Opinion

Brown v. Carr

Court
District Court, E.D. Wisconsin
Filed
Oct 26, 2020
Cited by
0 cases
Authority
More cited than 32.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CALVIN LEE BROWN,

Plaintiff,

v. Case No. 20-cv-0206- bhl

KEVIN CARR, et al.,

Defendants.

ORDER

Plaintiff Calvin Lee Brown, an inmate confined at the Prairie du Chien Correctional

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

his constitutional rights. This order resolves Brown’s motion for leave to proceed without

prepaying the filing fee and screens his amended complaint. It also denies his motion for an

emergency injunction.

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 February 12, 2020, the Court ordered Brown to pay an initial partial filing fee of

$32.05. (ECF No. 5.) Brown paid that fee on March 10, 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.

SCREENING THE COMPLAINT

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 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. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776

(7th Cir. 2015)).

BACKGROUND ALLEGATIONS

Brown purports to sue more than 20 defendants in his 13-page amended complaint. His

allegations fall into three “categories”: (1) allegations about the availability of bathrooms at

Racine Correctional Institution (RCI), where he was previously confined; (2) allegations about

his classification status and prison assignment, including some about retaliation; and (3)

allegations concerning his access to the courts.1 Ordinarily, the Court would ask a plaintiff with

1 The Court notes that Brown cannot bring a claim that relates solely to his classification status or prison assignment.

It is well-established that a prisoner has no protected liberty interest in being assigned a classification or housing

this type of complaint to choose which set of allegations he wants to pursue in this lawsuit and

file an amended complaint that reflects his choice. But, for the reasons the Court will explain

below, only one set of allegations—those concerning bathroom availability— even potentially

state a claim. Rather than asking him to amend, the Court will allow him to proceed on that

claim alone. Brown’s allegations are assumed to be true at this stage and are summarized below.

On December 12, 2017, the bathroom on Brown’s unit was unavailable and, because he

had the urgent need to relieve himself due a “severe medical issue,” he asked the unit officer to

contact the desk officers at Racine’s programs building, in which he was employed in the library,

to obtain permission to use the restroom in that building. (Dkt. No. 6 at 9.) Defendants

Jane/John Doe 1, Jane/John Doe 2, and Officer Aldana denied his request both initially and again

when he asked upon arrival for work. After seeing another prisoner on his way to the restroom

in the program building, Brown made a third request and it, too, was denied. These denials

resulted in Brown urinating and defecating on himself. (Id.)

Brown then filed a complaint, which was forwarded to defendant Officer Serrano and

defendant Warden Kemper to review the bathroom policy. (Id.) After waiting six months,

presumably with no resolution, on June 20, 2018, Brown wrote a letter to Serrano, with a copy to

Deputy Warden Johnson, complaining about the bathroom policy. Serrano called Brown to a

meeting, during which Brown expressed his concerns with the bathroom policy, which he claims

resulted in him soiling himself on “numerous occasions.” (Id.) After seeing no changes, Brown

filed an inmate complaint on June 28, 2018, but Defendant inmate complaint examiner Bones

refused to accept his complaint, reasoning that Deputy Warden Johnson’s office would be

responding to his complaint. (Id. at 6–7.) On July 9, 2018, Brown received a letter from

defendant Jason Wells that detailed and justified the institution’s policy. (Id. at 7.) Brown

responded on July 13 and explained why he believed the policy was unworkable. When he heard

nothing from Wells, he submitted another complaint. Bones returned that complaint, too,

explaining that Wells would be scheduling a meeting with him. Brown never heard from Wells

status. That is, prisoners do not have a constitutional right to be assigned to a particular prison, security

classification, or housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245–46 (1983); Meachum v. Fano,

427 U.S. 215, 225 (1976); Montanye v. Haymes, 427 U.S. 236, 243 (1976). The Court will not summarize all the

allegations related to his classification status and prison transfer because they cannot form the basis of a viable

claim. However, the Court will include those allegations that relate to retaliation

and sent him another letter on September 28, 2018, detailing more incidents in which he had

soiled himself and reiterating the inadequacy of the programs building bathroom policy.

In mid-November, Brown wrote directly to defendant Warden Kemper. (Id. at 8.) He

explained that he was attempting to get the bathroom policy modified and that his complaints

were being ignored. He told Kemper that another inmate had experienced an incident of soiling

himself because of the policy. Brown then filed an inmate complaint on November 20, 2018,

and Bones did not accept his complaint. He then complained about her actions to the corrections

complaint examiner’s office. (Id.)

