# Brown v. Wiltzius

> District Court, E.D. Wisconsin · October 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10720507

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** October 23, 2024
- **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

MIQUEL D. BROWN,

Plaintiff,
Case No. 24-CV-915-JPS
v.

JEREMY WILTZIUS,
ORDER

Defendant.

Plaintiff Miquel D. Brown, an inmate confined at Kettle Moraine
Correctional Institution (“KMCI”) filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that Defendant Wiltzius (“Wiltzius”) violated his
constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for
leave to proceed without prepaying the filing fee and screens his complaint.
1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case
because Plaintiff 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. Id.
§ 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 August 9, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $113.51. ECF No. 6. Plaintiff paid that fee on September
13, 2024. The Court will grant Plaintiff’s motion for leave to proceed
without prepaying the filing fee. ECF No. 2. 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 an 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)). 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 Atl. 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 the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County 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 Plaintiff’s Allegations
On February 28, 2024, Wiltzius called Plaintiff to the mail room to
address inconsistencies in the address on his legal mail. ECF No. 1 at 2.
Wiltzius told Plaintiff that his legal mail tested positive for synthetics
cannabinoids. Id. As a result, Wiltzius placed Plaintiff in temporary lock up
(“TLU”). Id. While in TLU, Wiltzius attempted to ask Plaintiff questions;
Plaintiff refused to answer the questions and responded to Wiltzius in an
angry/disrespectful tone. Id.
Wiltzius then retaliated against Plaintiff by filing a bogus conduct
report on Plaintiff. Id. Wiltzius manufactured and fabricated evidence
against Plaintiff by lying about the dates and times that he called Plaintiff
to the mail room and alleging that he opened Plaintiff’s legal mail in front
of him. Id. Wiltzius provided that the incident in the mailroom occurred on
February 27, 2024, and that he opened up Plaintiff’s legal mail in his
presence. Id. Wiltzius lied so that he could try to cover up the fact that he
opened up legal mail outside of Plaintiff’s presence, in violation of
institutional policy and the constitution. Id. at 3.
Wiltzius further retaliated against Plaintiff by lying that the mail
tested positive for synthetics. Id. This was a lie because the test results
showed only that a possible substance was detected. Id. Wiltzius knew that
the test he used often yields a false positive and is less accurate than a
definitive test, which is required to confirm the presence of drugs. Id.
Plaintiff received ninety days disciplinary separation for a violation of DOC
303.43 – Possession of Intoxicants. Id. Wiltzius also manufactured evidence
against Plaintiff by saying that he violated DOC 303.36(A) – Enterprise
Fraud – and DOC 303.49 – Unauthorized Use of Mail. Id. at 3-4. Plaintiff
maintains his innocence for the disciplinary charges against him. Id. at 4.
2.3 Analysis
First, the Court finds that Plaintiff may not proceed on an access to
courts claim for Wiltzius opening his “legal mail” outside his presence. The
Seventh Circuit has clarified that not all legal mail is entitled to the same
level of confidentiality. See Guajardo-Palma v. Martinson, 622 F.3d 801, 803—
04 (7th Cir. 2010); see also Sovereignty Joeseph Helmueller Sovereign Freeman v.
Wilson, No. 23-1962, 2023 WL 8274582, at *1 (7th Cir. Nov. 30, 2023)
(distinguishing between legal mail from a prisoner’s lawyer and public or
nonconfidential documents of a legal nature.) A prisoner suffers no
constitutional harm when public documents that “prison officials have as
much right to read as the prisoner” or “routine and nonsensitive”
nonpublic documents are opened outside the prisoner’s
presence. Guajardo-Palma, 622 F.3d at 804–06 (holding that “as long as the
prison confines itself to opening letters that either are public or if private
still are not of a nature that would give the reader insights into the
prisoner's legal strategy, the practice is harmless and may be justified by
the volume of such mail that a litigious prisoner can generate”).
Here, Plaintiff provides no information regarding the type of legal
mail that was opened outside of his presence. The Court is therefore unable
to determine whether the mail was of a public or private nature, which
necessarily affects the Court’s analysis of the claim. As such, the Court does
not find that Plaintiff’s allegations as currently submitted states a claim.
Plaintiff will be afforded the opportunity to amend his complaint and
provide more detail regarding this claim.
Second, the Court finds that Plaintiff may not proceed on a
Fourteenth Amendment claim for a deprivation of liberty without due
process. 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 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)).
“A prisoner’s liberty interest, and incumbent entitlement to
procedural due process protections, generally extends only to freedom
from deprivations that ‘impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prisoner life.” Lekas v. Briley,
405 F.3d 602, 608 (7th Cir. 2005) (quoting Sandin v. Conner, 515 U.S. 472, 483–
84 (1995)). In the absence of an “atypical and significant” deprivation, the
procedural protections of the Due Process Clause are not triggered. Id.
Disciplinary segregation can trigger due process protections. Marion v.
Columbia Correctional Inst., 559 F.3d 693, 697 (7th Cir. 2009) (citations
omitted). When making the determination whether an inmate is entitled to
such protections, courts analyze “the combined import of the duration of
the segregative confinement and the conditions endured by the prisoner
during that period.” Id. If conditions in segregation are significantly harsher
than those in the normal prison environment, then a liberty interest may
arise even when the duration of the segregation, standing alone, would not
