United States District Court, W.D. Wisconsin
CHAD J. CONRAD and JEFFREY A. SCHULTZ, JR., Plaintiffs,
JON E. LITSCHER, CAPTAIN LEROY DUNAHAY, JR., and NICHOLAS R. KLIMPKE, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
plaintiffs Chad J. Conrad and Jeffrey A. Schultz are state
prisoners incarcerated at the Jackson Correctional
Institution (JCI). In a September 21, 2017 order, I granted
them leave to proceed on due process and First Amendment
retaliation claims concerning the confiscation of their
personal property by defendants, Wisconsin Department of
Corrections officers. Dkt. 13. Also in that order, I deferred
a decision on whether to allow them to proceed on equal
protection claims. I instructed them to supplement their
complaint explaining what “suspect class” they
are members of. I gave them a deadline of October 11, 2017,
to file their supplement. Plaintiffs have done so, Dkt. 15,
and Conrad has also moved for a preliminary injunction. Dkt.
I will screen plaintiffs' equal protection claims. In
their supplemental complaint, plaintiffs explain that they
are not members of a suspect class, but rather are attempting
to bring class-of-one (or in this case, class-of-two) equal
protection claims. The required elements of such claims are
not entirely clear, as explained in Del Marcelle v. Brown
County Corp., 680 F.3d 887, 891 (7th Cir. 2012)
(affirming dismissal of a class-of-one claim by an evenly
divided court). At a minimum, a class-of-one claim would
require plaintiffs to allege that defendants intentionally
treated them differently from others similarly situated and
that there is no rational basis for the difference in
treatment. It is an open question whether plaintiffs must
also show that the differential treatment was not merely
arbitrary, but motivated by an improper purpose. See
Id. at 893, 899 (Posner, J., plurality opinion);
id. at 917 (Wood, J., dissenting). If the decision
to deprive plaintiffs of their personal property was a
discretionary one, they must allege that defendants possessed
an improper purpose, or “something like animus, or the
lack of justification based on public duties for singling out
the plaintiff.” Id. at 914 (Wood, J.,
dissenting). Even if the decision is not a discretionary one,
plaintiffs may need to allege that defendants intended to
treat them “differently from other persons for reasons
of a personal character, that is, reasons not grounded in his
public duties.” Id. at 893 (Posner, J.,
plurality opinion); see also Brunson v. Murray, 843
F.3d 698, 708 (7th Cir. 2016) (“‘[S]omething
other than the normal rational-basis test applies to
class-of-one claims [challenging non-discretionary acts],
' even if that something has not been clearly
delineated.” (quoting Del Marcelle, 680 F.3d
at 900 (Easterbrook, C.J., concurring)) (citation omitted)).
the complaint generously, plaintiffs allege that Klimpke
intentionally deprived them of their personal property, and
that the other defendants approved of Klimpke's action,
even though other, similarly situated inmates are allowed to
keep similar property and the DAI policy allows for the
possession of such property. Without knowing defendants'
reasons for their actions, I cannot determine whether they
are rational. DeWalt v. Carter, 224 F.3d 607, 613
(7th Cir. 2000) (“[A] court ought not dismiss an equal
protection claim on the basis of reasons unrevealed to the
court.”). I will assume that Klimpke's decisions
were not discretionary. Under the least-demanding formulation
of the class-of-one claim's elements, plaintiffs state a
claim, barely. So I will allow them to proceed on
class-of-one claims against defendants.
now to Conrad's motion for a preliminary injunction. Dkt.
14. He seeks an injunction enjoining defendants from
destroying or transferring his confiscated property pending
the outcome of the suit. Although Conrad has not fully
satisfied the procedural requirements detailed in the
court's administrative order on motions for injunctive
relief, he has verified the truth of the facts contained in
his motion. So I will direct defendants to respond to
Conrad's motion. Defendants' response need not
include a formal statement of proposed facts, but it should
be supported by appropriate declarations and supporting
documentation. After they file their response and Conrad
files his reply, I will determine whether a hearing is
Plaintiffs Chad J. Conrad and Jeffry A. Schultz are GRANTED
leave to proceed on Fourteenth Amendment procedural due
process and equal protection claims against defendants Jon E.
Litscher, Captain LeRoy Dunahay, Jr., and Nicholas R.
Plaintiff Chad J. Conrad is GRANTED leave to proceed on a
First Amendment retaliation claim against defendant Captain
LeRoy Dunahay, Jr.
Defendants must respond to plaintiff's motion for
preliminary injunction, Dkt. 17, by November 15, 2017.
Plaintiff Chad J. Conrad may file a reply by November 27,
 The caption is updated to reflect
defendant Klimpke's full ...