Brown was leaving his job at the library to use the restroom on December 14, 2018, but

he found that a key was broken off in the lock. (Id.) When he reported the problem to the desk

officer, the officer told him to do the best he could. (Id. at 8–9.) Brown did not make it back to

his cell before soiling himself. (Id. at 9.) He filed a complaint about this incident, too, and

requested an additional bathroom be opened for inmate use. Bones responded that another

inmate restroom would be opening in the near future. Brown appealed his complaint, and he

alleges that Davidson and O’Donnell, whom the Court understands to be involved in the appeal

process, should have intervened when they knew his rights were being violated. (Id.)

In February 2019, Brown was researching how to file a proper certiorari petition

concerning his reclassification. (Id.) He was summoned to the librarian’s office and shown a

pornographic video she found on his account. He was then escorted to a room where he was

interrogated by Lieutenant Launderville, who is not a named defendant. After the interrogation,

he was told he was suspended from his library job and that he could not return to the library for

several days. When he did return, the librarian informed him that defendant Officer Jones

ordered that he had to pack up his materials and exit the library and not return until further

notice. He protested because of his certiorari research. (Id.) Brown was allowed back in the

library on March 13, 2019, but he alleges this was not enough time to prepare a certiorari petition

acceptable to the court, resulting in his petition being dismissed as time barred in late April. (Id.

at 9–10.)

In May 2019, Brown wrote to defendant Carr about the treatment he was receiving and

his belief that officials were violating his constitutional rights. (Id. at 10.) He included

documents and information, including his work evaluations. Defendant Hove responded on

Carr’s behalf, but his letter “addressed absolutely nothing.” (Id. at 11.) That same month,

Brown filed a writ of certiorari challenging the single bathroom policy in Dane County Circuit

Court. (Id. at 10.) Both Kemper and Carr were served, but before the complaint could be

answered, defendants Carr, Hove, Kemper, Wells, Bones, Konitzer, Pawlak, Wiegand, Giernoth,

and “unknown others” had Brown transferred from Racine to Prairie du Chien, a “much more

oppressive” institution, mooting the writ. (Id.)

A. Brown’s Claims Concerning the RCI Bathroom Policy.

Brown complains that RCI’s bathroom policy resulted in inhumane living conditions. To

establish a constitutional violation with respect to prison living conditions, a plaintiff must

allege: (1) the conditions were so adverse that they deprived him “of the minimal civilized

measure of life’s necessities” (the claim’s objective prong) and (2) the defendant acted with

deliberate indifference with respect to the conditions (the claim’s subjective prong). Townsend

v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 832, 834

(1994)). The necessities of life include “reasonably adequate ventilation, sanitation, bedding,

hygienic materials, and utilities.” Gray, 826 F.3d at 1005 (quoting Lewis v. Lane, 816 F.2d

1165, 1171 (7th Cir. 1987)). Although “extreme deprivations are required,” Delaney v. DeTella,

256 F.3d 679, 683 (7th Cir. 2001), and “routine discomfort[s]” do not suffice, Hudson v.

McMillian, 503 U.S. 1, 9 (1992), “[s]ome conditions . . . may establish an Eighth Amendment

violation in combination when each alone would not do so,” and other conditions that may not be

sufficiently serious for a short period of time, “can become an Eighth Amendment violation . . .

if endured over a significant time,” Gray, 826 F.3d at 1005 (citations omitted).

Brown’s complaints about RCI’s bathroom policy arguably rise to the level of an Eighth

Amendment claim. He alleges that he complained about the policy and the impact it had on him

for nearly eighteen months, while experiencing “numerous” incidents of soiling himself. This is

sufficient, at least at the screening stage, to satisfy the objective prong. With respect to the

subjective prong, “[d]eliberate indifference . . . means that the official knew that the inmate faced

a substantial risk of serious harm, and yet disregarded that risk by failing to take reasonable

measures to address it.” Townsend, 522 F.3d at 773. Establishing that an official acted

negligently does not suffice. “Instead, the inmate must show that the official received

information from which the inference could be drawn that a substantial risk existed, and that the

official actually drew the inference.” Id. Brown has alleged that Serrano, Kemper, Bones,

Wells, Hove, Davidson, and O’Donnell all knew about the issues he was experiencing as a result

of the bathroom policy. At screening, this is sufficient to allege that they knew Brown was at a

risk of harm and failed to act to address it. He may proceed against them under the Eighth

Amendment. He may not proceed against Aldana or Jane/John Doe 1 and Jane/John Doe 2

because they were, by the allegations in the complaint, aware of only one isolated incident and

were not aware of his ongoing issues with the single bathroom.

