Hashim v. Hamblin et al

Filing 36

DECISION AND ORDER signed by Judge Lynn Adelman on 10/9/15 granting 25 Motion to Alter Judgment to the extent that the plaintiff is not required to file an amended complaint; denying 25 Motion to Stay; denying 26 Motion for Reconsideration; denying 28 Motion for Recusal; denying as moot 29 Motion for Extension of Time; denying 30 Motion to Appoint Counsel. Further ordering the Clerk of Court to refund to the plaintiff the $3.60 overpayment of the filing fee. Further ord ering that all claims contained in Counts IV and V of the complaint are dismissed without prejudice and that the allegations contained in Counts IV and V are deemed stricken from the complaint. Further ordering that all claims in Counts IIII asserte d against any defendant other than Preberg, Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrum, Cummings, Hilbert, Comeau, Steudl, and Schultz are dismissed for failure to state a claim upon which relief can be granted. Fur ther ordering that all defendants other than Preberg, Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrum, Cummings, Hilbert, Comeau, Steudl, and Schultz are dismissed as parties to this case. Further ordering that copies of plaintiffs complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendants and the defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AKINBO J.S. HASHIM,
also known as John D. Tiggs, Jr.,
Plaintiff,
v.

Case No. 14-C-1265

GARY HAMBLIN, et al.,
Defendants.

DECISION AND ORDER
The plaintiff, a Wisconsin state prisoner, filed a pro se complaint under 42 U.S.C.
§ 1983, alleging that defendants violated his civil rights. On December 18, 2014, I denied
the plaintiff’s motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(g). Plaintiff subsequently paid the full filing fee. On April 22, 2015, I screened the
126-page complaint, which sues 40 named defendants and John Does 1-100. See 28
U.S.C. § 1915A. Citing Kadamovas v. Stevens, 706 F.3d 843 (7th Cir. 2013), I determined
that the complaint was too long. I provided the plaintiff with an opportunity to file an
amended complaint using the court’s form complaint. See Civil L.R. 9 (E.D. Wis.). I
directed that the plaintiff should limit his complaint to the form complaint and that he could
submit up to five additional pages if needed. I also advised the plaintiff that he could not
join unrelated claims against different defendants in a single lawsuit. In the April 22, 2015
order, I also denied the plaintiff’s motion for a temporary restraining order and a preliminary
injunction, and I denied his motion for reconsideration of my December 18, 2014, order
denying his motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(g).

The plaintiff did not file an amended complaint. Instead, he filed a motion objecting
to the April 22, 2015 screening order and for related relief (ECF No. 25). He also filed a
motion for reconsideration of the screening order (ECF No. 26). Next, the plaintiff filed a
motion for recusal (ECF No. 28), and a motion for extension of time to file an amended
complaint (ECF No. 29). Lastly, the plaintiff filed a motion to appoint counsel (ECF No.
30). I will address these motions below.
I.

Motion Objecting to Order Entered on April 22, 2015
In this motion, the plaintiff objects to my last screening order to the extent that it

required him to file an amended complaint using the court’s form complaint and up to five
additional pages. The plaintiff contends that, given that the complaint includes five counts
spanning three years and names over forty defendants, it would be virtually impossible to
fit his claims into that amount of space and also state plausible claims for relief. He
proposes that he submit an amended complaint limited to fifteen to twenty pages per claim.
He also points out that I did not explain to him precisely why I found his lengthy complaint
unintelligible and did not give him sufficient guidance as to what to include in his amended
complaint. Having reviewed the plaintiffs motion, I now agree that requiring him to file a
new complaint that is limited to this district’s form complaint and five additional pages is not
the best way to proceed. Rather, I will simply screen the existing complaint, a task to which
I now turn.
An initial problem is that the complaint attempts to join unrelated claims against
different defendants into a single suit, in violation of the rules of civil procedure governing
joinder of claims and parties. See Fed. R. Civ. P. 18, 20(a)(2). Under those rules,
“[u]nrelated claims against different defendants belong in different suits,” not only to
2

