United States District Court, W.D. Wisconsin
PERRY R. NEAL, Plaintiff,
REED RICHARDSON, MARIO CANZIANI, CHERYL WEBSTER, CAPTAIN CHALLONER, OFFICER HEINRICH, DARCY GRABER, LIEUTENANT K. JOHNSON, HILLARY BROWN and SERGEANT EWER, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
se plaintiff Perry Neal filed this lawsuit pursuant to
42 U.S.C. Â§ 1983, seeking leave to proceed on constitutional
claims related to an allegedly wrongful conduct report that
led to his termination from his prison job. Of relevance
here, Neal alleged that defendant Warden Richardson agreed to
dismiss a conduct report accusing him of âdisobeying ordersâ
and âinadequate work or school performance, â but later
ordered that Neal be charged in a conduct report for the same
conduct, just for âdisobeying orders.â On June 15, 2018, the
court dismissed Neal's complaint for failure to state a
claim. (Dkt. #15.) Neal has filed a motion under Fed.R.Civ.P.
59(e) for reconsideration of this court's order
dismissing his complaint for failure to state a claim. (Dkt.
#17.) For the reasons that follow, the court is denying his
Rule 59(e), a court has the opportunity to correct its own
manifest errors of law or fact to avoid unnecessary appellate
procedures. Moro v. Shell Oil Co., 91 F.3d 872, 876
(7th Cir. 1996); see Harrington v. City of Chi., 433
F.3d 542, 546 (7th Cir. 2006). A “manifest error”
occurs when the district court commits a “wholesale
disregard, misapplication, or failure to recognize
controlling precedent.” Burritt v. Ditlefsen,
807 F.3d 239, 253 (7th Cir. 2015) (internal quotations and
citations omitted). Rule 59(e) “does not provide a
vehicle for a party to undo its own procedural failures, and
it certainly does not allow a party to introduce new evidence
or advance arguments that could and should have been
presented to the district court prior to the judgment.”
Moro, 91 F.3d at 876. Rule 59(e) relief is only
available if the movant clearly establishes one of the
foregoing grounds for relief. Harrington, 433 F.3d
at 546 (citing Romo v. Gulf Stream Coach, Inc., 250
F.3d 1119, 1122 n.3 (7th Cir. 2001)).
argues that while the court evaluated the merit of his Double
Jeopardy claim, it did not address his proposed Fourteenth
Amendment equal protection or due process claims, or his
First Amendment retaliation claim that he claims arose from
Warden Richardson's decision to issue him re-issue a
conduct report. However, he has not pointed to any error of
law or fact warranting reconsideration of the judgment in
with his equal protection claim, Neal claims that the court
ignored his allegations that Warden Richardson discriminated
against him in violation of his equal protection rights, but
Neal did not include any allegations in his complaint to
support such a claim. To state a prima facie case of
discrimination under the equal protection clause of the
Fourteenth Amendment, a plaintiff must at least allege that
he was: (1) “a member of a protected class”; (2)
“otherwise similarly situated to members of the
unprotected class”; and (3) “treated differently
from members of the unprotected class.” Brown v
Budz, 398 F.3d 904, 916 (7th Cir. 2005) (quoting
McNabola v. Chi. Transit Auth., 10 F.3d 501, 513
(7th Cir. 1993)). A plaintiff also may bring a
“class-of-one” equal protection claim for being
treated “intentionally . . . differently from others
similarly situated” for no rational reason. D.S. v.
E. Porter Cty. Sch. Corp., 799 F.3d 793, 799 (7th Cir.
2015) (quoting Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)). But class-of-one claims are generally
disfavored in the prison context, at least where they involve
discretionary decision-making by prison officials, like the
one at issue here. See, e.g., Taliaferro v.
Hepp, No. 12-cv-921, 2013 WL 936609, at *6 (W.D. Wis.
Mar. 11, 2013) (“[C]lass-of-one claims are likely never
cognizable in the prison disciplinary context . . .
.”). Neal has not alleged that he is a member of a
protected class, nor that Richardson singled him out for
worse treatment than other prisoners with no rational reason.
To the contrary, Neal had alleged that Richardson told him
that he directed staff to issue him another conduct report
because he believed that Neal had, in fact, disobeyed orders.
Therefore, his complaint does not support a Fourteenth
Amendment equal protection claim.
respect to Neal's proposed Fourteenth Amendment due
process claim, Neal did not explicitly invoke this right in
his complaint but now argues that his complaint stated a
substantive due process violation. However, in the prison
context, disciplinary charges violate a prisoner's
substantive due process rights only if the charges are
fabricated or the prison officials exercise their
disciplinary authority in an entirely arbitrary
manner. Leslie v. Doyle, 125 F.3d 1132, 1136 (7th
Cir. 1997) (“Perhaps a useful approach is to say that a
frame-up or malicious prosecution is in and of itself an
inchoate breach of substantive due process, which matures
into a viable claim if the consequences are sufficiently
severe.”). While Neal alleged that Richardson acted
arbitrarily, he also alleged that Richardson believed that he
had disobeyed orders when he directed staff to write up a
second conduct report. Since Neal alleged facts suggesting
that Richardson believed he had a good faith basis to direct
that the conduct report be rewritten, Neal has not pointed to
any error of law or fact in not granting him leave to proceed
on a substantive due process claim.
as to Neal's First Amendment retaliation claim, the court
did not address it because Neal did not invoke this
constitutional claim, nor did his allegations suggest that
such a claim exists. To state a claim for retaliation, a
plaintiff must allege that: (1) he engaged in activity
protected by the Constitution; (2) the defendant subjected
the plaintiff to adverse treatment because of the
plaintiff's constitutionally protected activity; and (3)
the treatment was sufficiently adverse to deter a person of
“ordinary firmness” from engaging in the
protected activity in the future. Gomez v. Randle,
680 F.3d 859, 866-67 (7th Cir. 2012); Bridges v.
Gilbert, 557 F.3d 541, 555-56 (7th Cir. 2009). While
Neal alleges he filed a grievance about the first conduct
report, Neal did not allege in his complaint that
Richardson's decision to impose a second conduct report
against him was intended to punish him for any
constitutionally protected activity; rather, as noted, Neal
alleged that Richardson told him that he believed Neal had
disobeyed orders. As such, the court did not err in declining
to read a retaliation claim into Neal's complaint.
ORDERED that plaintiff Perry R. Neal's motion for