Lewis v. Pollard et al

Filing 49

ORDER signed by Judge J P Stadtmueller on 9/2/11: denying 29 plaintiff's Motion for Leave to Appeal in forma pauperis; granting 39 plaintiff's Motion for Extension of Time to file an amended complaint; denying 46 plaintiff's Moti on to Stay these proceedings pending appeal; denying 47 plaintiff's Motion to Appoint Counsel; pursuant to an informal service agreement between the Attorney General and this court, copies of 40 plaintiff's amended complaint and this order are being electronically sent today to the Attorney General for service on the state defendants; the defendants shall file a responsive pleading to the amended complaint. (cc: plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER LEWIS,
Plaintiff,
v.

Case No. 11-CV-280-JPS

WILLIAM POLLARD,
PETER ERICKSEN,
C.O. II VANLOO, DILLEN BERG,
C.O. GIFFIN, MICHAEL BAEDEN,
and JEANANNE G. ZWIERS,

ORDER

Defendants.

The plaintiff, Christopher Lewis, who is incarcerated at the Green Bay
Correctional Institution, filed a pro se civil rights complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated by correctional staff. On
May 23, 2011, the court found that the plaintiff’s lengthy complaint violated
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), insofar as it contained
unrelated claims against 20 different defendants. Accordingly, the court
directed the plaintiff to file an amended complaint no later than July 8, 2011,
that contained only properly related claims. Initially, the plaintiff responded
by filing a motion for leave to appeal in forma pauperis on June 21, 2011.
However, the plaintiff subsequently sought an extension of time to file an
amended complaint, which he then filed on July 20, 2011, along with a
motion to stay this action. Finally, the plaintiff filed a motion to appoint
counsel on July 25, 2011.
The plaintiff wants to appeal the court’s decision requiring him to file
an amended complaint. However, the plaintiff can only take an interlocutory
appeal of an otherwise unappealable order if the order “involves a

controlling question of law as to which there is substantial ground for
difference of opinion and [if] an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). That standard is not satisfied here. In his statement of issues on
appeal, the plaintiff explains that he wanted to consolidate various claims
against 24 different defendants into a single case “due to his indigency, which
would only be practical in this situation.” (Docket #31 at 3). This is an
improper reason to consolidate claims. As the Court of Appeals for the
Seventh Circuit explained in George, unrelated claims against different
defendants belong in separate lawsuits “to ensure that prisoners pay the
required filing fees” as required by the Prison Litigation Reform Act. 507
F.3d 605 at 607. Therefore, the plaintiff’s motion for leave to appeal in forma
pauperis will be denied, as will be his motion to stay this action pending
appeal.
The plaintiff’s motion for an extension of time to file his amended
complaint due to delays in obtaining photocopies will be granted, as the
amended complaint was filed within a reasonable period under the
circumstances. The plaintiff’s amended complaint names seven defendants:
former Warden William Pollard, current Warden Michael Baeden, Security
Director Peter Ericksen, Health Services Unit Manager Jeananne Zwiers, and
Correctional Officers Vanloo, Giffin, and Berg. The amended complaint and
its exhibits allege that the plaintiff has been subjected to sewage odors in his
cell since June 18, 2010. These odors cause headaches which have not been
effectively treated, and he has been mocked by correctional officers who
believe or pretend to believe that his poor hygiene causes the smell in his cell.
The plaintiff has filed complaints regarding the sewage smell and his
mistreatment, and he contends that the defendants have retaliated against
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him by tampering with his food and medication and filing a false conduct
report against him.
The allegations of mockery and verbal harassment fail to state a claim.
See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“The use of derogatory
language, while unprofessional and deplorable, does not violate the
Constitution.”) and Dobbey v. Ill. Dep’t of Corrs., 574 F.3d 443,446 (7th Cir.
2009) (“[H]arassment, while regrettable, is not what comes to mind when one
thinks of ‘cruel and unusual’ punishment.”). However, the plaintiff may
proceed on an Eighth Amendment claim that he was sickened by the sewage
odors in his cell, and that he was deprived of effective medical treatment and
medication. The plaintiff may also proceed on a claim under the First
Amendment for retaliation. See Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.
2005) (“[A] prisoner can sufficiently state a claim for relief when he alleges
that prison officials issued baseless disciplinary tickets against him in
retaliation for pursuit of administrative grievances.”).
The plaintiff has also filed a motion for the court to appoint counsel
to represent him, stating that he dropped out of school in the tenth grade due
to mental health issues and does not have the legal experience to litigate this
case on his own. Indigent civil litigants have no absolute constitutional or
statutory right to be represented by counsel in federal court. Pruitt v. Mote,
503 F.3d 647, 649 (7th Cir. 2007). While the court is authorized to request an
attorney to represent an indigent civil litigant pursuant to 28 U.S.C.
§ 1915(e)(1), the threshold inquiry under § 1915(e) is whether the plaintiff has
made a reasonable, but unsuccessful, effort to retain counsel on his own. Id.
at 654-55. Because the plaintiff has documented his unsuccessful efforts to
retain an attorney, the court must consider the question of "whether the
plaintiff appears competent to litigate his own claims, given their degree of
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difficulty." Id. at 655. The plaintiff has prior litigation experience, having
represented himself in another civil rights case in this court related to his
confinement, 09-CV-138. In that case, the plaintiff appeared pro se on claims
that correctional officers failed to protect him from another inmate and
unlawfully retaliated against him. His pro se filings were generally coherent,
and were adequate to withstand a motion for summary judgment. In this
case as well, the plaintiff’s filings appear competent, and his claims are not
unduly difficult. Therefore, at this point in the proceedings, the plaintiff’s
motion for counsel will be denied without prejudice.
Accordingly,
IT IS ORDERED that the plaintiff’s motion to proceed in forma
pauperis on appeal (Docket #29) be and the same is hereby DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for an
extension of time to file an amended complaint (Docket #39) be and the same
is hereby GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion to stay these
proceedings pending appeal (Docket #46), be and the same is hereby
DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (Docket #47), be and the same is hereby DENIED.
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Attorney General and this court, copies of plaintiff’s
amended complaint (Docket #40) and this order are being electronically sent
today to the Attorney General for service on the state defendants.

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IT IS FURTHER ORDERED that the defendants shall file a
responsive pleading to the amended complaint.
Dated at Milwaukee, Wisconsin, this 2nd day of September, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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