prevent bloated complaints such as the one Hashim filed, but also to ensure that prisoners
do not use joinder to circumvent the limitations of the Prison Litigation Reform Act. George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Hashim’s complaint is divided into five “counts,” and each count contains a number
of different claims against various defendants arising out of his confinement at Green Bay
Correctional Institution (“GBCI”). (The plaintiff is currently confined at the Wisconsin
Secure Program Facility (“WSPF”).) The claims included in Counts I–III are generally
related, in that they involve a series of events surrounding a set of “security precautions”
imposed on Hashim while he was confined in a segregation unit. These claims arise out
of the same series of transactions or occurrences and will involve at least one common
question of law or fact, and thus the defendants to these claims are properly joined under
Rule 20(a)(2). However, the claims included in Counts IV and V are not related to the
claims in Counts I–III and are not related to each other. The events described in Counts
I–III occurred between March 2010 and August 2010. Count IV describes events that
began at the end of March 2011—mainly a series of allegedly unlawful actions taken by
a “Captain Brant,” who is not a defendant to the claims asserted in Counts I–III. Count V
describes a series of events that occurred between May 13, 2011 (Compl. ¶ 268) and
August 2013 (Compl. ¶ 3751). Count V alleges, among other things, that (a) certain

1

A numbering error occurs on pages 116–17 of the complaint. The last numbered
paragraph on page 116 is 393, and the first numbered paragraph on page 117 is 344. This
has resulted in the complaint containing two paragraphs corresponding to each number
between 344 and 384. To make clear which paragraph in this range I am citing, I have
underlined the number if it is the second paragraph corresponding to the number. Thus,
¶ 375 means the paragraph that appears on page 123 of the complaint, not the paragraph
that appears on page 113.
3

defendants unlawfully prevented the plaintiff from serving as a jailhouse lawyer by
unreasonably interpreting orders issued by state and federal courts, (b) certain other
defendants discontinued the Department of Corrections’ inmate-to-inmate legal mail
system in order to retaliate against the plaintiff, (c) still other defendants violated the
plaintiff’s rights by assigning him a violent cellmate, and (d) other defendants denied him
access to the courts by denying him legal loans. Although some of the claims within Count
V might be related to each other, they are not related to the claims in Counts I–III or to the
claims in Count IV, and they purport to join as defendants parties who are not defendants
to the other counts.2
For these reasons, I will dismiss the claims in Counts IV and V from this case. The
dismissal will be without prejudice to the plaintiff’s filing new lawsuits corresponding to each
group of related claims. If the plaintiff wishes to pursue all of his claims against all of the
defendants, he will likely need to file at least two additional suits—one for the claims in
Count IV, and one for the claims in Count V. I express no view as to whether all of the
claims within Count IV may be included in a single lawsuit or whether all of the claims in
Count V may be included in a single lawsuit. I also express no view on whether any of the
claims in Counts IV and V have merit or would survive screening.

2

The plaintiff might contend that all of the claims in all five counts are related
because they are all part of a conspiracy to violate his rights that spanned three-and-onehalf years and involved all 140 defendants. However, if this is the case, I reject his
allegation of conspiracy on the ground that it is implausible. See, e.g., Bell Atl. Corp. v.
Twombly, 550 U.S. 544 2007). The complaint contains no facts giving rise to a reasonable
inference that all 140 defendants (or even only the 40 named defendants) were part of a
single conspiracy to violate the plaintiff’s rights or that every event described in the
complaint was part of such a conspiracy.
4

Because the claims in Counts I–III are properly joined, I will now review them to
determine whether they state claims for relief. The first claim is a claim for retaliation
against Sergeant Preberg. In this claim, Hashim contends that Preberg wrote a false
conduct report against him as retaliation for initiating an administrative grievance. See
Compl. ¶¶ 38–47. This is a valid claim against Preberg and may proceed. See, e.g.,
Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010) (elements of First Amendment
retaliation claim).
The second claim relates to a set of “security precautions” that defendant Erickson
imposed on the plaintiff while he was in segregation. See Compl. ¶ 49. The plaintiff
alleges that Erickson issued the security precautions after learning about the conduct
report authored by Preberg. The plaintiff notes that he was eventually found not guilty of
the conduct Preberg accused him of, but that Erickson nonetheless decided to leave the
security precautions in place.
The plaintiff seems to contend that the security precautions implicated a liberty
interest and therefore could not be imposed unless he was afforded due process, which
he contends he was not. However, the security precautions could implicate a liberty
interest only if they imposed an atypical and significant hardship in relation to the ordinary
incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995). I conclude that the
security precautions, as written, did not impose such a hardship.3 The security precautions
provided as follows: (a) whenever the plaintiff was removed from his cell, a security

