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Campos v. Dittman

United States District Court, W.D. Wisconsin

October 31, 2017

EFRAIN CAMPOS, ROBERT WIRTH, JUAN NIETO, and STANLEY NEWAGO, Plaintiffs,
v.
MICHAEL DITTMAN, LINDA ALSUM O'DONOVAN, DAVID KURKOWSKI, LUCAS M. WEBER, KEVIN W. PITZEN, BRAD HOMRE, and CINDY O'DONNELL, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se 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.

         Campos, 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.

         The 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.

         In 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 terminating them.

         Plaintiffs also move to proceed as a class action and for appointment of class counsel. Dkt. 2 and Dkt. 3. I will deny these motions.

         ALLEGATIONS OF FACT

         I draw the following facts from plaintiffs' complaint. Dkt. 1.

         Plaintiffs 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.

         On 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.

         On 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.

         A week 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.

         ANALYSIS

         Plaintiffs bring procedural due process, First Amendment retaliation, and equal protection claims against defendants. ...


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