Mark v. Department of Corrections et al

Filing 10

ORDER signed by Judge J P Stadtmueller on 6/3/14: STRIKING 1 Plaintiff's complaint; directing Plaintiff to file an amended complaint on or before 7/3/14; if Plaintiff does not file an amended complaint by 7/3/14 that complies with the requirements specified, this action will be dismissed for failure to prosecute. See Order. (cc: Plaintiff, Warden of Stanley Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JONATHON M. MARK,
Plaintiff,
v.
WISCONSIN DEPARTMENT OF
CORRECTIONS, MS. METZEN,
C.O. II CODOTTE, LT. TESS,
MARK WEISBERGER, JUDY SMITH,
CAPT. SCHAUB, TIM PIERCE, LT. KUSTER,
CHAPLAIN REINKE, CHAPLAIN CLARK,
JENNY DELAUX, MS. FERMANICH,
C.O. II BURROWS, SGT. TONI,
MS. BLODGETT, SGT. JACKSON,
JANE DOE sued as Ms. “G,”
TIMOTHY DOUMA, CAPT. HOULE,
C.O. II KLICK, CAPT. MEITZEN,
LT. BARBER, CAPT. THOMPSON,
LT. DOMAN, JOHN AND JANE DOES,
and LT. FINK,

Case No. 14-CV-447-JPS

ORDER

Defendants.
The plaintiff, who is currently incarcerated at Stanley Correctional
Institution, filed a pro se civil rights complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated during his time at Oshkosh
Correctional Institution. (See, e.g., Compl. ¶ 1 (discussing “OSCI staff”;
“OSCI” is the Wisconsin Department of Corrections’ abbreviation for
Oshkosh Correctional Institution, see http://doc.wi.gov/families-visitors/
find-facility/ oshkosh-correctional-institution). This matter comes before the
court on the plaintiff's petition to proceed in forma pauperis.
The plaintiff was assessed an initial partial filing fee of $51.07, and
paid the entire $350.00 filing fee on May 22, 2014. (Docket #9).

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,
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)). 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, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a complaint must contain

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sufficient factual matter, accepted as true, “that is plausible on its face.” Id.
(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 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, 556 U.S. at 679. 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 the 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)).
The plaintiff’s complaint is very complex. It alleges many different
claims against many different defendants. To the best of its ability, the Court
can identify the following claims:

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1.

Two (2) RICO-related claims:
a.

b.

2.

the first against unnamed staff for receiving “kickbacks”
from UPS for using UPS’ shipping services (Compl.
¶ 1); and
the second against named staff who allegedly retaliated
against the plaintiff for raising RICO violations in April
and May of 2014 (Compl. ¶ 4).

Four (4) First Amendment claims relating to an alleged denial
of meaningful access to the Courts:
a.

b.

the second against separate, named staff for failing to
provide adequate legal resources on an unspecified date
(Compl. ¶ 3);

c.

the third against named staff who allegedly interfered
with the plaintiff’s ability to exhaust his remedies by not
providing copies of complaints, which are necessary for
appeal (Compl. ¶ 6); and

d.

3.

the first against unnamed staff for failing to provide
adequate legal resources on April 16, 2008 (Compl. ¶ 2);

the fourth against named staff for rejecting complaints
that are based upon one incident but allege multiple
causes of action, preventing exhaustion (Compl. ¶ 8).

Three (3) First Amendment claims relating to religious
practices:
a.

the first against named staff who reclassified the
plaintiff as Wiccan and provided Wiccan materials,
when the plaintiff is, in fact, “a Ritual Magician of the
Golden Dawn” (Compl. ¶ 5);

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b.

the second against unnamed staff for improper and
arbitrary enforcement of DOC Adm. Code § 303.70, for
failing to provide Ritual Magician holy book materials
while the plaintiff was in segregation (Compl. ¶ 7); and

c.

the third against named staff for destroying the
plaintiff’s religious material, allegedly in retaliation for
filing a complaint (Compl. ¶ 9).

4.

One (1) First Amendment retaliation claim against named staff
for punishing the plaintiff (in unspecified manner) for
exercising his rights to free speech (Compl. ¶ 17).

5.

Five (5) Due Process claims:
a.

against a named staff-member who “refus[ed] to
compel her staff to answer questions” that the plaintiff
asked regarding alleged destruction of evidence that
could have allegedly proven his innocence in a
disciplinary matter (Compl. ¶ 12);

b.

against named and unnamed staff for restricting access
to legal materials (Compl. ¶ 13);

c.

against named and unnamed staff for “refusing to
provide notice of confidentiality” regarding inmate
complaints (Compl. ¶ 14);

d.

against named and unnamed staff for not allowing the
plaintiff to call witnesses at a disciplinary proceeding
(Compl. ¶ 15); and

e.

against named staff for “violat[ing] the ‘fair play’” by
not sending the completed record (of an unspecified
proceeding) back to the hearing committee (Compl.
¶ 18).