Brown says that he wants to sue the defendants in both their official capacity and their

individual capacity. “Personal-capacity suits seek to impose liability upon a governmental

official for actions he takes under color of state law . . . . Official capacity suits, in contrast,

generally represent only another way of pleading an action against an entity of which an officer

is an agent.” Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991) (quoting Kentucky v.

Graham, 473 U.S. 159, 166 (1985)). However, Brown seeks only monetary relief. (ECF No. 9

at 12.) He is no longer at Racine, so he cannot seek injunctive relief. And for purposes of

obtaining damages rather than injunctive relief, “neither a State nor its officials acting in their

official capacities are ‘persons’ under §1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989). He may therefore proceed against Serrano, Kemper, Bones, Wells, Hove, Davidson,

and O’Donnell in their personal capacities only.

B. Library Access Claims.

Brown also alleges that defendant Jones’ order to keep him out of the prison library

interfered with his ability to access the courts. There is no “abstract, freestanding right to a law

library or legal assistance.” Lewis v. Casey, 518 U.S. 343, 351 (1996). To state a claim for

denial of access to the courts, a plaintiff must demonstrate that his denial of access to the library

or other legal assistance “hindered his efforts to pursue a legal claim.” Id. Brown has alleged

that not being able to access the law library resulted in him filing an untimely certiorari petition

related to his reclassification. However, the Court will not allow Brown to proceed on this

claim.

First, Brown himself says that he was not allowed back in the law library because of

Jones’ order, which was because pornographic material was found on his account. He does not

contest this; he only contests Jones’ decision to bar him from the law library. It appears, then,

that his lack of access to the law library was a consequence of his own actions. Second, Brown

did not have access to the law library for one month—from mid-February to mid-March. He

does not explain why it then took him over another month to file his certiorari petition at the end

of April. This undermines his allegation that it was the month-long bar from the law library that

prevented him from timely filing his petition.

C. Retaliation Claims.

Brown’s final set of allegations concern retaliation. To state a claim under the First

Amendment for retaliation, a plaintiff must allege: “(1) he engaged in activity protected by the

First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3) the First

Amendment activity was at least a motivating factor in the decision to impose the deprivation.”

Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). Brown alleges that he filed a petition for

certiorari—a lawsuit—related to the bathroom issue in May 2019. Brown has the right under the

First Amendment to file his own truthful grievances and lawsuits, and the Court is satisfied that

Brown’s allegation that his transfer to another facility that is far more “oppressive” and without

work opportunities would satisfy the requirement that the deprivation would be likely to deter

future legal activity. As for the final element—that the activity be a motivating factor—Brown

alleges that Carr, Hove, Kemper, Wells, Bones, Konitzer, Pawlak, Wiegand, Giernoth, and

“unknown others” had him transferred from Racine to Prairie du Chien. According to his

complaint, though, only Carr and Kemper were served with his state lawsuit. Through that

allegation, the Court can infer that they knew about the petition and, from there, infer (for

purposes of screening) that the lawsuit motivated them to have Brown transferred. What is not

clear is how Hove, Wells, Bones, Konitzer, Pawlak, Wiegand, Giernoth, and the “unknown

others” would have known about the lawsuit such that it could have been a motivating factor in

having him transferred. The Court will allow Brown to proceed against Carr and Kemper under

the First Amendment but not against any of the other listed defendants.

SCREENING CONCLUSIONS

In sum, the Court is allowing Brown to proceed against defendants Serrano, Kemper,

Bones, Wells, Hove, Davidson, and O’Donnell on an Eighth Amendment claim and against Carr

and Kemper on a First Amendment claim. The Court dismisses the remaining defendants:

Officer Aldana, Jane/John Doe 1, Jane/John Doe 2, Officer Jones, Teresa Wiegan, Gerald

Konitzer, Kristen Pawlak, Michael Giernoth, C. Morrison, L. Krachey, and R. Skime, K.

Merbach, and Mandy Mathson.

Brown also sued the Wisconsin Department of Corrections and Racine Correctional

Institution. But “states and their agencies are not ‘persons’ subject to suit under 42 U.S.C.

