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Brown v. Kamphuis

United States District Court, E.D. Wisconsin

March 30, 2018

ENNIS LEE BROWN, Plaintiff,
v.
NICOLE KAMPHUIS, M. HILLE, BRIAN FOSTER, TONIA MOON, S. STABB, CINDI O'DONNELL, BRAD HOMPE, MARC CLEMENTS, JON LITSCHER, AND WILLIAM J. POLLARD, Defendants.

         ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT. NO. 14), CONSTRUING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AS A MOTION TO REOPEN AND AMEND, AND GRANTING THAT MOTION (DKT. NO. 15), AND DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT BY MAY 4, 2018

          HON. PAMELA PEPPER, United States District Judge

         Plaintiff Ennis Lee Brown is a Wisconsin state prisoner representing himself. He filed a civil rights complaint alleging that the defendants violated his rights under federal and state law. Dkt. No. 1. On April 26, 2017, the court screened the complaint under 28 U.S.C. §1915A, and dismissed it without prejudice for failure to state a due process claim and for lack of subject matter jurisdiction. Dkt. No. 12 at 14. The plaintiff has filed a motion for reconsideration, dkt. no. 14, and a motion for leave to amend the complaint, dkt. no. 15.

         I. Background Facts

         The complaint alleged that the Waupun Correctional Institution's inmate accounts department illegally took the plaintiff's money, contrary to Wisconsin law, Wisconsin Department of Corrections (DOC) policy, Wisconsin Division of Adult Institutions (DAI) policy, and the plaintiff's judgment of conviction. Dkt. No. 1 at 3. According to the plaintiff, the accounts department erroneously took funds that he'd been given as a gift and used them to pay court obligations, and defendant Kamphuis refused to correct the erroneous use of the funds. Id. at 4.

         The plaintiff also alleged that in 2015 and 2016, Kamphuis denied the plaintiff's request to obtain money from his inmate release account to use to pay his court filing fees, because the plaintiff didn't have a court order allowing him to use release account funds for that purpose. Id. The plaintiff alleged that “[his] family paid the initial filing fees as a result, and [he] was forced to postpone action in the 7th Circuit Court of Appeals as well.” Id. The plaintiff also alleged that in April or May of 2015, and again in February 2016, he asked to use his release account to pay the initial filing fee for a civil suit. Id. at 7. He alleges that in January 2016, Kamphuis began to remove money from his release account to pay court fees, after denying the plaintiff access to it. Id.

         The plaintiff alleged that around July 2016, he tried to obtain a legal loan, but that Kamphuis denied his request because he had spent a large amount of money on canteen purchases. Id. at 4.

         The plaintiff asserted that on July 1, 2016, the secretary of the DOC implemented Act 355, which the plaintiff claimed amended Wis.Stat. §§301.32(1) and 973.20(11) and allowed the DOC to collect 50% of an inmate's funds for restitution. Id. at 5. The plaintiff alleged that while the amended statute discussed the warden's “authority to collect” court obligations, it failed to address Wis.Stat. §973.05(4)(b). Id. The plaintiff said that the DOC then began to take 50% of all funds sent to him or earned by him; he alleged that this was contrary to Wis.Stat. §973.05. Id. The plaintiff claimed that the implementation of Act 355 violated “ex post facto and due process” in his case. Id. He said that he wrote to the inmate accounts department after the July 1, 2016 50% deductions, but that Kamphuis either provided false information or did not respond to the plaintiff's requests. Id.

         The plaintiff alleged that he submitted inmate complaints and other correspondence to the defendants, advising them that his money had been taken contrary to state law. Id. at 5-7.

         The court explained in its screening order that it would not allow the plaintiff to proceed on a due process claim that the defendants allegedly took his money contrary to state law.

The plaintiff alleges that the defendants collected money from his trust account in violation of Wisconsin state law; he is claiming that the defendants' actions were “random and unauthorized.” See Gidarisingh v. Pollard, No. 12-CV-455, 2013 WL 5349114, at *15 (E.D. Wis. Sept. 23, 2013), vacated in part on other grounds, 571 F. App'x 467 (7th Cir. 2014). But as the court has explained, the plaintiff has adequate post-deprivation procedures available to him to address the issue. Because there is “process” available to him, the plaintiff cannot show a deprivation of due process under the Fourteenth Amendment. See Zinermon, 494 U.S. at 126 (“The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process”); see also Morris v. McKeever, 655 F.Supp. 388, 391 (W.D. Va. 1987)(“A suit based on a wrongful act that ignores the existence of a post-deprivation remedy is, in effect, one that considers only partial or unfinished state action.”).

Dkt. No. 12 at 11-12.

         The court also explained that it was not going to allow the plaintiff to proceed on his ex post facto claim.

The plaintiff also claims that the defendants violated “ex post facto” when they applied Act 355 to him. A law violates the ex post facto clause of the United States Constitution only “if it punishes as criminal conduct an act that was innocent when done, or makes more burdensome the punishment for a crime after its commission.” O'Grady v. Libertyville, 304 F.3d 719, 723 (7th Cir. 2002); see also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The plaintiff doesn't allege that Act 355 increased the amount of “applicable costs, surcharges, victim witness surcharge and assessments” increased [sic], only that it changed the manner of collection. See id. at 506 n.3 (the focus of the ex post facto inquiry is whether any change alters the definition of criminal conduct or increases the penalty by which a crime is punishable). Even if the amount of money had increased, it is not ...

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