# Brown v. Toney

> District Court, E.D. Wisconsin · May 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10718524

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** May 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LEE ANTHONY BROWN,

Plaintiff,

v. Case No. 22-CV-018

EMIL TONEY, et al.,

Defendants.

DECISION AND ORDER

Plaintiff Lee Anthony Brown, who is representing himself and confined at
Oshkosh Correctional Institution, brings this lawsuit under 42 U.S.C. § 1983. Brown
was allowed to proceed on a Fourteenth Amendment due process claim against
defendants Emil Toney, Hans Kuster, and Eric Norman for allegedly transferring him
to a different institution, keeping him in temporary lockup (TLU), and withholding his
property. The parties filed cross-motions for summary judgment. (ECF Nos. 22, 29.)
They also have consented to the jurisdiction of a magistrate judge. (ECF Nos. 13, 14.)
FACTS
On October 31, 20201, Brown “was subjected to being taken out of his bed [at
Redgranite Correctional Institution (RGCI)] by masked men with guns and placed on
a bus [to Oshkosh Correctional Institution] with no clothes other than a pair of shorts

1 Brown states the transfer happened on October 30, 2020, but both the defendants’
proposed findings of fact and the documents on the record indicate that it actually
occurred on October 31, 2020, so that is the date the court will use.
and slippers.” (ECF No. 36 at 3.) It is undisputed that Brown was transferred to
Oshkosh because RGCI officials believed that on October 30, 2020, he was part of “a
large, organized number of defiant inmates who refused to comply with staff directives
to return to their cell and lock-in from the dayroom.” (ECF No. 31, ¶¶ 6-7.) RGCI
personnel (who are not defendants) made the decision to transfer Brown to Oshkosh.

(Id., ¶ 8.) Defendant Emil Toney, the Security Director at Oshkosh, agreed to accept
prisoners who had been involved in the incident at RGCI. (Id., ¶¶ 2, 8.)
When Brown arrived at Oshkosh he was placed in the Restrictive Housing Unit
(RHU) on TLU status. (ECF No. 31, ¶ 9.) TLU status “is a temporary non-punitive
segregated status” that is not considered a “disciplinary penalty” and “allows an
inmate to be separated from the general population pending further administrative

action,” which is usually an investigation into the prisoner’s alleged wrongdoing. (Id.,
¶ 10.) Because the transfer took place during the height of the COVID-19 pandemic,
Brown was placed in a quarantine cell within the RHU, where for a fourteen-day
period he was confined to his cell. (Id., ¶ 12.)
Brown asserts that his transfer took place “without notice written or oral nor a
reclassification hearing.” (ECF No. 36 at 3.) On November 4, 2020, Brown submitted
an “Interview/Information Request” to Toney inquiring about his transfer and

informing Toney he did not receive a conduct report or TLU order. (ECF No. 31, ¶ 13.)
Toney then spoke with the Security Director at RGCI (unnamed in the record) to get
information to respond to Brown’s Interview/Information Request. (Id., ¶ 14.)

2
After speaking to the RGCI Security Director, Toney responded to Brown,
telling him that he was transferred to Oshkosh for participating in the October 30
disturbance and that RCGI would be issuing him a conduct report. (ECF No. 31, ¶ 14.)
Toney also learned that Brown had not received a Form DOC-67 Notice of Inmate
Placement in Temporary Lockup, which is typically served on a prisoner when placed

on TLU status. (Id., ¶ 15-16.) Toney asked defendant Kuster to complete the DOC-67 .
(Id., ¶ 17.) On November 6, 2020, Kuster prepared the form and served it on Brown,
telling Brown he was receiving it because of his alleged participation in the October 30
incident at RGCI. (Id., ¶¶ 18-19.)Brown was given an opportunity to make a statement
regarding his placement. (Id., ¶ 20.) Brown said he had “no comment” and refused to
sign the form. (Id.)

On November 20, 2020, RGCI issued Conduct Report 133913 to Brown for
disobeying orders, inciting a disturbance, and participating in the October 30 incident.
(ECF No. 31, ¶ 21.) Brown notes that he received the report 21 days after he was
placed in TLU without written or oral notice or a reclassification hearing. (ECF No. 36
at 3.) Brown also states that the conduct report contained false allegations, and he
maintains that he did not participate in the October 30 incident. (Id. at 4.) Kuster
delivered the conduct report to Brown and explained to him the “Uncontested Major

Process,” meaning that, if Brown decided not to contest the conduct report, he could
begin his disciplinary separation sooner. (ECF No. 31, ¶¶ 23-24.) A prisoner who
chooses to contest the conduct report has the opportunity for a hearing. (Id., ¶ 28.)

