“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).
7
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