Opinion

Brown v. Thompson

Court
District Court, E.D. Wisconsin
Filed
Aug 31, 2020
Cited by
0 cases
Authority
More cited than 32.5%

“an inmate has no liberty interest in confinement at any particular state prison” and “prison officials may effect discretionary transfers of an inmate without implicating the due process clause”

How later courts described this case

  • “an inmate has no liberty interest in confinement at any particular state prison” and “prison officials may effect discretionary transfers of an inmate without implicating the due process clause”
  • “There is no constitutional mandate to provide educational, rehabilitative, or vocational programs, in the absence of conditions that give rise to a violation of the Eighth Amendment.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

XAVIER O. BROWN,

Plaintiff,

v. Case No. 20-CV-1102

KELLI S. THOMPSON, JENNIFER BIAS,

and JEFFREY CANO,

Defendants.

SCREENING ORDER

Plaintiff Xavier O. Brown, an inmate confined at the Green Bay Correctional

Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that the

defendants violated his civil rights. This order resolves Brown’s motion for leave to

proceed without prepaying the filing fee and screens his complaint.

The court has jurisdiction to resolve Brown’s motion to proceed without

prepaying the filing fee and to screen the complaint, in light of Brown’s consent to the

full jurisdiction of a magistrate judge and the Wisconsin Department of Justice’s

limited consent to the exercise of magistrate judge jurisdiction as set forth in the

Memorandum of Understanding between the Wisconsin Department of Justice and

this court.

1. Motion for Leave to Proceed without Prepaying the Filing Fee

The Prison Litigation Reform Act (PLRA) applies to this case because Brown

was a prisoner when he filed his complaint. See 28 U.S.C. § 1915(h). The PLRA allows

the court to give a prisoner plaintiff the ability to proceed with his case without

prepaying the civil case filing fee. 28 U.S.C. § 1915(a)(2). When funds exist, the

prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He must then

pay the balance of the $350 filing fee over time, through deductions from his prisoner

account. Id.

On July 22, 2020, the court ordered Brown to pay an initial partial filing fee of

$18.40. (ECF No. 6.) Brown paid that fee on August 11, 2020. The court will grant

Brown’s motion for leave to proceed without prepaying the filing fee. He must pay the

remainder of the filing fee over time in the manner explained at the end of this order.

2. Screening the Complaint

2.1 Federal Screening Standard

Under the PLRA, the court must screen complaints brought by prisoners

seeking relief from a governmental entity or 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 the 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)). To state a claim,

a complaint must include “a short and plain statement of the claim showing that the

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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 Atlantic 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 color of state

law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing

Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court

construes pro se complaints 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 Brown’s Allegations

Brown alleges that on October 3, 2018, a criminal complaint was filed in Brown

County Circuit Court charging him with violations of Wisconsin Statutes 943.32(2)

(Armed Robbery, Party to a Crime) and 940.19(1) (Battery, Party to a Crime). (ECF

No. at 1 at 2.) On September 18, 2019, Brown appeared for his initial appearance and

counsel was requested. (Id. at 2-3.) Brown states that he appeared for initial

appearances on October 30, 2019, December 4, 2019, January 15, 2020, February 12,

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2020, and March 18, 2020, and each time the hearing was adjourned and counsel was

not appointed. (Id. at 3.) On April 2, 2020, a public defender was appointed. (Id. at 4.)

Brown alleges that the Wisconsin State Public Defender did not explain the

extreme delay in appointing counsel. The delay allegedly caused undue harm because

a pending case excludes him from participating in prison programming and transfer

to a lesser security facility or any type of lateral transfer, in violation of his

constitutional rights.

Brown states that three lawyers from the Wisconsin State Public Defenders

Office are liable for the delay in the appointment of counsel. Wisconsin State Public

Defender Kelli Thompson allegedly knew or should have known that Brown was

denied appointment of counsel until April 2, 2020, in a criminal case that was filed

on October 3, 2018. Jennifer Bias, the Trial Division Director, is responsible for

assuring the timely appointment of counsel and allegedly failed to do so here. And

Jeffrey Cano, an Attorney Manager who maintains information on all available

attorneys, allegedly ignored Brown’s request for counsel.

For relief, Brown seeks compensatory and punitive damages.

2.3 Analysis

To state a claim under 42 U.S.C § 1983 a plaintiff must allege the deprivation

of a right secured by the Constitution or the laws of United States. Rodriguez v.

