“Our question today is whether the transfer in this case—from one maximum-security facility to another maximum-security facility— was sufficiently adverse.”
How later courts described this case
- “Our question today is whether the transfer in this case—from one maximum-security facility to another maximum-security facility— was sufficiently adverse.”
Written by the judges who cited it.
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 Brown, who is representing himself, filed this civil rights lawsuit against
20 defendants with numerous detailed and intertwining allegations. Dkt. Nos. 1 and 9. On October
26, 2020, the Court screened the amended complaint and allowed Brown to proceed with two
claims: (1) that defendants Ted Serrano, Paul Kemper, Jason Wells, Stephanie Hove, Michelle
Bones, Emily Davidson, and Cindy O’Donnell exposed him to inhumane conditions of
confinement at the Racine Correctional Institution (RCI) and (2) that defendants Kevin Carr and
Kemper transferred him from RCI to Prairie du Chien Correctional Institution (PDCI) in
“retaliation” for his filing a lawsuit in state court about those inhumane conditions of confinement.
Dkt. No. 13 at 5-7. The Court dismissed Brown’s access to the courts claim, as well as his
retaliation claim, against the remaining defendants. Id. at 6-7. Brown has since filed two motions
to reconsider the screening order, both of which also ask for another opportunity to amend the
complaint. See Dkt. Nos. 21 and 23. And the defendants have filed a motion to dismiss Bones,
Davidson, and O’Donnell from the first claim and to dismiss the second claim in its entirety. See
Dkt. No. 16.
Brown’s first motion to reconsider states that he “disagrees with the court’s assessment” in
the screening order and would like to proceed with his access to the courts claim. Dkt. No. 21.
His second motion to reconsider similarly states that would also like to proceed with his retaliation
claim. Dkt. No. 23. The Court will deny the motions because Brown has not identified any
manifest error of law or fact in the screening order. Obriecht v. Raemisch, 517 F.3d 489, 494 (7th
Cir. 2008). Brown simply restates the facts and arguments from his original complaint and states
that the Court (and the defendants) have misunderstood what he wrote. See Dkt. Nos. 21, 23, 25.
But Brown’s mere disagreement with the Court’s analysis of the facts he alleged is not enough to
prevail on a motion to reconsider See Oto v. Metropolitan Life Ins. Co., 224 F.2d 601, 606 (7th
Cir. 2000).
Regarding his requests to amend the complaint again, the Court need not permit a plaintiff
to amend his pleadings where amendment would be futile. See Boyd v. Bellin, No. 20-3087, 2021
WL 479769 (7th Cir. Feb. 10, 2021). Brown’s complaint was thorough in its allegations of the
facts giving rise to his claims, so the Court finds that further amendment would be futile. The
Court advises Brown to move this case forward with the defendants and claims identified in the
screening order. Any further motions to amend the complaint will be summarily denied.
The defendants filed a motion to dismiss Bones, Davidson, and O’Donnell from the first
claim and to dismiss the second claim in its entirety. Dkt. No. 16. They argue that Bones,
Davidson, and O’Donnell are Inmate Complaint Examiners (ICE) who are not liable under §1983
for simply dismissing Brown’s inmate complaints and appeals. See, e.g., Burks v. Raemisch, 555
F.3d 592, 595 (7th Cir. 2009). But Brown alleges more than just denial of his inmate complaints
and appeals. He alleges that these individuals “covered up” the constitutional violations using
their position of authority at the institution. Dkt. No. 9, ¶¶32-33. Brown will ultimately need
evidence to establish this fact—his speculation is not enough—but his allegation is sufficient to
state a claim at this early stage of the litigation.
The defendants also seek to dismiss the second claim in its entirety because transfers within
the same security level are not sufficiently “adverse” to deter a person of ordinary firmness from
continuing to engage in First Amendment protected activity. They cite Holleman v. Zatecky, 951
F.3d 873, 880-82 (7th Cir. 2020) for this proposition and explain that RCI and PDCI are both
“medium-security facilities.” But the defendants overstate the holding of Holleman. The Seventh
Circuit specifically explained that district courts must look into the specific conditions that the
inmate faced at the new institution, not just the general transfer from one institution to a different
institution with the same security classification. Id. at 881 (“Our question today is whether the
transfer in this case—from one maximum-security facility to another maximum-security facility—
was sufficiently adverse.”). The Seventh Circuit noted that a “much more restrictive or dangerous
environment” can be sufficiently “adverse” to implicate the First Amendment. Id. at 882. Brown
alleges that PDCI was “much more oppressive” than RCI for a variety of reasons, including
restrictive movement, library hours, job loss, the “toxic” (and presumably dangerous)
environment, etc. See Dkt. No. 9, ¶35. Again, Brown will ultimately need evidence to establish
that the conditions were sufficiently more oppressive, but the allegation is enough to state a claim
at this early stage of the litigation.
IT IS THEREFORE ORDERED that the plaintiff’s motions to reconsider and to
amend/correct the complaint (Dkt. No. 21 and 23) are DENIED.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss (Dkt. No. 16) is
DENIED.
Dated at Milwaukee, Wisconsin this 17th day of February, 2021.
s/ Brett H. Ludwig
Brett H. Ludwig
United States District Judge