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Jackson v. Diebold

United States District Court, E.D. Wisconsin

March 22, 2018

ROBIN DIEBOLD, et al., Defendants.


          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights at Racine Correctional Institution (“RCI”). Dkt. No. 1. The court screened the complaint, and allowed the plaintiff to proceed with a Fourteenth Amendment claim that Robin Diebold, Brad Londre, Michael Giernoth and Steven Johnson subjected him to discipline without proper process. Dkt. No. 7 at 6-7. The court noted in the screening order that the plaintiff provided very few facts about how he was “disciplined, ” and that he would need to provide more information to determine whether his “liberty” interest was at stake. Id. at 7. The plaintiff specified that he was disciplined by being forced to participate in a mandatory “Behavior Modification Program.” Dkt. No. 32 at 2-3. The defendants have filed a motion for summary judgment. Dkt. No. 24. The court will grant that motion.

         I. Factual Background[1]

         The plaintiff is an inmate at RCI. Dkt. No. 26, ¶1. The defendants are, or were, DOC employees who worked at RCI: Steven Johnson is Deputy Warden, id. at ¶9; Brad Londre is a lieutenant who supervises all correctional officers on an assigned shift, id. at ¶¶2-3; Robin Diebold is unit manager in Ozaukee Unit, id. at ¶4; and Michael Giernoth is a former captain who supervised the Restrictive Housing Unit (“RHU”), id. at ¶¶6-8.

         The plaintiff was housed in a “general population” unit called Ozaukee Unit. Id. at ¶14. On June 26, 2016, a prescription medication called Gabapentin went missing from a medicine cabinet near the officer's station in Ozaukee Unit. Id. at ¶ 13. Londre and Diebold watched security camera footage and saw several inmates, including the plaintiff, near the officer's station and medicine cabinet. Id. at ¶¶15-16. According to Londre and Diebold, it appeared that some inmates were districting unit staff while the plaintiff leaned over and grabbed something from the medicine cabinet. Id.

         Based on what Londre and Diebold saw in the video, they decided to place all of the inmates they saw on the video in Temporary Lock-Up (“TLU”) pending an investigation into the missing prescription medication.[2] Id. at ¶17. Both parties agree that TLU is “non-punitive, ” and is used for investigating major offenses, such as theft of prescription medication. Id. at ¶¶22-25; Dkt. No. 34 at ¶¶22-25. Both parties also agree that TLU is not “disciplinary, ” even though an inmate's property rights may be limited while he's there. Dkt. Nos. 26 at ¶¶22-23; 34 at ¶¶22-23. The parties do not dispute any aspect of the plaintiff's placement in TLU. Dkt. No. 32 at 2.

         Once the inmates were placed in TLU, Diebold began her investigation to determine who was involved in the theft. Dkt. No. 26 at ¶37. She reviewed security video footage and talked to other inmates and unit staff. Id. at ¶38. Diebold could not definitely conclude that the plaintiff had taken the medication, because the security video footage was not of good quality. Id. at ¶39. As a result, she did not give the plaintiff a conduct report for the incident. Id. at ¶40.

         On July 5, 2016, after Diebold had completed her investigation, prison staff released the plaintiff from TLU. Id. at ¶41. Diebold, Giernoth, Johnson and another officer had a discussion about where to transfer the plaintiff after TLU. Id. at ¶¶48, 101. According to the defendants, one option was the “Green Unit, ” which serves as an intermediary between general population and RHU. Id. at ¶¶43-44, 46. Inmates may be placed in Green Unit as a “step down” from RHU, or alternatively, may be placed in Green Unit to prepare for placement in RHU. Id. at ¶44. According to the plaintiff, another option was to take him back to Ozaukee Unit, where he had been housed before the incident. Dkt. No. 32 at 2.

         The parties agree that Green Unit is called a “general population” unit. No. 26 at ¶43; see also Dkt. No. 34 at ¶43. According to the defendants, because Green Unit is a part of the general population unit, it is not disciplinary and no hearing is required prior to transfer there. Id. at ¶¶46, 72. The plaintiff disputes this, asserting that although Green Unit is “labeled” a “general population” unit, “in reality it is disciplinary.” Dkt. No. 34 at ¶¶41, 43, 46; see also dkt. no. 35 at ¶3.