3
Brown chose to contest the conduct report and submitted an “Inmate’s Request
for Attendance of Witness/Evidence.” (ECF No. 31, ¶ 29.) Non-defendant Nikki
Schewbke reviewed Brown’s request and denied him the opportunity to call two
witnesses—Dominque Thomas and Correctional Officer Harley. (Id., ¶ 30.) Brown
states that he was also denied the opportunity to present video evidence, although he

does not say who denied him this opportunity. (ECF No. 36 at 5.) None of the named
defendants were involved in the decision to deny witnesses or evidence. (ECF No. 31, ¶
31.)
Brown’s hearing took place on November 30, 2020. (ECF No. 31, ¶ 32.)
Defendant Norman was the hearing officer and non-defendant Colleen Janikowski was
the hearing committee member. (Id.) Brown attended the hearing in person. (Id.)

Norman states that he and Janikowski “considered the reporting officers’ narrative in
Conduct Report 133913, video of the incident, and testimony by reporting staff
members and witnesses” and determined that Brown did not lock into his cell and
ignored directives. (Id., ¶ 33.) Norman and Janikowski found Brown guilty of
disobeying orders and participating in the October 30 incident but found him not
guilty of inciting a disturbance. (Id., ¶ 34.) Based on the recommendation from RGCI
staff, Brown received a disposition of 120 days in disciplinary segregation. (Id., ¶35.)

Brown appealed that decision. (ECF No. 31, ¶ 37.) On December 17, 2020, non-
defendant Deputy Warden Zanon returned the case to Norman “for correction of
procedure because reasons for denial of witnesses was not sufficiently documented.”
(Id., ¶ 38.) Although Brown was given an opportunity to present evidence from

4
Thomas and Harley, he indicated that he no longer wanted Thomas to testify. (Id., ¶
39.) Brown provided questions that were given to Harley, who submitted a response.
(Id.)
Norman and Janikowski then reconsidered the evidence along with the new
evidence from Harley. (ECF No. 31, ¶ 40.) They again found Brown guilty of

participating in the October 30 disturbance and disobeying orders. (Id.) On January 6,
2021, Norman delivered a revised “Major Disciplinary Hearing” document to Brown
that reflected the new findings. (Id., ¶ 41.) On January 28, 2021, Brown was released
early from RHU on Toney’s recommendation for good behavior, serving 59 days of his
120-day disposition. (Id., ¶ 42.)
On March 22, 2021, Brown filed Inmate Complaint # 2021-1241 wherein he

complained that he was not aware that a rehearing had taken place. (ECF. 31, ¶ 43.)
The Corrections Complaint Examiner (not a defendant) decided to give Brown a formal
rehearing. (Id.) On May 5, 2021, Norman and Janikowski conducted a formal
rehearing that considered the new evidence. (Id., ¶ 44.) Brown was again found guilty
of participating in a disturbance and of disobeying orders. (Id.)
Brown states that, while he was in TLU and disciplinary segregation in RHU,
he was “in living conditions that fall short of the [Department of Corrections]

standard.” (ECF No. 36 at 6.) Specifically, he states that, while he was housed in the
“covid range” of RHU for approximately 44 days, he was not allowed to clean his cell or
have recreation time. (Id.) He also was not allowed to have access to the prison law

5
library or to have religious materials. (Id.) He also states that he was not allowed
personal pictures, hygiene items like shower shoes, and his legal materials. (Id.)
The defendants assert that Oshkosh records indicate that Brown visited the law
library several times between November 2020 and January 29, 2021, when he was
released from RHU. (ECF No. 31, ¶ 55.) He was also allowed to write and receive

letters, and records indicate that he made phone calls. (Id., ¶ 59.) The defendants
admit that, while Brown was on quarantine status, he was not allowed recreation time
and that there were several times during the end of 2020 where recreation time was
simply cancelled due to COVID spread. (Id., ¶¶ 61-63.) Oshkosh records indicate that
Brown participated in recreation time at least nine times in December 2020 and three
times in January 2021. (Id., ¶¶ 63-64.)

