govinfo:USCOURTS-wiwd-3_25-cv-00126-3

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN 
 
 
DAVID D. EBBEN,           
          
    Plaintiff,    OPINION AND ORDER 
 v. 
                25-cv-126-wmc 
DARIUS FLYNN, CAPTAIN KOCH, 
SERGEANT SMILEY, B. MULLER,  
CORRECTIONAL OFFICER LAMB, 
ROBERT W. DOYLE, RHONDA CORDERO, 
and JOHN/JANE DOE HEALTH SERVICES 
UNIT EMPLOYEE, 
 
    Defendants. 
 
Plaintiff David D. Ebben, who is representing himself, filed this lawsuit against 
numerous defendants  while he was incarcerated by the Wisconsin Department of 
Corrections (“DOC”).  The court dismissed plaintiff’s original complaint for failure to 
comply with the Federal Rules of Civil Procedure.  (Dkt. #19.)  The court then dismissed 
plaintiff’s amended complaint for failure to provide sufficient facts in support of a claim, 
but granted him one final opportunity to amend.  (Dkt. #48.)   
Plaintiff has now filed a second amended complaint.  (Dkt. #52.)  Because plaintiff 
filed this case as a prisoner and proceeds without prepayment of the filing fee, the court 
must screen the amended complaint and dismiss any claim that is frivolous, malicious, fails 
to state a claim on which relief may be granted, or seeks monetary damages from a 
defendant who is immune from such relief.  28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. 
§ 1915A(b).  When screening a complaint drafted by a non-lawyer, the court applies a less 
stringent standard.  Arnett v. Webster , 658 F.3d 742, 751 (7th Cir. 2011).  However, 
Case: 3:25-cv-00126-wmc     Document #: 53     Filed: 06/08/26     Page 1 of 6
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plaintiff must still allege enough facts to show that he is plausibly entitled to relief.  Bell 
Atl. Corp. v. Twombly , 550 U.S. 544, 557 (2007).  For reasons set forth below, the court 
will dismiss the amended complaint with prejudice and close this case.     
ALLEGATIONS OF FACT1 
Plaintiff sues the following correctional officers employed by DOC at the New 
Lisbon Correctional Institution (“NLCI”) :  Captain Koch; Sergeant Smiley; Inmate 
Complaint Examiner B. Muller; Correctional Officer Lamb; Disciplinary Hearing Officer 
Robert W. Doyle; and Rhonda Cordero, who is assigned to the Inmate Complaint Review 
System.  Plaintiff also sues a John/Jane Doe Health Servi ces Unit (“HSU”) employee and 
another inmate named Darius Flynn. 
Plaintiff alleges that on October 4, 2024, he was “medically cleared for minimum 
custody” when Flynn “retaliated by making false allegations leading to [plaintiff’s] 
placement in [temporary lock up].”  Plaintiff claims that he was strip searched, isolated, 
and denied unspecified medication while in TLU.  He was then coerced into accepting 
disciplinary charges to obtain his medication.  Plaintiff also claims that defendant Cordero 
reviewed and wrongfully affirmed the rejection of his inmate complaint concerning these 
issues.  As a result, plaintiff suffered “reputational harm, loss of privileges, and loss of 
personal property.”    
 
