Brim, Fradario et al v. Stevens et al

Filing 22

ORDER granting in part plaintiff Fradario Brim's 12 motion for reconsideration. Plaintiff is GRANTED leave to proceed on specified claims against against defendants Christopher Stevens, Jay Van Lanen, John Kind, William Swiekatowski, Cat hy Francois, Amy Zirbel and Scott Eckstein. Defendants' motion to transfer, Dkt. 14 , is DENIED. Plaintiff's motion for an order allowing him to use a pen, Dkt. 16 , is DENIED. Signed by District Judge James D. Peterson on 6/4/2018. (jef),(ps)

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

FRADARIO BRIM,
Plaintiff,
v.
OPINION & ORDER
CHRISTOPHER STEVENS, JAY VAN LANEN,
WILLIAM SWIEKATOWSKI, JOHN KIND,
SCOTT ECKSTEIN, CATHY FRANCOIS, and
AMY ZIRBEL,

18-cv-24-jdp

Defendants.1
Pro se plaintiff Fradario Brim is a Muslim prisoner incarcerated at the Green Bay
Correctional Institution (GBCI). He is proceeding on claims under the First, Eighth, and
Fourteenth Amendments against defendants, GBCI officials, who he alleges conspired to send
him to disciplinary segregation and administrative confinement because of his religious
practices and his filing of Brim v. Donovan, No. 15-cv-658 (W.D. Wis. filed Oct. 13, 2015).
Several motions are pending before the court. Brim asks me to reconsider several aspects of my
February 28, 2018 order screening his complaint. Dkt. 12. Defendants move to transfer the
case to the Eastern District of Wisconsin. Dkt. 14. Finally, Brim asks me to order defendants
to allow him to use a pen. Dkt. 16. I will grant Brim’s motion for reconsideration in part and
allow him to proceed on substantive due process claims against three defendants. I will deny
the remaining motions.

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I have updated the caption to reflect defendants’ full names.

MOTION FOR RECONSIDERATION
In my February 28 screening order, I denied Brim leave to proceed on a First
Amendment retaliation claim against Rebecca Paulson, the Assistant Attorney General
representing the defendants in the ’658 case. I explained that “[w]ithout factual allegations
indicating Paulson’s involvement” in the allegedly retaliatory transfer to segregation, Brim
could not state a claim against her; Brim’s “speculation” that Paulson “orchestrated” the
transfer was not enough. Dkt. 8, at 6. Brim asks me to reconsider. He argues that his allegation
that Paulson was involved is sufficient, citing Burks v. Raemisch, 555 F.3d 592 (7th Cir. 2009).
Burks concerned a district court’s screening of a prisoner’s deliberate indifference claim.
The prisoner, Burks, alleged that he complained to doctors and nurses in the prison’s medical
unit about his eye condition but was not treated. Burks named as a defendant the director of
the medical unit, but he did not “explain how she came to know of his eye condition.” Id. at
594. The Court of Appeals for the Seventh Circuit held that Burks stated a “plausible”
deliberate indifference claim, which requires allegations that the defendant knew of the eye
condition and consciously disregarded it. Id. The court explained that “knowledge and intent
may be pleaded generally (which is to say, in a conclusory fashion).” Id.
I take Brim to argue that under Burks, his conclusory allegations of Paulson’s retaliatory
intent are sufficient to state a claim. But allegations of Paulson’s intent aren’t what’s lacking—
it’s Paulson’s participation in the adverse action that Brim hasn’t sufficiently alleged. Brim has
not alleged any facts making it likely that Paulson directed GBCI officials to transfer Brim to
segregation. Paulson doesn’t work at GBCI—she’s a lawyer for the Department of Justice—and
there’s no reason to think that she could or would involve herself in administrative decisions
about whether to transfer GBCI inmates to segregation. Compare that to Burks, where the

