Frohwerk v. Unknown Employees of the Westville Correctional Facility et al
Filing
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OPINION AND ORDER DISMISSING CASE pursuant to 28 USC 1915A. Signed by Judge William C Lee on 6/20/2011. (cc: Frohwerk)(rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
Plaintiff,
v.
UNKNOWN EMPLOYEES OF WESTVILLE
CORRECTIONAL FACILITY, et al.,
Defendants.
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CAUSE NO. 2:11-CV-201 WL
OPINION AND ORDER
David Frohwerk, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE 1.)
Pursuant to 28 U.S.C. § 1915A, the court must review a prisoner complaint and dismiss it if the
action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b).
In determining whether the complaint states a claim, the court applies the same standard as when
deciding a motion under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Lagerstrom v. Kingston,
463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal, a complaint must state a claim for relief
that is plausible on its face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir.
2009). “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. at 603. The court must bear in mind, however, that “[a] document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007).
Here, Frohwerk is suing multiple defendants from Westville Correctional Facility
(“Westville”), including grievance specialist Tim Bean and Superintendent Mark Levenhagen,
claiming that they housed him under inhumane conditions in the segregation unit at Westville
between January 31, 2011, and April 20, 2011. Specifically, he alleges that he was housed in a
cold and damp cell without adequate bedding or clothing to keep him warm and that he became
sick with a cold as result.
In the past four months, Frohwerk has initiated eight separate lawsuits, several of which
have defendants in common and contain overlapping allegations about the conditions in the
segregation unit. See Frohwerk v. Armstrong, 2:11-CV-202-WCL (N.D. Ind. filed June 13,
2011); Frohwerk v. Unknown Employees, 2:11-CV-201-WCL (N.D. Ind. filed June 13, 2011);
Frohwerk v. Carter, 2:11-CV-199-TLS (N.D. Ind. filed June 13, 2011); Frohwerk v.
Levenhagen, 2:11-CV-157-JTM (N.D. Ind. filed May 2, 2011); Frohwerk v. Johnson, 2:11-CV133-RLM (N.D. Ind. filed Apr. 12, 2011); Frohwerk v. Buss, 2:11-CV-070-PPS (N.D. Ind. filed
Feb. 23, 2011); Frohwerk v. Buss, 2:11-CV-69-RLM (N.D. Ind. filed Feb. 22, 2011). In a case
proceeding before Chief Judge Simon, Frohwerk is suing Levenhagen and Bean, among other
defendants, based on the same set of facts as those raised in this case. See Frohwerk v. Buss, et
al., 2:11-CV-070-PPS, DE 1. As in this case, he alleges there that he was housed in excessively
cold conditions in the segregation unit at Westville beginning in January 2011 in violation of his
Eighth Amendment rights. Id.
While Frohwerk is free to raise his claims in the earlier filed lawsuit, it is malicious for
him to file multiple suits against the same defendants based on the same set of facts. See 28
U.S.C. § 1915A; see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (suit is
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“malicious” for purposes of 28 U.S.C. § 1915A if it is intended to harass or is otherwise abusive
of the judicial process); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (it is malicious
for a plaintiff with in forma pauperis status to file a lawsuit that duplicates allegations of another
pending lawsuit brought by the same plaintiff). Accordingly, this case must be dismissed.
For the reasons set forth above, this action is DISMISSED pursuant to 28 U.S.C.
§ 1915A.
SO ORDERED.
ENTERED: June 20, 2011
s/William C. Lee
William C. Lee, Judge
United States District Court
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