         The parties also agree on the conditions of confinement in Green Unit. Dkt. No. 26 at ¶¶76-85; see also Dkt. No. 34 at ¶¶76-85. Inmates receive a yellow uniform that they must wear at all times while out of their cells. Id. at ¶¶76, 88-90. While in their cells, inmates can wear personal clothing. Id. at ¶¶88-90. All personal property is inventoried and delivered within three business days of arriving in Green Unit. Id. at ¶ 76. Inmates are allowed free movement, meaning they are not restrained or under guard escort when out of their cells. Id. at ¶80. Inmates have access to the day room, which has a telephone, television, cards, games and reading and writing materials. Id. at ¶¶81-82.

         According to the plaintiff, the Green Unit's “Behavior Modification Treatment” program converts it from a “general population” unit to “disciplinary status.” Dkt. No. 34 at ¶72. The plaintiff does not describe what he had to do as a part of the “Behavior Modification Treatment” program, but he states that it is a “level system” where “inmates . . . have to participate in programming to advance from level A, B and C.” Dkt. No. 32 at 3-4. The plaintiff compares the Green Unit's “level” program with the RSU's “step” program, where inmates similarly have to participate in programming to advance from step 1 to steps 2 and 3. Id. He characterizes each of the programs as “[p]unitive in that with each step earned you have to earn back a privilege they arbitrarily took from you.” Id. at 4.

         The defendants indicate that the Behavior Modification Treatment program is used for inmates who disregard rules or “have had trouble adjusting to the correctional setting.” Dkt. No. 26 at ¶¶45, 71. The level system, they say, “rewards participation in programming and demonstration of pro-social behavior.” Id. at ¶¶73, 86. Participation in the program determines the length of stay in Green Unit and the level of privileges allowed. Id. at ¶75. In level A, inmates have the following rules and privileges: one indoor recreation per day, one outdoor recreation per day, four hours in the dayroom, no electronics, and no personal clothing out of cell (must year yellow at all times when out of cell). Id. at ¶88. In level B, inmates get all of the above and an additional outdoor recreation period. Id. at ¶89. In level C, inmates get all of the above, an additional indoor recreation period, access to electronics and two additional hours in the dayroom. Id. at ¶90.

         Diebold, Giernoth, Johnson and the other officer decided to transfer the plaintiff to Green Unit after TLU. Id. at ¶¶48, 101. They thought Green Unit was the best option given the plaintiff's history of non-compliance with prison rules. Id. at ¶52. The plaintiff had received nine conduct reports since transfer to RCI in February 2015. Id. They also believed that transfer to Green Unit would serve as a “fresh start, ” so that the plaintiff would be separated from inmates who may have encouraged behavior that led to his past TLU placements. Id. at ¶51. The plaintiff, on the other hand, says that there was “no reason” for him to be restricted from “normal [general population] privileges, ” or for him to have to earn those privileges back. Dkt. No. 32 at 3. He notes that there is no formal report or findings on what factors Diebold, Giernoth, Johnson and the other officer considered before placing him in Green Unit. Dkt. No. 34 at ¶49; see also Dkt. No. 35 at ¶5. He also points out that the four other inmates allegedly involved in the incident also were sent to Green Unit, which means that he was not separated from them. Dkt. No. 35 at ¶6.

         On July 8, 2016, a few days after the plaintiff's transfer to Green Unit, he spoke with Johnson and told Johnson that he thought his placement in Green Unit was disciplinary because Green Unit was similar to RHU. Dkt. No. 26 at ¶¶55-56. Johnson told the plaintiff that Green Unit was not disciplinary, because he could freely leave his cell and did not have to be restrained or under guard escort for movement. Id. at ¶57. The plaintiff then wrote a letter to Johnson regarding the same issue, and Johnson responded with the same answer. Id. at ΒΆΒΆ58-59. On September 21, 2016, the plaintiff was ...

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