3

As discussed below, certain defendants may have applied the security precautions
against the plaintiff in a manner that violated his rights. However, for the moment I am
assessing only whether the security precautions, as written, implicated a liberty interest.
5

supervisor would be present with an “intermediate weapon,” (b) cleaning supplies could be
used only under the direct supervision of security staff, (c) the plaintiff would be required
to write with a crayon rather than a pen, (d) the plaintiff would be required to use a “finger
toothbrush” rather than a regular toothbrush, and (e) the plaintiff would have to go to the
back of his cell and kneel down whenever the “trap” of his cell was opened. Compl. ¶ 49.
These restrictions, although likely unpleasant, are “too limited to amount to a deprivation
of constitutional liberty.” Miller v. Dobier, 634 F.3d 412, 415 (7th Cir. 2011). Courts have
deemed an inmate's liberty interest implicated only where the conditions are far more
restrictive. See, e.g., Wilkinson v. Austin, 545 U.S. 209 223–24 (2005) (inmate denied
human contact and subjected to lights during every hour of confinement); Gillis v. Litscher,
468 F.3d 488, 490–91, 493–94 (7th Cir.2006) (inmate in “Behavioral Modification Program”
denied any bedding or clothing and deprived of nearly all human contact or sensory
stimulation); Westefer v. Snyder, 422 F.3d 570, 589 (7th Cir.2005) (inmate subjected to
severe limitations on contact with others, showers, exercise, attorney visits, and access to
personal property). Thus, defendant Erickson is not liable for promulgating the security
precautions without affording the plaintiff due process.
The plaintiff’s next set of claims relates to how certain correctional officers applied
the security precautions against him. The plaintiff alleges that, in February 2010, a doctor
at Green Bay Correctional Institution gave the plaintiff a medical restriction against
kneeling. The plaintiff alleges that this medical restriction was recorded on the outside of
the plaintiff’s cell door, such that all corrections officers could see it. Compl. ¶ 87. Despite
this, between March 18, 2010 and June 26, 2010, several guards refused to serve the
plaintiff his meals or provide him with his hypertension medication through the “trap” of his
6

cell unless he first complied with the kneeling requirement of the security precautions.4
Compl. ¶¶ 88–100. The plaintiff refused to kneel, which resulted in him not receiving his
meals or his medications. The plaintiff alleges that he lost 24 pounds during this time.
These allegations state claims under the Eighth Amendment for the infliction of cruel and
unusual punishment. See, e.g., Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015).
The plaintiff will be allowed to proceed on such claims against the following defendants,
who are the corrections officers who refused to provide him with meals and medicine
unless he kneeled in violation of the medical restriction: Longsine, Dillenberg, DeBroux,
VanLoo, Keiler, Giffin, Mommaerts, Segerstrum, Cummings, Hilbert, Preberg, Comeau,
and Steudl.5
Next, the plaintiff asserts claims based on six incidents in which he was disciplined
for using a pen in violation of the security precautions. One of the security precautions
stated as follows: “You [Hashim] will not be given a pen, a crayon will be issued to you
instead.” Compl. ¶ 49. On six occasions, corrections officers wrote conduct reports

4

The plaintiff alleges that, by March 26, 2010, the kneeling requirement in the
security precautions had been changed to a sit-down requirement in order to accommodate
his medical restriction. Compl. ¶ 110. However, the plaintiff alleges that various
corrections officers continued to enforce the kneeling requirement through June 26, 2010.
E.g., Compl. ¶¶ 88, 89, 91. I assume that there is a typo in paragraph 110 and that the
security precautions were not changed until June 26, 2010.
5

