United States District Court, E.D. Wisconsin
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
PAMELA PEPPER, United States District Judge
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.
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.
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.
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.
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.
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.
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
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.
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 ...