§1983.” Johnson v. Supreme Court of Ill., 165 F.3d 1140, 1141 (7th Cir. 1999). This means that

“[n]either the State of Wisconsin nor the State’s Department of Corrections is a proper

defendant.” Andreola v. Wisconsin, 171 F. App’x 514, 515 (7th Cir. 2006). The Court will

dismiss both the DOC and Racine since they are not proper defendants.

MOTION FOR EMERGENCY INJUNCTION

Brown filed a motion asking the Court to issue an injunction prohibiting officials at

Prairie du Chien from denying him adequate access to the institution’s library facilities. (ECF

No. 12.) A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,

555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). A

preliminary injunction is appropriate only if it seeks relief of the same character sought in the

underlying complaint and deals with a matter presented in that underlying complaint. Kaimowitz

v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (citations omitted)); see Peace v. Pollard,

Case No. 15-cv-481, 2017 WL 564016 at *1 (E.D. Wis. Feb. 10, 2017) (citations omitted).

The Court will deny Brown’s motion because it does not deal with a matter presented in

his complaint. Though Brown does make allegations about the law library in his complaint, the

Court did not allow him to proceed on that claim. But even if it had, Brown’s allegations

concern his lack of access to the law library at Racine during a specific period of time. There are

no allegations in his complaint about access to the Prairie du Chien law library. His motion for

injunctive relief is outside the scope of this lawsuit. The Court denies it.

The Court also notes that there is nothing for Brown to do in this lawsuit right now. The

complaint and this order will be transmitted to the defendants for service, at which point they

will have 60 days to answer. Brown has no imminent need in this case to access the law library.

Furthermore, even when preparing or responding to motions, including a motion for summary

judgment, Brown’s need to access the law library will be limited. See Boyd v. Gonzalez, et al.,

18-C-1006, ECF No. 70 (E.D. Wis. Dec. 19, 2019) (“The court is familiar with the law and does

not require [Brown] to explain the legal basis of his claim so much as to indicate which facts

asserted by the defendants are in dispute.”).

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 Brown’s motion for emergency injunctive relief

(ECF No. 12) is DENIED.

IT IS FURTHER ORDERED that defendants Officer Aldana, Jane/John Doe 1,

Jane/John Doe 2, Officer Jones, Teresa Wiegan, Gerald Konitzer, Kristen Pawlak, Michael

Giernoth, C. Morrison, L. Krachey, and R. Skime, K. Merbach, Mandy Mathson, the Wisconsin

Department of Corrections, and Racine Correctional Institution are DISMISSED.

Under an informal service agreement between the Wisconsin Department of Justice and

this court, a copy of the complaint and this order have been electronically transmitted to the

Wisconsin Department of Justice for service on defendants Officer Serrano, Kevin Carr, Paul

Kemper, Michelle Bones, Jason Wells, Stephanie Hove, Emily Davidson, and C. O’Donnell. It

is ORDERED that, under the informal service agreement, those defendants shall file a

responsive pleading to the complaint within 60 days.

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

from his institution trust account the $317.95 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 Brown’s 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 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 the parties may not begin discovery until after the

court enters a scheduling order setting deadlines for discovery and dispositive motions.

IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing

Program institutions2 must submit all correspondence and case filings to institution staff, who

2 The Prisoner E-Filing Program is mandatory for all inmates of Green Bay Correctional Institution, Waupun

Correctional Institution, Dodge Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional

Institution, and Oshkosh Correctional Institution.

will scan and e-mail documents to the court. Plaintiffs who are inmates at all other prison

facilities must submit the original document for each filing to the court to the following address:

Office of the Clerk

United States District Court

Eastern District of Wisconsin

362 United States Courthouse

517 E. Wisconsin Avenue

Milwaukee, Wisconsin 53202

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will

only delay the processing of the matter.

Brown is further advised that failure to make a timely submission may result in the

dismissal of this case for failure to diligently pursue it. In addition, the parties must notify the

Clerk of Court of any change of address. Brown is reminded that it is his responsibility to

promptly notify the court if he is released from custody or transferred to a different

institution. Brown’s failure to keep the court advised of his whereabouts may result in the

dismissal of this case without further notice.

Enclosed is a guide prepared by court staff to address common questions that arise in

cases filed by prisoners. Entitled “Answers to Prisoner Litigants’ Common Questions,” this

guide contains information that Brown may find useful in prosecuting his case.

Dated at Milwaukee, Wisconsin this 26th day of October, 2020.

s/ Brett H. Ludwig

Brett H. Ludwig

United States District 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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