trigger such an interest. Id. at 697–98. On the one hand, “six months of
segregation is ‘not such an extreme term’ and, standing alone, would not
trigger due process rights.” Id. at 698 (quoting Whitford v. Boglino, 63 F.3d
527, 533 (7th Cir. 1995)). On the other end of the spectrum, transfer to a
maximum-security prison and placement in segregated confinement for an
indefinite duration where virtually all sensory and environmental stimuli
are denied, little human contact is permitted, and prisoners otherwise
eligible for parole are disqualified from parole eligibility, taken together,
impose an atypical and significant hardship within the correctional context.
Id. at 697 (citing Wilkinson v. Austin, 549 U.S. 209, 224 (2005)).
Once a liberty or property interest has been invoked, the Court looks
to what process was due. Prison disciplinary hearings satisfy procedural
due process requirements where an inmate is provided: (1) written notice
of the charge against the prisoner 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, but
only when doing so will not unduly jeopardize the safety of the institution
or correctional goals; and (4) a written statement of the reasons for the
action taken against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563–
69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). Not only must
the requirements of Wolff be satisfied, but the decision of the disciplinary
hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d
1395, 1402 (7th Cir. 1994).
Here, Plaintiff’s complaint does not contain facts showing that
Wiltzius interfered with a liberty interest. Plaintiff alleges generally that he
received ninety days in disciplinary segregation as a result of the falsified
conduct report, but he does not elaborate on any of the conditions he
experienced during that time. On these facts alone, the Court cannot
determine that Plaintiff suffered an atypical and significant deprivation. See
Marion, 559 F.3d at 698. Accordingly, based on the allegations in Plaintiff’s
complaint, the Court cannot determine that Plaintiff had a protected liberty
interest. Plaintiff takes issue with Wiltzius violating certain prison policies,
however, “violation of a prison policy alone does not violate the
Constitution….” Schroeder v. Sawall, 747 F. App’x 429, 431 (7th Cir. 2019)
(citing Lewis v. Richards, 107 F.3d 549, 553 n. 5 (7th Cir. 1997); Langston v.
Peters, 100 F.3d 1235, 1238 (7th Cir. 1996)). As such, Plaintiff may not
proceed on a due process claim.
Finally, the Court finds that Plaintiff may not proceed on a First
Amendment retaliation claim. To prevail on a retaliation claim, Plaintiff
must ultimately show that: “(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). The Seventh Circuit has instructed that the proper question
in determining whether speech is protected is whether the prisoner
“‘engaged in [the] speech in a manner consistent with legitimate
penological interests.’” Whitfield v. Spiller, 76 F.4th 698, 708 (7th Cir. 2023)
(quoting Watkins v. Kasper, 599 F.3d 791, 796 (7th Cir. 2010). The Seventh
Circuit has found that speech is not protected where it is disruptive,
confrontational, or something that violates prison disciplinary policies such
as “back talk.” Id. (quotations omitted).
Here, Plaintiff generally alleges that Wiltzisus’s actions were all
done in retaliation to Plaintiff. However, it is not clear to the Court what the
alleged protected activity is in this instance. Plaintiff admits that he initially
responded to Wiltzius’s inquiry about the mail in an angry and
disrespectful tone. As such, Plaintiff’s allegations as currently pled do not
suggest that he had engaged in protected speech so as to invoke the First
Amendment. Plaintiff may amend his complaint in this regard as well if he
wishes to pursue this claim.
The Court will allow Plaintiff the opportunity to file an amended
complaint on or before November 13, 2024. When writing his amended
complaint, Plaintiff should provide the Court with enough facts to answer
the following questions: (1) Who violated his constitutional rights?;
(2) What did each person do to violate his rights?; (3) Where did each
person violate his rights?; and (4) When did each person violate his rights?
Plaintiff’s amended complaint does not need to be long or contain legal
language or citations to statutes or cases, but it does need to provide the
Court and each Defendant with notice of what each Defendant allegedly
did or did not do to violate his rights.
The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should use the spaces on pages two and three to
allege the key facts that give rise to the claims he wishes to bring, and to
describe which defendants he believes committed the violations that relate
to each claim. If the space is not enough, Plaintiff may use up to five
additional sheets of paper.
Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th
Cir. 1998). In Duda, the appellate court emphasized that in such instances,
the “prior pleading is in effect withdrawn as to all matters not restated in
the amended pleading.” Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3. CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the complaint fails to state a claim;
IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before
November 13, 2024. If Plaintiff files an amended complaint by the deadline,
the Court will screen the amended complaint under 28 U.S.C. § 1915A. If
Plaintiff does not file an amended complaint by the deadline, the Court will
dismiss this case based on his failure to state a claim in his original
complaint and will issue him a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $236.49 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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 Plaintiff 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; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 23rd day of October, 2024.
BY THE COURT:

= np
SBYIKG
PEY 4
NY
J.\P. Stadtmaueller
U.S. District Judge

Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, will be required to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

Page 10 of 11

DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10720507. Public record. Not legal advice.