Plymouth Ambulance Service, 577 F.3d 816, 822 (7th Cir. 2009). In addition, the

alleged deprivation must have been committed by a person acting under color of state

law, which means the person exercised power “possessed by virtue of state law and

4

made possible only because the wrongdoer is clothed with the authority of state law.”

Id.; West v. Atkins, 487 U.S. 42, 49 (1988) Criminal defense attorneys, including

public defenders, cannot be sued under § 1983 because they do not act under color of

state law; they are the adversary of the State. Polk County v. Dodson, 454 U.S. 312,

318, 325 (1981); see Swift v. Swift, 556 F. App’x 509, 510-11 (7th Cir. 2014); West v.

Atkins, 487 U.S. at 50. Thus, Brown does not state a claim against defendants

Thompson, Bias, and Cano under § 1983.

Even if Brown could sue the defendants under § 1983, he does not have a

constitutional right to participate in prison programming, see Zimmerman v. Tribble,

226 F.3d 568, 571 (7th Cir. 2000) (quoting Garza v. Miller, 688 F.2d 480, 486 (7th Cir.

1982) (“There is no constitutional mandate to provide educational, rehabilitative, or

vocational programs, in the absence of conditions that give rise to a violation of the

Eighth Amendment.”)). Also, prisoners have no liberty interest related to a transfer

“from one institution to another within the state prison system.” Meachum v. Fano,

427 U.S. 215, 225 (1976). The Court of Appeals for the Seventh Circuit has held that

“transfers from one prison to another with a more adverse condition of confinement

do not affect a recognized liberty interest.” Meisberger v. Cotton, 181 F. App’x 599,

600 (7th Cir. 2006); see also King v. Fairman, 997 F.2d 259, 262 n.4 (7th Cir. 1993)

(“an inmate has no liberty interest in confinement at any particular state prison” and

“prison officials may effect discretionary transfers of an inmate without implicating

the due process clause”). Thus, Brown does not state a claim for relief based on not

being transferred to a lesser security prison.

5

Lastly, based on Wisconsin circuit court records it appears that Brown’s

criminal case is ongoing. See State of Wisconsin v. Xavier Octavius Brown, Brown

County Case Number 2018CF001411, available at wcca.wicourts.gov (last visited

August 27, 2020). If Brown is convicted of criminal charges, he might be able to raise

a constitutional speedy trial claim as an issue on appeal of his conviction or in a

federal habeas petition under 28 U.S.C. § 2254. However, he fails to state a claim for

relief under § 1983.

3. Conclusion

THEREFORE, IT IS ORDERED that Brown’s motion for leave to proceed

without prepaying the filing fee (ECF No. 2) is GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED under 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim upon

which relief may be granted.

IT IS FURTHER ORDERED that the Clerk of Court document that Brown

has incurred a “strike” under 28 U.S.C. § 1915(g).

IT IS FURTHER ORDERED that the agency having custody of Brown shall

collect from his institution trust account the $331.60 balance of the filing fee by

collecting monthly payments from Brown’s prison trust account in an amount equal

to 20% of the preceding month’s income credited to his trust account and forwarding

payments to the Clerk of Court each time the amount in the account exceeds $10 in

accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by

the case name and number assigned to this case. If Brown is transferred to another

6

county, state, or federal institution, the transferring institution shall forward a copy

of this Order along with his remaining balance to the receiving institution.

IT IS FURTHER ORDERED that a copy of this order be sent to the officer

in charge of the agency where Brown is confined.

IT IS FURTHER ORDERED that a copy of this order be emailed to

DLSFedOrdersEastCL@doj.state.wi.us.

IT IS FURTHER ORDERED that the Clerk of Court enter judgment

accordingly.

This order and the judgment to follow are final. A dissatisfied party may appeal

this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this

court a notice of appeal within thirty days of the entry of judgment. See Fed. R. of

App. P. 3, 4. This court may extend this deadline if a party timely requests an

extension and shows good cause or excusable neglect for not being able to meet the

thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).

Under limited circumstances, a party may ask this court to alter or amend its

judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment

under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil

Procedure 59(e) must be filed within twenty-eight days of the entry of judgment. The

court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2). Any motion under

Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time,

generally no more than one year after the entry of the judgment. The court cannot

extend this deadline. See Fed. R. Civ. P. 6(b)(2).

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A party is expected to closely review all applicable rules and determine, what,

if any, further action is appropriate in a case.

Dated at Milwaukee, Wisconsin this 31st day of August, 2020.

e &

WILLIAM E. DUFFI

U.S. Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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