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defendant’s job was to oversee the prison’s medical unit and the prisoner alleged that another
prison official “told the health unit to send Burks to an ophthalmologist,” making it “likely
that [the director] learned of this directive.” Id. Without additional factual allegations
explaining why Brim believes Paulson directed GBCI officials to transfer Brim to segregation,
I will not allow him to proceed against her.
Brim also asks me to consider allowing him to proceed against defendants Christopher
Stevens, Jay Van Lanen, John Kind, and William Swiekatowski on claims under the
Substantive Due Process Clause of Fourteenth Amendment.
In my February 28 order, I allowed Brim to proceed against Stevens, Van Lanen, and
Kind on First Amendment retaliation claims and Eighth Amendment conditions-ofconfinement claims because he alleged that these three defendants sent him to segregation
under false pretenses in retaliation for his religious practices and legal activity. I allowed him
to proceed against Swiekatowski on an Eighth Amendment conditions-of-confinement claim
and a Fourteenth Amendment procedural due process claim because he alleged that
Swiekatowski voted to place him in segregation for a different reason than the one that was
communicated to him before his hearing. I did not consider any potential substantive due
process claims in my February 28 order, so I will do so now.
“Issuing false and unjustified disciplinary charges can amount to a violation of
substantive due process if the charges were in retaliation for the exercise of a constitutional
right.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). Black provides a narrow exception to
the “general rule that, where another provision of the Constitution provides an explicit textual
source of constitutional protection, a court must assess a plaintiff’s claim under that explicit
provision, rather than through the more generalized lens of substantive due process.” Sheppard

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v. Walker, 2014 WL 2890787, at *1 (W.D. Wis. June 25, 2014) (citing Conn v. Gabbert, 526
U.S. 286, 293 (1999)).
Brim alleges that Stevens and Van Lanen issued false disciplinary charges in retaliation
for the exercise of his First Amendment rights, so he states substantive due process claims
against them. He alleges that Kind adopted a false recommendation for administrative
confinement in retaliation for the exercise of his First Amendment rights. Kind’s alleged actions
don’t fall squarely within Black’s definition the way Stevens’ and Van Lanen’s actions do, but
at the screening stage, I see no reason not to allow Brim to proceed on a substantive due process
claim against Kind, too. But Brim does not allege that Swiekatowski’s actions were retaliatory.
In his motion for reconsideration, he argues only that Swiekatowski’s actions were “unfair and
arbitrary.” Dkt. 12, at 3. Nor does Brim allege that Swiekatowski falsified any findings or even
knew that the basis for the recommendation for administrative confinement was false. Brim’s
allegations concerning Swiekatowski are too far afield to qualify for Black’s narrow exception—
those allegations are best considered under the Eighth Amendment and the Fourteenth
Amendment’s Procedural Due Process Clause. So I will not allow Brim to proceed on a
substantive due process claim against Swiekatowski.

MOTION TO TRANSFER VENUE
Defendants move to transfer this case to the Eastern District of Wisconsin under 28
U.S.C. § 1404(a). Dkt. 14. They contend that transfer to the Eastern District, where Green
Bay is located, is clearly more convenient for the parties and witnesses because the events at
issue occurred there, the parties reside there, and many potential witnesses “are located” there.
Id. at 2.