1 The facts in this section are taken from pla intiff’s most recent amended complaint, which 
supersedes his previous complaints.  See Chasensky v. Walker, 740 F.3d 1088, 1094 (7th Cir. 2014) 
(“When a plaintiff files an amended complaint, the new complaint supersedes all previous 
complaints and controls the case from that point forward . . . [b]ecause a plaintiff’s new complaint 
wipes away prior pleadings[.]”) (citations omitted). 
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OPINION 
Plaintiff has filed suit under 42 U.S.C. § 1983 to recover monetary damages from 
the defendants.  To state a claim for relief under § 1983, a plaintiff must allege that 
someone deprived him of a right secured by the Constitution or the laws of the United 
States, and that whoever deprived him of this right was acting under the color of state law.  
D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore 
v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). 
Here, plaintiff claims that Flynn retaliated against him in violation of the First 
Amendment and damaged his reputation by making false allegations that resulted in his 
placement in disciplinary segregation.  As explained to plaintiff previously (dkt. #48), he 
cannot sue Flynn under § 1983 because , as a fellow inmate, Flynn is not a state actor.   
Accordingly, plaintiff cannot bring a retaliation claim against Flynn.  Moreover, to the 
extent that plaintiff accuses Flynn of defamation, it is well established that such claims are 
not actionable under § 1983.  Paul v. Davis , 424 U.S. 693 (1976).   Plaintiff’s bare 
allegations fail to  otherwise state a claim under Wisconsin law, which requires “the 
particular words complained of” to be set forth in the complaint.  Wis. Stat. § 802.03; see 
also Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007). 
To the extent that plaintiff alleges that he lost privileges as a result of the 
disciplinary charges he was forced to accept, he does not allege a protected liberty interest 
sufficient to invoke due process protections.  See Thomas v. Ramos, 130 F. 3d 754, 762 n.8 
(7th Cir. 1997) (there is no protected liberty interest in the loss of privileges) .  Prisoners 
also “do not have a liberty interest in avoiding brief periods of segregation, whether 
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administrative or disciplinary.”  Smith v. Akpore, 689 F. App’x 458, 460 (7th Cir. 2017); see 
also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (“an inmate’s liberty interest 
in avoiding disciplinary segregation is limited”) (citing Marion v. Columbia Corr. Inst., 559 
F.3d 693, 697 (7th Cir. 2009)).  
Likewise, while plaintiff alleges that he was denied “notice and opportunity to be 
heard and meaningful review of his grievances,” the Constitution does not require prisons 
to enact grievance procedures or to handle grievances in a particular way.  Kervin v. Barnes, 
787 F.3d 833, 835 (7th Cir. 2015) (“[T]he inadequacies of the grievance procedure itself 
. . . cannot form the basis for a constitutional claim.”).  Thus, plaintiff’s allegation that he 
was denied due process in connection with the grievance pro cess does not state a claim.  
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“With respect to the Due Process 
Clause, any right to a grievance procedure is a procedural right, not a substantive one.  
Accordingly, a state’s inmate grievance procedures do not give rise to a liberty interest 
protected by the Due Process Clause.” (internal citations omitted)).   
Plaintiff also alleges that his personal property was lost or destroyed in violation of 
the Due Process Clause .  As explained to plaintiff previously, loss of property is not 
actionable under the Due Process Clause if “adequate state post -deprivation remedies are 
available.” Hudson v. Palmer , 468 U.S. 517, 533 (1984). Wisconsin allows tort claims 
against the state and prison officials for the deprivation of property.  See Streckenbach v. 
Vandensen, 868 F.3d 594, 597 (7th Cir. 2017); Greeno v. Litscher, 13 F. App’x 370, 376-77 
(7th Cir. 2001); Moffett v. Dittman , No. 20 -cv-9-wmc, 2022 WL 3016673, at *2 (W.D. 
Wis. July 29, 2022). Because Wisconsin law provides adequate post-deprivation remedies, 
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plaintiff fails to state a due process claim for the loss of property. 
Finally, plaintiff alleges that he was denied unspecified medication in violation of 
the Eighth Amendme nt while in TLU  until he agreed to accept the disciplinary charges 
lodged against him .  To state an Eighth Amendment claim for denial of medical care , a 
prisoner must plead facts suggesting that (1) he suffered from an objectively serious medical 
condition, and (2) the defendant was deliberately indifferent to that condition.  Rasho v. 
Elyea, 856 F.3d 469, 475 (7th Cir. 2017).  Deliberate indifference requires a showing that 
the defendant actually knew about yet disregarded a substantial risk of harm to an inmate’s 
health or safety.  Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016)  (en banc).  Plaintiff 
does not provide any facts about his medical condition or the medication he was allegedly 
denied.  He further alleges no facts from which deliberate indifference on the part of any 
defendant can be inferred.  Although a plaintiff need only allege “enough facts to state a 
claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, plaintiff’s 
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  As a result, plaintiff 
has failed to state a viable claim against any of the defendants.  Ollison v. Gossett, 136 F.4th 
729, 737 (7th Cir. 2025).   
Accordingly, plaintiff’s second amended complaint fails to state a claim upon which 
relief may be granted.  Because plaintiff has already had two opportunities to amend his 
complaint, and he has not corrected the deficiencies identified previously by the court, this 
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action will be dismissed without further leave to amend and with prejudice pursuant to 28 
U.S.C. § 1915(e)(2).   
ORDER 
IT IS ORDERED that: 
1. Plaintiff David D. Ebben is DENIED leave to proceed with his second amended 
complaint (dkt. #52) and this action is DISMISSED with prejudice for failure 
to state a claim. 
 
2. The clerk’s office is directed to enter a “strike” for purposes of 28 U.S.C. 
§ 1915(g) and to close this case. 
 
Entered this 8th day of June, 2026. 
BY THE COURT: 
 
      /s/       
      __________________________________ 
      WILLIAM M. CONLEY 
      District Judge 
 
 
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