United States District Court, E.D. Wisconsin
ADELMAN United States District Judge.
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.
to Proceed Without Prepaying the Filing Fee
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
of Plaintiff’s Complaint
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. §
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,
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.
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.
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).
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