United States District Court, W.D. Wisconsin
EFRAIN CAMPOS, ROBERT WIRTH, JUAN NIETO, and STANLEY NEWAGO, Plaintiffs,
MICHAEL DITTMAN, LINDA ALSUM O'DONOVAN, DAVID KURKOWSKI, LUCAS M. WEBER, KEVIN W. PITZEN, BRAD HOMRE, and CINDY O'DONNELL, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
plaintiffs Efrain Campos, Robert Wirth, Juan Nieto, and
Stanley Newago are inmates in the custody of the Wisconsin
Department of Corrections (DOC) currently housed at the
Columbia Correctional Institution (CCI). They bring this
proposed class action under 42 U.S.C. § 1983 alleging
that defendants, CCI and DOC officials, terminated plaintiffs
from their prison work assignments in retaliation for
plaintiffs' comments during a prison investigation and in
violation of plaintiffs' procedural due process and equal
protection rights. Dkt. 1.
Nieto, and Newago have each paid the filing fee, or initial
partial filing fee ordered by the court, for this lawsuit.
Usually, the next step in the case is to screen the
complaint. But before I do so, I'll address two related
preliminary matters: Wirth's nonpayment of the filing fee
and Campos's motion for reconsideration of the
court's September 15 order on filing fees.
court's September 15 order explained that "each
plaintiff is subject to the Prisoner Litigation Reform Act
and must pay a separate $400 filing fee. . . . [A]lthough
generally 28 U.S.C. § 1914(a) requires only one filing
fee for each case filed, lawsuits filed by prisoners
require one filing fee for each prisoner because 28
U.S.C. § 1915(b) comes into play, a statute that
'specifies a perditigant approach to fees.'"
Dkt. 33, at 1-2 (quoting Borihoune v. Berge, 391
F.3d 852, 856 (7th Cir. 2004)). The order set an October 5
deadline for Campos and Wirth to pay their fees or otherwise
respond to the order. Wirth did not respond. Campos paid his
fee and also filed a motion for reconsideration. Dkt. 35.
Campos argues that Jones v. Bock, 549 U.S. 199
(2007), forbids courts from requiring filing fees from each
prisoner plaintiff in a single case. But Jones
concerns the PLRA's administrative exhaustion
requirement, not filing fees. Jones held that
"when a prisoner has failed to exhaust some, but not
all, of the claims asserted in the complaint . . . the court
should proceed with the exhausted claims." Id.
at 219-20. Jones does not speak to filing fees. For
the reasons stated in the court's September 15 order,
each plaintiff must pay a separate filing fee. Wirth has not
done so, nor has he otherwise responded to the court's
September 15 order, so I will assume that he wishes to
withdraw from this action voluntarily. I will proceed to
screen Campos, Nieto, and Newago's claims.
screening the complaint, I must dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a
defendant who by law cannot be sued for money damages. 28
U.S.C. § 1915A. In screening any pro se litigant's
complaint, the court must read the allegations of the
complaint generously. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). After reviewing the complaint with these
principles in mind, I will give them an opportunity to file
an amended complaint alleging facts showing each
defendant's retaliatory or improper purpose in
also move to proceed as a class action and for appointment of
class counsel. Dkt. 2 and Dkt. 3. I will deny these motions.
the following facts from plaintiffs' complaint. Dkt. 1.
Efrain Campos, Juan Nieto, and Stanley Newago are inmates at
CCI. Until recently, they each worked at the Badger State
Industries (BSI) printing shop within CCI. Approximately 10
other inmates worked in the printing shop too.
January 3, 2017, all BSI employees were placed on Temporary
Lock Up status and could not work pending an investigation
because contraband was found in the BSI shop. (Plaintiffs
don't explain what the contraband was.) Plaintiffs agree
that contraband was found in the BSI shop, but state that the
contraband was found in an area of the BSI shop where they
did not work and that they did not know about the contraband.
January 6, defendants CCI Security Director Lucas M. Weber,
Security Captain Kevin W. Pitzen, and BSI supervisor Dave
Kurkowski summoned the BSI employees to the shop. Four BSI
employees who worked in the area of the shop in which the
contraband was found admitted that the contraband was theirs.
Those four employees received conduct reports, were sent to
segregation for 360 days, and were terminated from their BSI
positions. Plaintiffs were asked if they knew about the
contraband; plaintiffs each said that they did not know about
the contraband and weren't involved with it.
later, plaintiffs were terminated from their BSI positions
because Weber, Pitzen, and Kurkowski believed (without
reason, according to plaintiffs) that they lied about their
lack of knowledge and helped prevent the discovery of the
contraband. Plaintiffs filed grievances complaining about
their termination. Defendants CCI Institution Complaint
Examiner Linda Alsum O'Donovan, CCI Warden Michael
Bittman, DOC Corrections Complaint Examiner Brad Homre, and
Cindy O'Donnell, a designee of the DOC secretary,
reviewed and dismissed plaintiffs' grievances, reasoning
that each plaintiff could have received a conduct
report for "aiding and abetting, " and that
"the only way to ensure the security of the area was to
punish not only the guilty inmates who admitted they did it
and who received conduct reports but also punish the others
by a belief they were aware of what was happening."
Id. at 6.
bring procedural due process, First Amendment retaliation,
and equal protection claims against defendants. ...