Dietrich v. Wisconsin Department of Corrections et al

Filing 37

ORDER signed by Chief Judge Charles N Clevert, Jr on 12/6/2011 Denying 32 Motion Begging Court to Accept 30 Page Amended § 1983 Complaint; Denying 34 Motion for Preliminary Injunction; Plaintiff's amended complaint now due by 1/6/2012, failure to do so will result in dismissal of this action with prejudice. No further extensions will be granted. (cc: all counsel, via US Mail to Plaintiff with copy of courts form § 1983 complaint for prisoners) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACOB T. DIETRICH,
Plaintiff,
v.

Case No. 11-cv-0352

WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION BEGGING COURT TO ACCEPT 30 PAGE
AMENDED § 1983 COMPLAINT (DOC. # 32) AND DENYING PLAINTIFF’S MOTION
FOR PRELIMINARY INJUNCTION (DOC. # 34)
Now before the court are plaintiff’s motion that his thirty page amended § 1983
complaint be accepted and his motion for a preliminary injunction. Both will be denied.
The court has reviewed plaintiff’s proposed amended complaint. While plaintiff has
cut down the number of pages significantly, he still presents numerous seemingly unrelated
claims against at least forty-six defendants. Hence, there are multiple reason that this
complaint cannot be accepted.
First, Civil Local Rule 9(b) provides:
Prisoners appearing pro se who commence an action under 42
U.S.C. § 1983 for deprivations of federal rights by persons
acting under color of state law must file the complaint with the
Clerk of Court using the form available from the Court. The
Clerk of Court will provide the forms and directions for their
preparation without charge.
Civil L.R. 9(b) (E.D. Wis.). Nevertheless, plaintiff has not used the required form.
Second, 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). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff’s proposed
amended complaint is long and confusing, and does not provide the proposed defendants
with information sufficient to put them on notice of plaintiff’s claims against them.
Third, based on the court’s reading of the proposed amended complaint, it appears
that plaintiff is attempting to bring unrelated claims in to a single case. However, as
instructed by the Seventh Circuit Court of Appeals, under the controlling principle of Rule
18(a), Federal Rules of Civil Procedure, “[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 claims as it has against an opposing party.” In accordance with 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, Federal Rules
of Civil Procedure, applies as much to prisoner cases as it does to other cases. 507 F.3d
at 607. 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.”
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The court finds that the proposed amended complaint violates Rules 18 and 20
insofar as it advances unrelated claims against multiple defendants, including the
Wisconsin Department of Corrections, four separate Wisconsin counties, several
educational institutions, and the University of Wisconsin system, in addition to claims
against individuals employed by many of those entities. For the foregoing reasons, the
plaintiff’s motion is rejected, his thirty page proposed amended complaint may not be filed.
However, plaintiff will be allowed one final chance to file an amended complaint that cures
the deficiencies outlined in this decision and the October 11, 2011, decision (Docket # 27).
Any future amended complaint must be filed on or before Friday, January 6, 2012, and
he must be submitted on the form provided with this order with no more than ten additional
pages. No extensions of time will be granted for filing a further amended complaint.
Because an amended complaint supersedes prior complaints, any matters not set
forth in the amended complaint are, in effect, withdrawn. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir. 1998). Consequently
an amended complaint filed as directed will become the operative complaint in this action,
and will be screened it in accordance with 28 U.S.C. § 1915A. If plaintiff does not file an
amended complaint, the original complaint will be dismissed for failure to state a claim.
Also, any unrelated claim not pursued in this case must be brought in a separate
action. In a multi-claim, multi-defendant suit, each claim will be evaluated for the purpose
of 28 U.S.C. § 1915(g). When any claim in a complaint is frivolous, malicious, or fails to
state a claim upon which relief can be granted, the plaintiff will incur strikes. See George,
507 F.3d at 607.

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Further, 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). The doctrine of respondeat superior (supervisory liability)
does not apply to actions filed under 42 U.S.C. § 1983, and § 1983 does not create
collective or vicarious responsibility. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir.
1992). 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.
The plaintiff also has filed a motion for preliminary injunction. He asserts that “all
previous motions were dismissed out of hand and without addressing most of the requests
contained therein.” (Docket # 34). He asks the court to consider each item because
injustice will result if his requests are denied.
Plaintiff seeks: (1) an order granting plaintiff a legal loan extension; (2) an order
appointing counsel; (3) an order allowing plaintiff to pay his course copay charges out of
his release account; (4) defendants’ compliance with his discovery requests; and (5) an
expansion of the interrogatory limit in this case to 150. However, because there is no
operative complaint, on file at this time, plaintiff is not entitled to the requested relief.
Moreover, a motion for preliminary injunction is not the appropriate vehicle to address
these concerns. If plaintiff files an amended complaint and is allowed to proceed in this
case, he may file new motions as warranted. Therefore,
IT IS ORDERED that plaintiff’s motion to amend (Docket #32) is denied.

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IT IS FURTHER ORDERED that plaintiff’s motion for preliminary injunction (Docket
#34) is denied.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on or
before Friday, January 6, 2012. Failure to file an amended complaint by that date will
result in dismissal of this action with prejudice. No further extensions will be granted.
IT IS FURTHER ORDERED that the Clerk of Court shall provide plaintiff with
another copy of the court’s form § 1983 complaint for prisoners.
Dated at Milwaukee, Wisconsin, this 6th day of December, 2011.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge

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