The defendants assert that Brown’s lack of access to his property was largely
caused by RGCI’s decision to suddenly transfer him. (ECF No. 31, ¶ 46.) The Oshkosh
Inmate Handbook explicitly states that upon transfer there will be a delay in accessing
property. (Id., ¶ 48.) When a prisoner is on a temporary hold and has not yet been
formally reclassified, personally property will not be transferred until reclassification
occurs. (Id.) Brown was not reclassified until December 28, 2020, and, because the first
of the COVID-19 stimulus checks had recently been issued, the Department of

Corrections’ property offices were overwhelmed by requests for property orders. (Id., ¶
49.) Brown’s property did not arrive from RGCI to Oshkosh until January 2021, and
Brown received his property on January 29, 2021, when he was released early from
RHU. (Id.¸ ¶¶ 51-52.)

6
SUMMARY JUDGMENT STANDARD
The court shall grant summary judgment if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are

those under the applicable substantive law that “might affect the outcome of the suit.”
See Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id.
In evaluating a motion for summary judgment the court must view all
inferences drawn from the underlying facts in the light most favorable to the

nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). However, when the nonmovant is the party with the ultimate burden of proof
at trial, that party retains its burden of producing evidence which would support a
reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be
of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). To survive summary judgment a party cannot just rely on his
pleadings but “must set forth specific facts showing that there is a genuine issue for

trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on
the record as a whole, a rational trier of fact could not find for the non-moving party.’”
Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner
v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).

7
ANALYSIS
Brown claims that the defendants violated his constitutional rights by placing
him in TLU upon his transfer from RGCI and by not allowing him to present
witnesses and video evidence at his November 30, 2020 hearing, which lead to his
placement in disciplinary segregation in the RHU.

Toney and Kuster were not personally involved in the decision to place Brown in
TLU, nor were they involved in the conduct report hearing. 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 violation.” Hildebrant v. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th
Cir. 2003) (quoting Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996)). Section 1983

makes public employees liable “for their own misdeeds but not for anyone else’s,”
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.2009). The decision to place Brown in
TLU upon his arrival at Oshkosh was made by RGCI personnel, not the defendants,
including Norman.
TLU status is conferred upon a prisoner when there is a pending investigation
into conduct that may require discipline. RGCI staff determined that Brown likely
participated in the October 30 disturbance. If that placement violated Brown’s

constitutional rights, it was RGCI staff who violated them. At most Toney and Kuster
remedied the apparent due process errors made by RGCI staff when they served the
Form DOC-67 on Brown. But fixing the constitutional violations of other state actors
does not transfer liability upon Toney and Kuster. There is also no evidence that

8
Norman participated in the decision to place Brown on TLU status. No reasonable
factfinder could conclude that Toney, Kuster, or Norman were responsible for Brown’s
placement on TLU status. To the extent there is a claim against them for that
placement, it is dismissed.
There is also no evidence that Toney and Kuster participated in the conduct

report hearing that resulted in Brown being placed in segregation or the RHU.
Kuster’s only role was to deliver the conduct report that RGCI issued and explain to
Brown his options on how to proceed. There is no evidence he was responsible for
denying the testimony of witnesses or refusing to admit other evidence. There is also
no evidence that Toney participated in the issuance of the conduct report or the
associated hearing. As such, they cannot be held liable for the Fourteenth Amendment

due process claims because no reasonable factfinder could conclude that they
participated in the alleged constitutional violations. Summary judgment is granted in
their favor.
The only claim that remains is the Fourteenth Amendment claim against
Norman for allegedly hampering Brown’s ability to present witnesses and evidence at
his conduct report hearing and subsequently placing him in disciplinary segregation.
The court notes that Norman did not decide that Brown could not call witnesses—that

decision was made by non-defendant Nikki Schewbke.
“A prisoner challenging the process he was afforded in a prison disciplinary
proceeding must meet two requirements: (1) he has a liberty or property interest that
the state has interfered with; and (2) the procedures he was afforded upon that

9
deprivation were constitutionally deficient.” Scruggs v. Jordan, 485 F.3d 934, 939 (7th
Cir. 2007) (citing Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994)). “Whether a
prisoner has a liberty interest implicated by special confinement relies on whether the
confinement imposed an ‘atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484

