds to pay the remainder of his filing fee,
Dkt. 41, is DENIED.
4. The clerk of court is directed to close this case.
Entered February 6, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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