United States District Court, E.D. Wisconsin
DEBRADRE D. JACKSON, Plaintiff,
ROBIN DIEBOLD, et al., Defendants.
DECISION AND ORDER GRANTING THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 24) AND DISMISSING THE
PAMELA PEPPER United States District Judge.
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.
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.
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.
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. 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.
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.
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.
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
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.
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.
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.
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.
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
¶¶58-59. On September 21, 2016, the plaintiff was