“Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.”
How later courts described this case
- “Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation.”
- “A prisoner has a First Amendment right to make grievances about conditions of confinement.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEE ANTHONY BROWN,
Plaintiff,
v. Case No. 22-cv-10-bhl
DAN CROMWELL, et al.,
Defendants.
ORDER
Plaintiff Lee Anthony Brown, who is confined at the Oshkosh Correctional Institution and
representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that the defendants
violated his civil rights. Dkt. No. 1. On February 16, 2022, the Court screened and dismissed the
original complaint for failure to state a claim upon which relief can be granted. Dkt. No. 7. The
Court concluded that Brown did not have any constitutional claims with respect to his allegation
that his cellmate routinely masturbated as he slept. Id. at 5-6. The Court noted that, while such
acts were unwelcome and bothersome, it did not constitute an objectively serious risk of harm
under the Eighth Amendment. Id. The Court noted that Brown might have a First Amendment
claim based on his assertion that he was transferred to another institution in retaliation for his
Prison Rape Elimination Act (PREA) complaint about his cellmate’s behavior. Id. at 7-8. But
Brown did not provide enough facts from which the Court could draw that inference. Id. The
Court then gave Brown an opportunity to file an amended complaint to identify the following
information with respect to his retaliation claim: (1) who knew about his PREA complaint; (2)
who made the decision to transfer him to a new institution; and (3) the general conditions at his
new institution, i.e., whether the new institution was more restrictive or dangerous such that it
would deter a person of ordinary firmness from filing other PREA complaints in the future. Id.
The Court ordered Brown to file an amended complaint that contained these facts by March 16,
2022, if he wanted to proceed with the case. Id. at 9.
On March 16, 2022, Brown filed an amended complaint. Dkt. No. 8. The amended
complaint does not provide any of the information the Court identified. See id. Brown reiterates
that, in September 2020, he complained to defendants Jaeger, Hall, and Gibbious that his cellmate
kept sexually harassing him by masturbating while he slept. Id. at 3-4. Brown was told to “deal
with it” and “welcome to an all-male prison.” Id. at 3. At some point (it’s unclear when), Brown
filed a PREA complaint regarding his cellmate’s behavior. Id. at 4. In response, someone (it’s
unclear who), moved Brown to segregation to separate him from his cellmate because “there is a
zero tolerance congressional act in place to protect inmates and staff from sexual harassment.” Id.
Three weeks later, someone (again, it’s unclear who) ordered that Brown be transferred to another
institution “under false allegations.” Id. at 4-5. It’s unclear who made these “false allegations” or
what the false allegations were. Id. Brown states that he was not given any notice nor was he
“reclassified” before the transfer. Id. at 5. Brown believes that if he had not filed the PREA
complaint, he would not have been charged with “false allegations” or moved to a different
institution. Id. Brown does not describe the conditions at his new institution. Id. And Brown
does he allege any facts at all about defendants Dan Cromwell, Kevin Carr, Capt. Hoch, or Capt.
Larsen. Id.
To state a retaliation claim, Brown must allege that (1) he engaged in a constitutionally
protected activity; (2) he suffered a deprivation likely to prevent future protected activities; and
(3) there was a causal connection between the two. Holleman v. Zatecky, 951 F.3d 873, 878 (7th
Cir. 2020) (citing Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). Brown has a right to file
a grievance about his cell conditions. See Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010)
(“A prisoner has a First Amendment right to make grievances about conditions of confinement.”)
But Brown must allege that the defendants had actual knowledge of his protected conduct and
acted because of it. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (“It is not enough to show
that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must
cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against
the plaintiff would not have been taken absent the retaliatory motive.”) (internal citations omitted).
Brown must also allege that the deprivations he suffered would likely deter a person of ordinary
firmness from continuing to engage in protected activity. Douglas v. Reeves, 964 F.3d 643, 646
(7th Cir. 2020).
As explained in the prior screening order, Brown does not allege any facts showing that
any of the named defendants knew about his PREA complaint or that any of them were involved
in the decision to transfer him to a new institution. Without these facts, there is no one to attach
personal liability to. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a
cause of action based on personal liability and predicated upon fault; thus, liability does not attach
unless the individual defendant caused or participated in a constitutional deprivation.”). Indeed,
Brown alleges that defendants Jaeger, Hall, and Gibbious knew that the cellmate had an issue with
masturbating in his cell, but there are no allegations that he told these defendants what he would
file a PREA complaint or that any of these defendants were involved in the decision to transfer
him to a different institution. Further, Brown also does not describe the conditions at his new
institution, i.e., whether it was more restrictive or dangerous than his old institution. Without facts
about the conditions at the new institution, the Court cannot infer that transfer to the new institution
would deter a person of ordinary firmness from filing other PREA complaints in the future. Brown
therefore fails to state a claim upon which relief can be granted and the Court will dismiss this
case.
IT IS THEREFORE ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a “strike” under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin on April 7, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
This order and the judgment to follow are final. Plaintiff 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 30 days of the entry
of judgment. See Fed. R. 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 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be non-
meritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain 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 28 days of the
entry of judgment. 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 judgment. The Court cannot extend
these deadlines. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.