United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Jermaine White, who is incarcerated at John C. Burke
Correctional Center, proceeds in this matter pro se.
He filed a complaint alleging that Defendants violated his
civil rights. (Docket #1). This matter comes before the Court
on Plaintiff's petition to proceed without prepayment of
the filing fee, or in forma pauperis. (Docket #2).
Plaintiff has been assessed and has paid an initial partial
filing fee of $24.97. See 28 U.S.C. § 1915(b).
Court must screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
"Malicious," although sometimes treated as a
synonym for "frivolous," "is more usefully
construed as intended to harass." Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a "short
and plain statement of the claim showing that [he] is
entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only "give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
"labels and conclusions" or a "formulaic
recitation of the elements of a cause of action will not
do." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, "that is plausible on its face."
Id. (quoting Twombly, 550 U.S. at 570).
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations "must be enough to raise a right to relief
above the speculative level." Twombly, 550 U.S.
at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
"identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth." Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, "assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Id.
state a claim for relief 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 deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The Court is obliged
to give the plaintiff's pro se 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,
alleges that various employees at the institution where he is
confined, and the Wisconsin Department of Corrections
generally, denied him due process under the Fourteenth
Amendment. (Docket #1). Specifically, he lost his prison job,
was subject to discipline including segregated confinement,
and was reclassified to a higher security level all because
of an allegedly false-positive drug screen. Id.
Defendants participated in various stages of the testing and
discipline processes, and Plaintiff says they botched those
processes in many ways. Id. Plaintiff seeks money
damages and injunctive relief. Id.
fails to state a viable cause of action for denial of due
process. Such a claim requires Plaintiff to show "that
the State deprived him of a protected liberty or property
interest and that the deprivation occurred without adequate
due process." Salas v. Wis. Dep't of Corr.,
493 F.3d 913, 926-27 (7th Cir. 2007). Courts have held that
prisoners do not have protected interests in their prison
jobs, Starry v. Oshkosh Corr. Inst., 731 Fed.Appx.
517, 518 (7th Cir. 2018) ("[P]risoners have no liberty
interest in their jobs[.]"), in freedom from moderate
terms of segregated confinement, Marion v. Columbia Corr.
Inst, 559 F.3d 693, 698-99 (7th Cir. 2009) ("[S]ix
months of segregation is not such an extreme term and,
standing alone, would not trigger due process rights,"
contrasted against Plaintiff's segregation of barely more
than a month) (quotation omitted), or in a particular
security classification, DeTomaso v. McGinnis, 970
F.2d 211, 212 (7th Cir. 1992) ("[P]risoners possess
neither liberty nor property [interests] in their
classifications and prison assignments. States may move their
charges to any prison in the system."). Without a
protected liberty or property interest at stake, Plaintiff
does not present a valid constitutional claim.
light of the foregoing, the Court will dismiss this action
with prejudice. It will also deny Plaintiff's pending
motions for appointment of counsel, (Docket #4), and for a
preliminary injunction, (Docket #6), as moot.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(Docket #2) be and the same is hereby
IS FURTHER ORDERED that this action is
DISMISSED with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure
to state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that Plaintiff has incurred a "strike" under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that Plaintiff's motions for
appointment of counsel (Docket #4) and for a preliminary
injunction (Docket #6) ...