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6.

Three (3) other, vague claims, which do not specify a legal
basis:
a.

an unspecified cause of action against named and
unnamed staff who allegedly “conspire to harass” the
plaintiff based upon reports of opposing conduct
reports and filing repeated complaints, although the
nature of the harassment is not made clear (Compl.
¶ 10);

b.

another unspecified cause of action for retaliation
against named and unnamed staff for meeting in secret
with the object of harassing the plaintiff for opposing
conduct reports and filing complaints, again with the
nature of the harassment being unclear (Compl. ¶ 11);
and

c.

a third unspecified (though perhaps Due Processrelated) cause of action for instituting disciplinary
procedures against the plaintiff for filing a complaint
(Compl. ¶ 16).

This “shotgun” approach to the complaint, by which the plaintiff has
included many different claims against many different named and unnamed
individuals, creates several problems.
To begin, it fails to satisfy Rule 8(a)(2)’s requirement of a “short and
plain statement of the claim showing that the pleader is entitled to relief.” To
be sure, the plaintiff need not plead any specific facts; instead, he need only
“give the defendant fair notice of” the claims he is asserting “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, to state a
claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
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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
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted).
Here, the plaintiff’s claims contain very little factual content. In fact,
the complaint is practically void of any specific factual allegations that would
put the defendant on notice of the claims being levied against them. The most
specific that the plaintiff gets is to provide dates in several paragraphs, but
those dates are not connected to any actual factual allegations. (See, e.g.,
Compl. ¶¶ 4, 9–11, 16).
Moreover, the plaintiff’s complaint does not provide a “plain
statement” of his claims and are largely based upon labels and conclusions.
While the complaint is short, it includes a vast number of claims, many of
which appear unrelated to one another and do not provide a plain statement
of the basis for relief. In addition to being confusing, the claims are largely
based upon conclusory assertions of liability.
The plaintiff’s complaint also runs afoul of Rules 18 and 20 of the
Federal Rules of Civil Procedure. Based on the court’s reading of the
complaint, it appears that the 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 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

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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.
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 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.”
The court finds that the complaint violates Rules 18 and 20 insofar as
it advances multiple unrelated claims against multiple defendants. While
some of the claims relate to identical defendants, the complaint as a whole
does not comport with Rules 18 and 20. The claims are largely unrelated to
one another (or if they are related, then the allegations do not make clear how
they are related). To be clear, the Court simply cannot distinguish between
the myriad claims and myriad defendants to tell which claims satisfy the
George requirements and which do not; the problem is exacerbated by the
complaint’s failings under Rule 8(a)(2).
The George court instructed that such “buckshot complaints” should
be “rejected.” Id. Therefore, the court will strike the original complaint
submitted on April 17, 2014. The Court will, however, allow the plaintiff to
file an amended complaint. The plaintiff should ensure that the amended

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complaint complies with Rules 8(a)(2), 18, and 20. To be clear, this means that
the complaint should join multiple defendants in this action only to the
extent the claims against them arise out of the same transaction or that there
are common facts or law. Fed. R. Civ. P. 20. Likewise, to the extent that the
plaintiff wishes to allege wholly separate claims against wholly separate
defendants, he must do so in a separate suit or suits. Fed. R. Civ. P. 18.
Finally, whichever claims the plaintiff decides to include in his amended
complaint, he should ensure that those claims are based upon a short and
plain statement, including factual allegations sufficient to raise the right to
relief above the speculative level and to give the defendants notice of the
claims against them
The plaintiff is advised that, 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 the plaintiff files
an amended complaint, it will become the operative complaint in this action,
and the court will screen it in accordance with 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that the complaint submitted on April 17,2014, be
and the same is hereby STRICKEN;
IT IS FURTHER ORDERED that the plaintiff is directed to file an
amended complaint on or before July 3, 2014, 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 July 3, 2014, that complies with the requirements of

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Rules 8, 18, and 20, of the Federal Rules of Civil Procedure, this action will be
dismissed for failure to prosecute;
IT IS FURTHER ORDERED that copies of this order be sent to the
warden of the institution where the inmate is confined and to Corey F.
Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice,
P.O. Box 7857, Madison, Wisconsin, 53707-7857; and
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable J.P. Stadtmueller
% 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 3rd day of June, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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