United States District Court, E.D. Wisconsin
LARRY D. HARRIS, JR., Plaintiff,
JEREMY WESTRA et al., Defendants.
ADELMAN UNITED STATES DISTRICT JUDGE
Larry D. Harris, Jr., a state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983,
alleging that the defendants violated his civil rights by
placing him in administrative confinement. He has paid the
filing fee in full. This order screens his complaint. I will
allow him to proceed on a procedural due process claim.
of Plaintiff's Complaint
law requires that I screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
I must dismiss a complaint or portion thereof if the prisoner
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. § 1915A(b).
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) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
proceed 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
defendant was acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). I will
give a pro se plaintiff's 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,
who is incarcerated at Waupan Correctional Institution,
alleges that he is being kept in administrative confinement
for reasons not authorized by statute or the Constitution. On
March 10, 2016, plaintiff received a conduct report, CR
#2646884, for “assault of an employee.” Docket
No. 1, at 3. On March 31, 2016, defendant Captain Westra
acted as the hearing officer at plaintiff's hearing. He
found plaintiff guilty and gave him a disposition of 360 days
in disciplinary segregation.
March 27, 2017, plaintiff was placed in temporary lockup
pending an administrative confinement hearing. Plaintiff
received a packet of material on April 5, 2017, that included
a notice of review of administrative confinement, Captain
Tritt's recommendation for plaintiff's initial
placement in administrative confinement, and copies of
several conduct reports, including CR #2646884. The
administrative confinement review committee met on April 12,
2017, and was composed of Captain Westra, serving as hearing
officer, and defendants L. Bonis and C.O. Rosenthal. Bonis
asked plaintiff if he had any criminal charges pending as a
result of the assault on staff incident in CR #26466884, and
plaintiff stated that he did. The review committee concluded
that “the inmate has a very assaultive history with
inmates and staff. It does not matter to him who he attacks.
The inmate had no statement when asked. The committee agrees
that administrative confinement is necessary.”
Id. at 5.
appealed the review committee's decision, arguing that
reliance on Captain Tritt's report violated his due
process and that having Captain Westra participate in the
hearing deprived him of having an impartial decision-maker,
as Westra was the hearing officer for CR #25466884. Defendant
Warden Brian Foster affirmed the committee's decision on
May 26, 2017. Plaintiff appealed Foster's decision to the
DAI, defendant Administrator Weisgerber, who affirmed
Foster's decision. On June 15, 2017, plaintiff filed a
complaint through the prison's inmate grievance system.
He challenged Captain Westra's presence on the review
committee. The complaint was dismissed.
is serving a life sentence. He is not eligible for parole
while on administrative confinement because performance in
prison is a criterion for parole. According to plaintiff,
Wisconsin does not limit how long an inmate can be placed in
administrative confinement. His placement is to be reviewed
every six months. At the time he filed his complaint, he had
been in administrative confinement for nine months. The
conditions of confinement he is subjected to while on
administrative confinement include: extreme isolation; all
meals taken alone in a cell; deprivation of environmental and
sensory stimuli, as well as human contact; only seeing family
visitors over video; confinement to his cell 23 hours per
day; and one hour of exercise per day in a small indoor case
while wearing a restraint device. If he were in general
population, he would be able to leave his cell for school or
work; earn money by working; have human contact and two hours
of exercise, including outdoor recreation; eat meals in a
common area; and not be required to wear a restraint device
outside of the cell.
October 2017, plaintiff received a packet of materials that
included a notice of review of administrative confinement;
Captain Tritt's written recommendation for continued
placement in administrative confinement; copies of conduct
reports, including CR #26466884; and an inmate classification
report. On October 4, 2017, the review committee held
plaintiff's hearing. Captain Westra again served as the
hearing officer, and defendants Ms. Frame and C.O. W.
Schlwaltz also served on the committee. The review committee
unanimously decided to continue plaintiff's placement in
administrative confinement. Plaintiff appealed the decision
and filed another grievance challenging Westra's role on
the review committee. He alleges that he has been placed, and
kept, in administrative confinement because Westra served as
the hearing officer in CR # 26466884. Plaintiff seeks
injunctive relief and monetary damages.
prisoner seeking to bring a procedural due process claim
under § 1983 must show that he is being deprived of a
protected interest in life, liberty, or property.
Wilkerson v. Austin, 545 U.S. 209, 221 (2005). In
some instances, a prisoner may be able to establish a liberty
interest in avoiding time in administrative confinement.
See Earl v. Racine Cnty. Jail, 718 F.3d 689, 691
(7th Cir. 2013). In the prison disciplinary context, due
process requires that the prisoner receive (1) notice of the
charges, (2) the opportunity to present evidence to an
impartial decision-maker; and (3) a written explanation for
the discipline based on evidence in the record. Piggie v.
Cotton, 344 F.3d 674, 677 (7th Cir. 2003).