Gage v. Zanon et al

Filing 12

ORDER signed by Chief Judge William C. Griesbach on 3/1/18. Plaintiff's 2 MOTION for Leave to Proceed in forma pauperis is GRANTED. Plaintiff's 11 MOTION to use funds from Release Account to pay partial filing fee is DENIED as moot. The complaint submitted on 2/14/18 be and the same is hereby STRICKEN. Plaintiff is directed to file an amended complaint on or before 4/1/18, which contains only related claims in accordance with this Order. If plaintiff does not file an amen ded complaint by 4/1/18 that complies with the requirements of Rules 18 and 20, Fed. R. Civ. P., this action will be dismissed for failure to prosecute. (cc: all counsel and via US Mail to Shange Ryan Gage and the officer in charge)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SHANE RYAN GAGE,
Plaintiff,
v.

Case No. 18-C-240

KATHERINE ZANON, et al.,
Defendants.

ORDER

Plaintiff Shane Ryan Gage, who is currently serving a state prison sentence at Oshkosh
Correctional Institution and representing himself, filed a pro se civil rights complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff’s
motion for leave to proceed without prepaying the full filing fee. Plaintiff is required to pay the
$350.00 statutory filing fee for this action. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have
the money to pay the filing fee, he can request leave to proceed without prepayment of the full filing
fee. Plaintiff has filed a certified copy of his prison trust account statement for the six-month period
immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2). Though
Plaintiff has been assessed an initial partial filing fee of $2.27, it appears Plaintiff lacks the funds to
pay the initial partial filing fee. Therefore, the court waives the initial partial filing fee and grants
Plaintiff’s motion for leave to proceed without prepayment of the full filing fee.
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or 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. 28 U.S.C. § 1915A(b). A claim
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).
To 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). The complaint must contain sufficient factual matter “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The court accepts the factual allegations as true and liberally construes them in the
plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint
allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
Plaintiff’s 21-page complaint names 35 defendants from three separate correctional
institutions asserting a variety of alleged injustices, including numerous retaliation and due process
claims. Based on the court’s reading of the complaint, it appears Plaintiff is attempting to improperly
bring unrelated claims in a single case. As instructed by the Seventh Circuit Court of Appeals, under
the controlling principle of Federal Rule of Civil Procedure 18(a), “[u]nrelated claims against
different defendants belong in different suits” so as to prevent prisoners from dodging the fee
payment or three strikes provisions in the Prison Litigation Reform Act. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007). Specifically, Rule 18(a) provides that “[a] party asserting a claim,
counterclaim, crossclaim, or third-party claim may join, as independent or alternate claims, as many
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claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Under this rule, “multiple claims
against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.” George, 507 F.3d at 607.
Moreover, the court in George reminded district courts that Rule 20 of the Federal Rules
of Civil Procedure applies as much to prisoner cases as it does to any other case. Id. Under Rule
20, joinder of multiple defendants into one action is proper only if “any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and any question of law or fact
common to all defendants will arise in the action.” Fed. R. Civ. P. 20.
The court finds that the complaint violates Rules 18 and 20 insofar as it advances unrelated
claims against multiple defendants. The George court instructed that such “buckshot complaints”
should be “rejected.” 507 F.3d at 607. Therefore, the court will strike the original complaint
submitted on February 14, 2018. If the plaintiff wants to proceed, he must file an amended
complaint curing the deficiencies in the original complaint as described herein. Such amended
complaint must be filed on or before April 1, 2018. Failure to file an amended complaint within this
time period may result in dismissal of this action.
The plaintiff is advised that the amended complaint must bear the docket number assigned
to this case and must be labeled “Amended Complaint.” The amended complaint supersedes the
prior complaint and must be complete in itself without reference to the original complaint. See Duda
v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir. 1998). In
Duda, the appellate court emphasized that in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading.” Id. at 1057 (citation omitted).
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If the amended complaint is received, it will become the operative complaint in this action, and the
court will screen it in accordance with 28 U.S.C. § 1915A.
Further, the plaintiff is advised that 42 U.S.C. § 1983 “creates a cause of action based on
personal liability and predicated upon fault; thus liability does not attach unless the individual
defendant caused or participated in a constitutional violation.” Vance v. Peters, 97 F.3d 987, 991
(7th Cir. 1996). Moreover, the doctrine of respondeat superior (supervisory liability) does not apply
to actions filed under 42 U.S.C. § 1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992).
Section 1983 does not create collective or vicarious responsibility. Id. Thus, with respect to any
claim or claims advanced in his amended complaint, plaintiff must identify the individual defendants
and specify the manner in which their actions, or failure to take action, violated his constitutional
rights.
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave top proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to use funds from his release account
to pay the initial partial filing fee (ECF No. 11) is DENIED as moot.
IT IS FURTHER ORDERED that the complaint submitted on February 14, 2018 be and
the same is hereby stricken.
IT IS FURTHER ORDERED that the plaintiff is directed to file an amended complaint on
or before April 1, 2018, which contains only related claims in accordance with this Order.
IT IS FURTHER ORDERED that if the plaintiff does not file an amended complaint by
April 1, 2018 that complies with the requirements of Rules 18 and 20, Federal Rules of Civil
Procedure, this action will be dismissed for failure to prosecute.
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IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350.00 balance of the filing fee by collecting monthly
payments from the plaintiff’s prison trust account in an amount equal to 20% of the preceding
month’s income credited to the prisoner’s trust account and forwarding payments to the Clerk of
Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
The payments shall be clearly identified by the case name and number assigned to this action. If the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
Order along with plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, the plaintiff
shall submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the Court. The Prisoner E-Filing Program is in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh
Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility.
If the plaintiff is no longer incarcerated at a Prisoner E-Filing Program institution, he will be required
to submit all correspondence and legal material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
125 S. Jefferson Street, Suite 102
Green Bay, WI 54301

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Dated at Green Bay, Wisconsin this 1st day of March, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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