United States District Court, E.D. Wisconsin
BOBBY L. HURST, Plaintiff,
KENOSHA COUNTY JAIL, SHERRIF DAVID BETH, and JOHN DOE, Defendants.
Stadtmueller, U.S. District Judge
Bobby L. Hurst, filed a pro se complaint on March
14, 2018, alleging that his civil rights were violated during
a period of incarceration at the Kenosha County Jail in
September 2017. (Docket #1). Plaintiff was released from
incarceration on March 7, 2018, and now lives at a private
residence in Kenosha, Wisconsin. Before the Court is
Plaintiff's motion to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. (Docket #2). It should be
noted that although Plaintiff seeks redress for conduct that
occurred while he was incarcerated, because he filed the case
when he was not incarcerated, he is not subject to the
provisions of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915A. Olivas v.
Nevada ex rel. Dep't of Corr., 856 F.3d 1281, 1284
(9th Cir. 2017) (the PLRA only applies when the plaintiff is
a prisoner at the time he files the complaint).
order to allow a non-prisoner plaintiff to proceed without
paying the filing fee, the Court must first decide whether
the plaintiff has the ability to pay the filing fee and, if
not, whether the lawsuit is frivolous or fails to state a
viable claim. 28 U.S.C. §§ 1915(a), (e)(2)(B). On
the first question, although the plaintiff need not show that
he is totally destitute, Zaun v. Dobbin, 628 F.2d
990, 992 (7th Cir. 1980), it must be remembered that the
privilege of proceeding in forma pauperis “is
reserved to the many truly impoverished litigants who, within
the District Court's sound discretion, would remain
without legal remedy if such privilege were not afforded to
them, ” Brewster v. N. Am. Van Lines, Inc.,
461 F.2d 649, 651 (7th Cir. 1972).
difficult for the Court to assess Plaintiff's request to
proceed in forma pauperis at this time. This is
because, although he is treated as a non-prisoner for
purposes of this inquiry, he has submitted the form used by
prisoners for seeking in forma pauperis status.
(Docket #2). That form contains only some of the information
the Court needs to assess Plaintiff's financial
circumstances. Importantly, while the form asks questions
about Plaintiff's employment, income, dependents, and
assets, all of this is focused on those matters as they stood
while he was incarcerated. If things have changed since his
release, Plaintiff has not reported them.
the Court will accept from Plaintiff's submissions that
he is disabled, has no assets or employment, and has a minor
son that he supports. On those averments, the Court will
grant him leave to proceed in forma pauperis.
notwithstanding the finding of indigence, the Court must
dismiss any complaint or portion thereof if it has raised
claims that are legally “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Denton v. Hernandez, 504
U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S.
319, 325 (1989); Hutchinson ex rel. Baker v. Spink,
126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the. . .claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). To state a claim, a complaint must contain
sufficient factual matter, accepted as true, “that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint's allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
considering whether a complaint states a claim, courts should
first “identif[y] pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. If there are
well-pleaded factual allegations, the court must then
“assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give a plaintiff's pro
se allegations, “however inartfully pleaded,
” a liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff alleges that he was moved into isolated confinement
in the health services unit (“HSU”) at the
Kenosha County Jail on September 8, 2017 because he had a
“contagious eye condition.” (Docket #1 at 5).
However, later that same day, he was transferred to a
“punitive, disciplinary solitary confinement”
unit, labelled X-5. Id. His cell in X-5 was Spartan,
with only a bunk and sink/toilet, whereas the HSU cell was
much more comfortably arrayed, with a sink/toilet, shower,
desk, phone, television, and enough room to exercise.
was housed there for four days, until September 12, 2017.
Id. During this time, he consistently complained
about not being provided hygiene supplies as required by
Wisconsin regulation and questioned why he was placed in
punitive segregation without a finding of some offense.
Id. One officer offered to look into it, but he
never followed up with Plaintiff. Id. at 5-6. At one
point, another officer told Plaintiff that he was moved
simply because HSU staff needed the room he was in.
Id. Plaintiff asserts that it was a violation of his
constitutional rights for him to be transferred from a
non-punitive, isolated administrative confinement in the HSU
to a punitive, disciplinary, solitary confinement in the X-5
housing unit, without a charge or offense and without a prior
hearing or other process. Id. at 6.
Fourteenth Amendment protects an individual against
deprivation of life, liberty, or property without due process
of law. U.S. Const. Amend. XIV. “Those who seek to
invoke [the Fourteenth Amendment's] procedural protection
must establish that one of those interests is at
stake.” Wilkerson v. Austin, 545 U.S. 209, 221
(2005). An inmate's liberty interest is not affected
unless the conditions of his confinement impose an
“atypical and significant hardship. . .in relation to
the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995). Notably,
“[i]nmates have no liberty interest in avoiding
transfer to discretionary segregation-that is segregation for
administrative, protective, or investigative purposes.”
Id. This is because discretionary, or
administrative, segregation is not considered
“atypical, ” but rather an “ordinary
incident of prison life” that prisoners should
anticipate during their time in prison. Townsend v.
Fuchs, 522 F.3d 765, 771 (7th Cir. 2008). Further,
“even extremely harsh prison conditions may not be so
‘atypical' as to create the liberty interest the
[Supreme] Court contemplated.” Id.
Plaintiff's transfer to the X-5 housing unit, even though
it was less comfortable than his HSU cell, did not implicate
any liberty interest. He was only housed in X-5 for four
days, and the Seventh Circuit has found that similarly harsh
conditions could be endured for up to ninety days without
affecting an inmate's liberty interest. See Marion v.
Columbia Corr. Inst., 559 F.3d 693, 697-98 & n.2
(7th Cir. 2009); Lekas v. Briley, 405 F.3d 602, 612
(7th Cir. 2005). Moreover, it does not matter that Plaintiff
had done nothing wrong, since he concedes that the transfer
was done merely to open up room for others in the HSU.
Temporary administrative transfer is not atypical in a
prisoner's life. Townsend, 522 F.3d at 771.
is akin to the inmate in Earl v. Racine County Jail,
718 F.3d 689, 691-92 (7th Cir. 2013), whose liberty was not
offended by being placed on suicide watch for five days,
despite the fact that suicide watch involved strict
limitations on what the inmate could possess, a demeaning
“suicide-proof gown, ” being served meals on
Styrofoam trays, being kept in in continuous light for the
first 24 hours, and being constantly monitored. The Court of
Appeals said that these conditions, which are no more severe
than what Plaintiff suffered, were “not unusually
harsh.” Id. at 691. Moreover, the Seventh
Circuit noted that the suicide watch was simply too brief to
trigger due-process concerns, even if ...