United States District Court, E.D. Wisconsin
DECISION AND ORDER
RUDOLPH T. RANDA, U.S. District Judge.
matter is now before the Court on the plaintiff’s
motions to appoint counsel and for screening of the
plaintiff’s amended complaint pursuant to 28 U.S.C.
16, 2015, another inmate attacked the plaintiff in the
recreation yard at Redgranite Correctional Institution. The
plaintiff believes he was attached because he was falsely
labeled a “snitch” by defendant Terry Sawall in
March 2015. Prior to the attack, the plaintiff expressed
concern for his safety to a number of Wisconsin Department of
amended complaint, the plaintiff once again states Eighth
Amendment failure to protect claims against defendants Terry
Sawall, Michael Meisner, Edward Wall, Steve Schueler, Scott
Eckstein, Ashley Freitag, and Michelle Smith. See Farmer
v. Brennan, 511 U.S. 825, 834, 837 (1991). He also has
identified correctional officers Tom Dobberstein and Brian
Kropp as the defendants he originally named as John Does, who
were guarding the recreation yard during the attack. The
plaintiff may proceed on Eighth Amendment failure to protect
claims against Dobberstein and Kropp.
plaintiff also names several new defendants and asserts new
claims. According to the plaintiff, defendant David Fischer
violated his due process right by interviewing the plaintiff
three times trying to implicate the plaintiff and his
attacker in a conspiracy. The plaintiff does not believe
Fischer was looking out for his best interests and
incriminated the plaintiff instead of protecting him.
However, there is no due process right that protects the
plaintiff from being interviewed. The Court will dismiss
the plaintiff submits that defendant Daniel Schilling
knowingly allowed the plaintiff’s attacker to leave the
unit after an argument about the attacker wanting to return
to maximum security prison. The plaintiff asserts that there
was no institution movement at the time, and the unit was on
minimal movement because canteen was being distributed. The
plaintiff believes that Schilling should have recognized the
danger of the inmate’s tone and not let the attacker
leave the unit (or even should have placed him in a more
controlled status) due to his “hostile state of
mind.” (ECF No. 21 at 8).
state a failure to protect claim, a plaintiff must allege
that (1) “he is incarcerated under conditions posing a
substantial risk of serious harm, ” and (2)
defendant-officials acted with “deliberate
indifference” to that risk. Farmer, 511 U.S.
at 834. It is not plausible that Schilling was deliberately
indifferent to a risk to the plaintiff when he allowed the
attacker to leave the unit angry. There is no suggestion that
Schilling had any reason to believe that the attacker was
planning to harm the plaintiff or would go to the recreation
yard to harm another inmate. The Court will dismiss Schilling
as a defendant.
defendant Andrew Wesner, the plaintiff makes the general
allegation that there was no correctional officer guarding
“main street, ” the main road from the units to
the recreation yard. The plaintiff says that this “post
being unguarded by any correctional officer is a dereliction
by captain Andrew Wesner as the shift supervisor.” (ECF
No. 21 at 6). Once again, this allegation does not rise to
the level of deliberate indifference to the plaintiff. Even
if Wesner was aware that the post was unguarded, it is not
plausible that the post being unguarded meant Wesner was
deliberately indifferent to the plaintiff’s safety as
an inmate in the recreation yard. The Court will dismiss
Wesner as a defendant.
addition to the plaintiff’s Eighth Amendment claims
against the defendants, he alleges that defendants Smith and
Freitag, who are institution complaint examiners, failed to
appropriately investigate his inmate complaints.
plaintiff also suggests that Smith, Freitag, and Meisner
violated his due process rights by not properly handling
complaints of staff misconduct. However, a failure to follow
procedures set by local rules or regulations in itself does
not violate due process. Davenport v. Rodgers, 626
Fed.Appx. 636, 637 (7th Cir. 2015) (citations omitted).
the plaintiff has no due process right to have his complaints
handled according to procedures if they do not implicate a
liberty interest. To establish a procedural due process
violation, a prisoner must demonstrate that the state
deprived him of a liberty or property interest created either
by state law or the Due Process Clause itself. See Sandin
v. Connor, 515 U.S. 472, 483-84 (1995). A liberty
interest exists when prison officials restrain the freedom of
inmates in a manner that “imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at
484. The plaintiff alleges no such restraint of freedom, and
he may not proceed on any due process claims.
the plaintiff asserts that he experienced diverse forms of
retaliation. To state a retaliation claim, a plaintiff must
allege that “(1) he engaged in activity protected by
the First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3)
the First Amendment activity was at least a motivating factor
in the [d]efendants’ decision to take the retaliatory
action.” Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009) (internal quotations omitted). Although the
plaintiff states that he filed complaints on most of the acts
of retaliation and describes those acts, he does not suggest
what exercise of his First Amendment rights led to the
retaliation or who was responsible for some of the alleged
acts of retaliation. The Court will not allow the plaintiff
to proceed any retaliation claims at this time.
MOTIONS TO ...