(1995)). To determine whether a plaintiff has a liberty interest, courts “look[] to ‘the
combined import of the duration of the segregative confinement and the conditions
endured.’” Id. (quoting Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir.
2009)) (emphasis in original). “Although relatively short terms of segregation rarely
give rise to a prisoner’s liberty interest, at least in the absence of exceptionally harsh
conditions, such an interest may arise from a long term of confinement combined with

atypical and significant hardships.” Id. (emphasis in original). The Court of Appeals
for the Seventh Circuit has noted that “six months of segregation is not such an
extreme term and, standing alone, would not trigger due process rights.” Id. (quoting
Marion, 559 F.3d at 698).
Brown argues that he had a liberty interest that the state interfered with
because, while he was in COVID quarantine, he was not allowed to clean his cell or
leave for recreation time. However, as explained above, his time in COVID quarantine

took place while he was on TLU status, and none of the defendants can be held liable
for those alleged violations because they did not participate in the decision to place
him on TLU status.

10
Thus, the court looks only at his conditions of confinement during his
disciplinary segregation. He was in disciplinary segregation for less than two
months—59 days. The evidence shows that during that time he had access to
recreation time and the law library. He also was able to correspond with friends and
family. Because of the COVID pandemic, his movements were undoubtedly more

restricted than otherwise would have been the case, but the COVID pandemic raised
the bar on what normally would be considered an “atypical and significant hardship.”
During the pandemic, the ordinary incidents of prison life became much harder for all
prisoners, with library time, recreation time, and visitor time being significantly
restricted. Thus, Brown’s limited library time and recreation time do not rise to the
level of an atypical and significant hardship.

Brown also argues that he was deprived of his personal property as a result of
his transfer, which caused his time in segregation to rise to the level of an atypical and
significant hardship. However, again, it appears that due to the COVID pandemic
many prisoners in general population were having issues with the property office
addressing their property issues. (ECF No. 31, ¶ 49.) Also, it is undisputed that Brown
had in his possession hygiene items such as linens, towels, toothpaste, etc. He simply
did not have his personal property from RGCI, such as personal photos, legal

materials and reading materials. Brown’s conditions while in RHU did not rise to the
level of an atypical and significant hardship. And his time in RHU on its own did not
rise to the level of a constitutional violation.

11
Even if Brown did have a liberty interest with regard to his placement in
disciplinary segregation., no reasonable factfinder could conclude that the process he
was afforded was constitutionally deficient. Prison disciplinary hearings satisfy
procedural due process requirements if a prisoner is provided: (1) written notice of the
charge against him twenty four (24) hours prior to the hearing; (2) the right to appear

in person before an impartial body; (3) the right to call witnesses and to present
physical/documentary evidence; and (4) a written statement of the reasons for the
action taken against him. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974). The
decision of the disciplinary hearing board must be supported by “some evidence.”
Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
Brown received advance written notice of the hearing on November 20, 2020. He

also appeared in person; he (eventually) had the right to call witnesses and present
evidence; and he received a written explanation of the disciplinary action taken
against him. Because Brown failed to demonstrate that he had a liberty or property
interest that was implicated by Norman’s actions or that the process he was afforded
was constitutionally deficient, summary judgment is granted in Norman’s favor.
CONCLUSION
For the foregoing reasons the defendants’ motion for summary judgment is

granted and Brown’s motion for summary judgment is denied. The defendants also
argued that they were entitled to qualified immunity, but because the court is
granting summary judgment in their favor on the merits, it does not need address the

12
qualified immunity arguments. Because there are no remaining claims, the case is
dismissed.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the defendants’
motion for summary judgment (ECF No. 29) is GRANTED.

IT IS FURTHER ORDERED that Brown’s motion for summary judgment
(ECF No. 22) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED. The Clerk of
Court will 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 30 days of the entry of judgment. See Federal Rules of
Appellate Procedure 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 Federal Rule of Appellate Procedure 4(a)(5)(A).
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. The court
cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion
under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time,

13
generally no more than one year after the entry of the judgment. The court cannot
extend this deadline. See Federal Rule of Civil Procedure 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.

Dated at Milwaukee, Wisconsin this 11th day of May, 2023.

BY THE COURT

WILLIAM E. DUFFI
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10718524. Public record. Not legal advice.