Bowers v. Thurmer et al

Filing 7

ORDER signed by Judge J P Stadtmueller on 5/13/10 as follows: granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; the plaintiff shall file an amended pleading by 6/7/10; directing the Secretary of the Wisconsin Dept of Correc tions or his designee to collect from the plaintiffs prison trust account the $350.00 balance of the filing fee owed by collecting monthly payments and forwarding same to the clerk of the court as specified. See Order. (cc: plaintiff w/Civil Rights Complaint form, Warden of Waupun Correctional Institution, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
D A V ID ELIJAH BOW E R S , JR., P l a i n t if f, v. M IC H A E L THURMER, DON STRAHOTA, M IC H A E L MEISENER, TRITTON, B E N J A M IN HILBERT, JOHN NICKEL, J E S S E UMENTUM, BRIAN GREFF, P A T T Y CARRAN, STEVEN WIERENGA, W IL L IA M BEDKER, ANDREW BISSONETTE, B E L IN D A SCHRUBBE, BRAD W A L T Z , C H A R L E S GRIESDALE, CO II BEAHM, a n d TRAVIS S. CAUL, D e fe n d a n ts . C a s e No. 10-CV-63

ORDER
T h e plaintiff, a W is c o n s in state prisoner, filed a pro se complaint under 42 U .S .C . § 1983, alleging that his civil rights were violated. This matter comes before th e court on the plaintiff's petition to proceed in forma pauperis. The plaintiff has file d a certified copy of his prison trust account statement for the six-month period im m e d ia te ly preceding the filing of his complaint, and he lacks the funds to pay an in itia l partial filing fee. See 28 U.S.C. §§ 1915(a)(2), 1915(b)(4). The court is required to screen complaints brought by prisoners seeking relief a g a in s t 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

p ris o n e r 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 d e fen d a n t 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 fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o state a cognizable claim under the federal notice pleading system, the p la in tiff is required to provide a "short and plain statement of the claim showing that [h e ] 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 w h a t the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 )) . However, a complaint that offers "labels and conclusions" or "formulaic re c itatio n of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U .S . ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). To s ta te a claim, a complaint must contain sufficient factual matter, accepted as true, -2-

"th a t is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. a t 570). "A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint

a lle g a tio n s "must be enough to raise a right to relief above the speculative level." T w o m b ly , 550 U.S. at 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are n o more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. C t. at 1950. Legal conclusions must be supported by factual allegations. Id. If there a re well-pleaded factual allegations, the court must, second, "assume their veracity a n d then determine whether they plausibly give rise to an entitlement to relief." Id. T o 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 S ta te s ; and 2) the deprivation was visited upon him by a person or persons acting u n d e r color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 8 2 7 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7 th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is o b lig e d to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tru c tio n . See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (q u o tin g Estelle v. Gamble, 429 U.S. 97, 106 (1976)). -3-

T h e plaintiff is incarcerated at W a u p u n Correctional Institution. Although not e n tire ly clear, the plaintiff appears to allege that he was subjected to unconstitutional c o n d itio n s of confinement, excessive force, and deliberate indifference to his serious m e d ic a l needs beginning around May 2009. In addition, although far from clear, he m a y allege that he has been subjected to the above in retaliation for previous l it i g a t i o n . As written, the complaint fails to state a claim because, for the most part, it d o e s not make sense. For example, the complaint states in part: O n May 19, 2009, Officer Bowers 1 , medical needs had been met o n political and social and economic challenges on constituted scientific te c h n ic a l claim(s) within the Office of the High Commissioner Human R ig h ts , Youngberg v. Romeo, 457 U.S. 307, 324 (1982). "The State h a s a duty to provide adequate food, shelter, clothing and medical care fo r its inmates, these are the essentials of the care that the state must p ro vid e ." Officer Bowers, beforehand had been maliciously injured by ra c is t state employees converting to presidential record on prima facie fa c to rs . Defendant Tritton, defendant Caul, defendant Hilbert and d e fe n d a n t Nickel and defendant Umentum, and defendant Greff and In s titu tio n Complaint(s) had immediate been exhausted on prison n e g lig e n c e , see Leslie v. Doyle, 125 F.3d 1132, 1136 (7th Cir. 2007). T o state a claim for retaliation, (1) he must "specify a retaliatory action," (2 ) he must name the appropriate defendants; and (3) he must assert a constitutionally protected activity the exercise of which caused the a c tio n . Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). He had b e e n burned by 50,000 volts of an ultron II electronic control device a ft e r being incapacitated various of time(s) with the Mark IX OC/OS B le n d . Plaintiff Bowers, had been strip nude naked and showered and im p le m e n te d within abusive steel restraint(s) causing the wanton in flictio n of pain, Hope v. Pelzer, 530 U.S. 730 (2002). W h ile being in vo lu n ta ry constrained, "RN Medical Officer Patty Carran, assessed

Throughout the com p la in t, the plaintiff alternates between referring to him s e lf as "Officer Bowers" a n d "plaintiff Bowers."

