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Alvarado v. Milwaukee County

United States District Court, E.D. Wisconsin

May 10, 2019

RAMON ALVARADO, JR., Plaintiff,
v.
MILWAUKEE COUNTY, et al., Defendants.

          ORDER

          LYNN ADELMAN United States District Judge.

         Ramon Alvarado, Jr., a Wisconsin state prisoner representing himself, filed a lawsuit under 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was a pretrial detainee at the Milwaukee County Jail. He also filed a motion to proceed without prepaying the filing fee. This order grants his motion to proceed without prepayment of the filing fee and screens his complaint.

         Motion to Proceed Without Prepaying the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was a prisoner when he filed this case. 28 U.S.C. § 1915A(c). The PLRA gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the prisoner pay an initial partial filing fee. On February 7, 2019, I ordered the plaintiff to pay an initial partial filing fee of $12.37. He paid that fee on February 21, 2019. Accordingly, I will grant the plaintiff’s motion. He must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         Screening of Plaintiff’s Complaint

         Federal law requires that I screen complaints brought by prisoners and pre-trial detainees 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).

         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) (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).

         To 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, 106 (1976)).

         Plaintiff’s Allegations

         On February 9, 2018, while an inmate at the Milwaukee County Jail, the plaintiff was attacked by two correctional officers. (This is the subject of one of his other lawsuits, 19-C-194.) The plaintiff received a rule violation and had a disciplinary hearing on February 12, 2018. (And this is the subject of another of his lawsuits, 19-C-195.) He received 33 days disciplinary segregation. The plaintiff was also charged criminally, in Milwaukee County No. 18-CF-706. On September 26, 2018, that case was dismissed because the officer involved in the incident refused to testify.

         After he completed his time in segregation, the plaintiff was classified in max custody status. The day after the case was dismissed, September 27, 2018, Defendants Officer Dittenberg and Officer Avery, who work in classification, did not take him off max custody. That evening, he spoke with defendant Captain Briggs and asked to be taken off max custody since the case had been dismissed. Briggs told him that he had “still assaulted an officer.” (Docket No. 1 at 3.) Ultimately, the plaintiff was on max custody for 64 days. During that time, he could not have a pencil in his cell, watch cable television, listen to the radio, read the newspaper, buy commissary food, or have more than five phone numbers to call.

         Analysis

         Inmates have no protectable liberty interest in a particular security classification under the Due Process clause, and the plaintiff does not point to any Wisconsin state policy or regulation that gives rise to a liberty interest. See Kincaid v. Duckworth, 689 F.2d 702, 704 (7th Cir. 1982); Miller v. Henman, 804 F.2d 421, 423 (7th Cir. 1986). But if the restrictions placed on him imposed an atypical and significant hardship (compared to the ordinary incidents of prison life), the plaintiff may proceed. Wilkinson v. Austin, 545 U.S. 209, 223 (2005); Sandin v. Conner, 525 U.S. 472, 484 (1995); Earl v. Racine County Jail, 718 F.3d 689, 691 (7th Cir. 2013) (an inmate’s liberty interest “is affected only if the more restrictive conditions are particularly harsh compared to ordinary prison life or if he remains subject to those conditions for a significantly long time”). Furthermore, as a pretrial detainee, the plaintiff cannot be subjected to punishment, though he has no claim if his security classification was “reasonably related to a legitimate governmental objective.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); Holly v. Wollfolk, 415 F.3d 678, 679– 80 (7th Cir. 2005).

         I find that the conditions the plaintiff faced were not an atypical and significant hardship. In Carthage v. Radtke, 2017 WL 2572375, *3–4 (E.D. Wis. June 14, 2017), the court found that a pretrial detainee’s multiple-year escape risk classification, which lead to unnecessary shackling and restraints, verbal abuse from guards, and needless strip searches and lockdowns, created an atypical and significant hardship. The plaintiff’s allegations are nowhere close to reaching this level (no pencil, TV, radio, newspaper, or commissary food, and only 5 numbers he can call). Furthermore, the plaintiff’s complaint alleges why officials placed him on max custody: he had “assaulted an officer,” even though the criminal case was dismissed. It was not “arbitrary or ...


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