Gates v. Clarke et al

Filing 15

ORDER Granting Plaintiff's Motion for Leave to Proceed IFP 2 , Denying Plaintiff's Motion to Appoint Counsel 11 , Granting Plaintiff's Motion to Amend Complaint 11 , Directing Plaintiff to File Amended Complaint by 4/14/12, and Deny ing as Moot Plaintiff's Motion for Extension of Time and Motion for Order to Demand Jail to Send Payment 14 . (cc: all counsel; via US Mail to Plaintiff (w/Complaint Form), Milwaukee County Sheriff and AAG Finkelmeyer) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LAVELL D. GATES,
Plaintiff,
v.

Case No. 11-CV-1053

DAVID A. CLARKE, JR., RICHARD SCHMIDT,
MS. KOVALCHUK, and MS. WATTS,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS (DOC. 2), DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL
(DOC. 11), GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT (DOC. 11),
DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT BY APRIL 14, 2012, AND
DENYING AS MOOT PLAINTIFF’S MOTION FOR EXTENSION OF TIME AND
MOTION FOR ORDER TO DEMAND JAIL TO SEND PAYMENT (DOC. 14)
Plaintiff, who is incarcerated at the Milwaukee County Correctional Facility - Central,
filed a pro se complaint under 42 U.S.C. § 1983. This matter comes before the court on
plaintiff’s petition to proceed in forma pauperis. He has been assessed an initial partial
filing fee of $14.57 and paid $15.00. Accordingly, plaintiff’s motion for extension of time
to pay the initial partial fee and for an order to demand jail to send payment will be denied
as moot.
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). The court
may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless
legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
327. “Malicious,” although sometimes treated as a synonym for “frivolous,” “is more
usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, 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 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)). However, a complaint that offers
“labels and conclusions” or “formulaic recitation of the elements of a cause of action will
not do.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly,
550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). The complaint

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allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the principles
set forth in Twombly by first, “identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To 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 States; and 2) the
deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give plaintiff’s pro se allegations,
“however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff alleges that on September 26, 2011, defendant Nurse Kovalchuk gave him
another inmate’s medication and that defendant Nurse Watts was present when the error
occurred. Plaintiff informed Nurse Watts the medication was not his and that it belongs to
another inmate. He asserts that he was scared as he waited for a doctor, but only a nurse
came to see him around 2:00 a.m. At that time, plaintiff’s nose was stuffed up, he could
not breathe, and he was light-headed. According to plaintiff, he wrote a grievance

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regarding Nurse Kovalchuk for attempting to give him someone else’s medication on three
occasions. He still does not feel well, throws up blood, has constant migraines, and
diarrhea. Staff members have been ignoring the problem that plaintiff believes they
caused, and he is taking another medication for his stomach. Plaintiff claims that these
actions constituted malpractice, violated his constitutional rights and entitle him to
monetary relief.
An attachment to the complaint raised separate claims against defendants David
A. Clarke, Jr. and Richard Schmidt based on the conditions of confinement at the
Milwaukee County Correctional Facility (Jail). According to plaintiff, since May 13, 2011,
he has been on “General Population Restricted” status under which he has no mail,
visitation, telephone access, newspaper, or television. Moreover, plaintiff maintains that
he is deprived of his religion. He further alleges that the mattresses are filthy, they are not
cleaned or wiped down, and are dragged on the “nasty” floor by inmate workers who
remove them during the day. Plaintiff adds that his body is breaking out, his cell is “super
cold”, about 40 or 45 degrees, and the vent blows cold air, which caused him to have an
asthma attack.
On January 10, 2012, plaintiff filed a document which appears to be an attempt to
supplement or amend the complaint. This states that plaintiff seeks to sue an assistant
district attorney and Judge Jeffrey Conen for taking his rights from him, thereby leading to
his incarceration at the Jail. He then describes additional Jail conditions which he claims
violate his rights. At the end of this document, plaintiff lists 31 individuals he would like to
sue.

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Based on the court’s reading of the complaint, it appears that plaintiff is attempting
to bring unrelated claims in a single case. 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.” 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.
In George, the Seventh Circuit reminded district courts that Rule 20, Federal Rules
of Civil Procedure, applies as much to prisoner cases as it does to any other case. 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.”
Here, plaintiff’s attempt to consolidate the initial complaint, the attachment, and the
January 10, 2012, document violates Rules 18 and 20 insofar as they advance unrelated
claims against multiple defendants. The George court instructed that such “buckshot
complaints” should be “rejected.” Id. Therefore, plaintiff will be allowed to file an amended
complaint in this case incorporating only properly related claims. Any unrelated claims
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must be brought in separate actions. Plaintiff should carefully consider the claims he
intends to pursue in this case because in a multi-claim, multi-defendant suit, each claim
will be evaluated for the purpose of 28 U.S.C. § 1915(g). If any claim in a complaint is
frivolous, malicious, or fails to state a claim upon which relief can be granted, plaintiff will
incur strikes. See George, 507 F.3d at 607.
Because an amended complaint supersedes a prior complaint, 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). If plaintiff files
an amended complaint, it will become the operative complaint in this action, and that
amended complaint will be screened in accordance with 28 U.S.C. § 1915A.
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).

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 he brings in an
amended complaint, plaintiff must identify each defendant and specify the manner in which
that defendant’s actions, or failure to take action, violated particular constitutional rights.
Finally, plaintiff has filed a request that the court appoint him an attorney. Although
civil litigants do not have a constitutional or statutory right to appointed counsel, the court
has the discretion to request attorneys to represent indigents in appropriate cases pursuant

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to 28 U.S.C. § 1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007); Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th
Cir. 1995)). As a threshold matter, litigants must make a reasonable attempt to secure
private counsel on their own. Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288. Once this
threshold burden has been met, the court must address the following question: given the
difficulty of the case, does this plaintiff appear competent to try the case himself and, if not,
would the presence of counsel likely make a difference in the outcome of the case. Pruitt,
503 F.3d at 654-655 (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)).
In this case, plaintiff has not provided any indication that he has unsuccessfully
attempted to obtain legal counsel on his own. Plaintiff should provide the court with the
names and addresses of counsel he has contacted. Moreover at this state, the issues in
this case appear to be straightforward, uncomplicated and do not require the involvement
of appointed counsel. Therefore,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
IT IS FURTHER ORDERED that the complaint submitted on November 16, 2011,
is hereby stricken.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket 11)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to amend complaint (Docket 11)
is GRANTED.

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IT IS FURTHER ORDERED that plaintiff is directed to file an amended complaint,
using the enclosed form, on or before April 13, 2012, which contains only related claims
in accordance with this Order.
IT IS FURTHER ORDERED that the Clerk’s Office mail plaintiff a prisoner civil rights
complaint form.
IT IS FURTHER ORDERED that if plaintiff does not file an amended complaint by
April 14, 2012, that complies with the requirements of Rules 18 and 20, Federal Rules of
Civil Procedure, this action will be dismissed for failure to prosecute.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time and for order
to demand jail to send payment (Docket 14) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Milwaukee County Sheriff shall collect from
plaintiff’s prisoner trust account the $325.00 balance of the filing fee by collecting monthly
payments from 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.
IT IS ALSO ORDERED that copies of this order be sent to the Milwaukee County
Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department
of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and
legal material to:

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Honorable Charles N. Clevert, Jr.
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Dated at Milwaukee, Wisconsin, this 14th day of March, 2012.
BY THE COURT

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

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