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B o w e rs and noted several abrasions on his left forearm and small cuts o n his wrists due to him resisting so forcefully against the restraints. R N Carran also checked the Ripp restraints stating that she was m e d ic a lly satisfied we could leave the cell. RN Patty Carran gave p la in tiff Bowers a sedative injection of execution protocol, Oken v. S ize r, 321 F. Supp. 2d 658 (2004). After applying the protocol shot for e c o n o m ic and manpower potential that as been created in the c o u n try s id e of W a u p u n Correctional Institution. Defendants who p re s id e within state administrative codes prescribed by state law a b rid g e the privilege in said office violating a presidential political s tra te g y on his economic governmental body and the political strategy o f military enforcement and Officer Bowers, suffer food deprivation n u m e ro u s of times by defendant Strahota, and defendant W ie re n g a , e to p p e lin g his political leadership to ingugurate [sic] respectfully in o ffic e within pardon rights. Mr. Bowers had been disparaged and d e g ra d e d as a U.S. union member as a patient of the Office of the High C o m m iss io n e r Human Rights. Kilaab (Al) Ghashiyah v. Department of C o rr e c tio n s of State of Wisconsin, 250 F. Supp. 2d 1016 (E.D. W is . 2 0 0 3 ). (C o m p l. at 4-5.) The complaint continues in this manner for approximately ten more pages. For relief, the plaintiff seeks: "For this injury incurred on Presidential

S c ie n c e , that amass imminent danger to his life on catastrophe, plaintiff request the c o u rt reward him fifteen (15) million dollars on compensatory damages and fifteen (1 5 ) million dollars on punitive damages." District courts may dismiss complaints that are confusing due to their length a n d lack of clarity, although leave to replead should ordinarily be granted. See L in d e ll v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003). The court is unable to u n d e rs ta n d the plaintiff's claims and, therefore, his complaint will be dismissed for la c k of clarity. However, the plaintiff may file an amended complaint. He should use th e enclosed form and limit his complaint to stating as briefly as possible the facts -5-

o f his case. The plaintiff should include how each defendant is involved. He should n o t include arguments in his complaint. Finally, the plaintiff should attempt to be as c le a r as possible and to keep in mind that, if his amended complaint states a claim o r claims, the defendants will have to answer; the clearer he is in the amended c o m p la in t, the better the defendants will be able to answer. If the plaintiff wants to proceed, he must file an amended complaint curing the d e fic ie n c ie s in the original complaint as described herein. Such amended complaint m u s t be filed on or before June 7, 2010. Failure to file an amended complaint within th is time period may result in dismissal of this action. T h e plaintiff is advised that the amended complaint must bear the docket n u m b e r assigned to this case and must be labeled "Amended Complaint." The a m e n d e d complaint supersedes the prior complaint and must be complete in itself w ith o u t reference to the original complaint. See Duda v. Bd. of Educ. of Franklin P a r k Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir. 1998). In Duda, the a p p e lla te court emphasized that in such instances, the "prior pleading is in effect w ithd ra w n as to all matters not restated in the amended pleading." Id. (citations o m itte d ). If an amended complaint is received, it will be screened pursuant to 28 U .S .C . § 1915A. Otherwise, the case will be dismissed. IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED.

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IT IS FURTHER ORDERED that on or before June 7, 2010, the plaintiff shall file an amended pleading curing the defects in the original complaint as described h e re in . IT IS FURTHER ORDERED that the Clerk's Office send the plaintiff a civil rig h ts complaint form. IT IS FURTHER ORDERED that the Secretary of the W is c o n s in Department o f Corrections or his designee shall collect from the plaintiff's prisoner trust account th e $350.00 balance of the filing fee by collecting monthly payments from the p la in tiff's prison trust account in an amount equal to 20% of the preceding month's in c o m e credited to the prisoner's trust account and forwarding payments to the Clerk o f 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 n u m b e r assigned to this action. IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined. IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence a n d legal material to: H o n o ra b le J.P. Stadtmueller % Office of the Clerk U n ite d States District Court E a s te rn District of W is c o n s in 3 6 2 United States Courthouse 5 1 7 E. W is c o n s in Avenue M ilw a u k e e , W is c o n s in 53202 -7-

P L E A S E DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S CHAMBERS. It will only delay the processing of the matter. D a te d at Milwaukee, W is c o n s in , this 13th day of May, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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