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Under § 1404(a), a court may transfer a case to another district where the action may
have been brought if transfer serves the convenience of the parties and witnesses and will
promote the interest of justice. See Coffey v. Van Porn Iron Works, 796 F.2d 217, 219–20 (7th
Cir. 1986). “The statute permits a ‘flexible and individualized analysis.’” Research Automation,
Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (quoting Stewart Org.,
Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). The defendants bear the burden of establishing
that the transferee forum is clearly more convenient. Coffey, 796 F.2d at 219. The parties do
not dispute that venue is proper in both the Western District and the Eastern District, so I will
turn directly to the convenience and interest-of-justice inquiries.
The convenience inquiry “generally” focuses on “the availability of and access to
witnesses, and each party’s access to and distance from resources in each forum.” Research
Automation, 626 F.3d at 978. Brim does not dispute that these factors weigh in favor of transfer.
I note, however, that they do not weigh heavily in favor of transfer, as the Western District’s
courthouse is still just a few hours from Green Bay by car. Plus, “[t]he plaintiff’s choice of
forum is usually given substantial weight,” although it “is given less deference ‘when another
forum has a stronger relationship to the dispute.’” Almond v. Pollard, No. 09-cv-335, 2010 WL
2024099, at *2 (W.D. Wis. May 18, 2010) (quoting Amorose v. C.H. Robinson Worldwide, Inc.,
521 F. Supp. 2d 731, 735 (N.D. Ill. 2007)). Brim chose to file in the Western District.
The interest-of-justice inquiry “relates to the efficient administration of the court
system” and focuses on “factors including docket congestion and likely speed to trial in the
transferor and potential transferee forums, each court’s relative familiarity with the relevant
law, the respective desirability of resolving controversies in each locale, and the relationship of
each community to the controversy.” Research Automation, 626 F.3d at 978. “The interest of

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justice may be determinative, warranting transfer or its denial even where the convenience of
the parties and witnesses points toward the opposite result.” Id. Defendants acknowledge that
the Eastern District and Western District share similar caseloads and similar time to trial; both
courts are familiar with the relevant law. They don’t argue the remaining factors. Brim argues
that the interest of justice favor the Western District because the related ’658 case is being
litigated here. Defendants point out that district courts tend to give this factor “little weight.”
See Am. Can Co. v. Crown Cork & Seal Co., 433 F. Supp. 333, 338 (E.D. Wis. 1977). That may
be, but on balance, the interest of justice weighs against transfer: this court is familiar with the
factual background of the case, and transferring the case would result in delays as a new judge
got caught up to speed. Defendants have not met their burden of showing that the Eastern
District is clearly more convenient, so I will deny their motion to transfer venue.

MOTION FOR AN ORDER ALLOWING USE OF A PEN
Brim’s response to defendants’ transfer motion was written in crayon because GBCI
officials recently banned pen inserts from segregation in an “effort to keep sharp objects away
from self-harming inmates.” Dkt. 20, at 1. The same day Brim filed his response through the
prison’s e-filing system, he mailed a motion to the court explaining why his filings were written
in crayon, expressing concern that the prison wouldn’t accept his response for filing because it
was written in crayon, and asking for an “order for permission to use pen for legal work.” Dkt.
16, at 2.
Brim’s response was accepted for efiling and was legible, so the ban on pens is not
impeding his access to the court. Therefore, I have no reason to question GBCI officials’

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discretionary decision to restrict the writing implements available to inmates. I will deny Brim’s
motion.

ORDER
IT IS ORDERED that:
1. Plaintiff Fradario Brim’s motion for reconsideration, Dkt. 12, is GRANTED in part.
2. Plaintiff is GRANTED leave to proceed on the following claims:
a. First Amendment retaliation claims against defendants Christopher Stevens,
Jay Van Lanen, John Kind, and Scott Eckstein.
b. A First Amendment mail censorship claim against defendant Christopher
Stevens.
c. Eighth Amendment conditions-of-confinement claims against defendants
Christopher Stevens, Jay Van Lanen, John Kind, William Swiekatowski,
John Kind, Cathy Francois, and Scott Eckstein.
d. Fourteenth Amendment procedural due process claims against defendants
William Swiekatowski, Cathy Francois, and Amy Zirbel.
e. Fourteenth Amendment substantive due process claims against defendants
Christopher Stevens, Jay Van Lanen, and John Kind.
3. Defendants’ motion to transfer, Dkt. 14, is DENIED.
4. Plaintiff’s motion for an order allowing him to use a pen, Dkt. 16, is DENIED.
Entered June 4, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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