The plaintiff seeks to assert an Eighth Amendment claim against Erickson, the
defendant who promulgated the security precautions. However, the plaintiff has not
alleged that Erickson knew when promulgating the security precautions that the plaintiff
had a medical restriction against kneeling or that he refused to modify the precaution once
he learned of the restriction. Nor has the plaintiff alleged that Erickson personally denied
him food or medication due to his refusal to kneel. Thus, the plaintiff has not alleged that
Erickson knew of and disregarded an excessive risk to the plaintiff’s health or safety and
therefore has not stated an Eighth Amendment claim against him. E.g., Gevas, 798 F.3d
at 480.
7

against the plaintiff for possessing or using a pen in violation of this precaution. A
disciplinary committee found the plaintiff guilty of disobeying orders in connection with each
incident and imposed discipline—usually a loss of recreation privileges for a certain
number of days. The plaintiff seems to claim that writing conduct reports and disciplining
him in connection with these incidents was unfair, as the security precautions did not state
that he was prohibited from using a pen, only that staff would not issue him a pen. He thus
seems to be attempting to state a claim for the deprivation of liberty without due process
of law—more specifically, that he was punished without adequate notice of what
constitutes prohibited conduct. See Rios v. Lane, 812 F.2d 1032, 1037–38 (7th Cir. 1987).
To the extent that the plaintiff was punished for possessing a pen while he was in his cell,
he does not have a claim. Although it is true that the security precautions state only that
the plaintiff would not be given a pen, clearly the intent of the rule was that he not have a
pen at all while he was in his cell, and that he would use a crayon instead. The plaintiff
cannot seriously contend that he did not know that he was not supposed to possess or use
a pen while he was in his cell. However, the plaintiff also alleges that he was punished for
using a pen in the prison library that was given to him by library staff, Compl. ¶ 114, and
that he was punished for using a pen while he was temporarily housed at the Grant County
Jail that was given to him by the jail’s staff, Compl. ¶ 157. It is at least arguable that the
security precautions did not give the plaintiff adequate notice that he was prohibited from
using a pen under either of these circumstances.
Still, before the plaintiff could proceed on a due process claim in connection with
these two incidents, it must be the case that the discipline he received for those incidents
deprived him of liberty. Yet the discipline Hashim received for the Grant County incident
8

was limited to loss of recreation privileges for seven days, Compl. ¶ 157, which does not
rise to the level of an atypical and significant hardship. See Acre v. Walker, 139 F.3d 329,
336 (2d Cir. 1998) (finding that depriving inmate of exercise for several days does not
implicate a liberty interest).6 The punishment was more severe in the case of the library
incident—Hashim received 90 days of disciplinary segregation. However, periods of
disciplinary segregation lasting up to 90 days generally do not deprive an inmate of liberty.
See Marion v. Columbia Correctional Institution, 559 F.3d 693, 697–98 & nn. 2–3 (7th Cir.
(collecting cases holding that segregated confinement of 2 to 90 days does not implicate
liberty interest); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir.2005) (concluding that up to 90
days in segregation does not affect liberty). Moreover, the punishment for the library
incident was for more than just using a pen—the same conduct report also charged him
with disrespect and disruptive conduct. Compl. ¶ 117. These latter charges appear to
have been issued after the plaintiff used coarse language in an argument with a
corrections officer over the interpretation of the pen restriction. See Compl. ¶¶ 116–18.
Thus, the entire 90-day stay in segregation cannot be considered punishment for using a
pen while in the prison library. Accordingly, because the two pen incidents involving
questionable interpretations of the security precautions did not result in deprivations of
liberty, the plaintiff may not proceed on due process claims in connection with those
incidents.

6

In connection with other disciplinary infractions, Hashim was deprived of recreation
for periods lasting longer than seven days, and the seven-day period associated with the
Grant County incident seems to have run consecutively to those other periods. However,
this does not transform the seven-day period into a deprivation of liberty, as those other
periods of loss of recreation were imposed as punishment for different infractions.
9

Next, the plaintiff asserts a claim against defendants Longsine and Schultz in
connection with their decision to deprive him of meal utensils for a period of 72 hours and
then serve him food such as pudding, mashed potatoes, and soup, which the plaintiff
would have to eat with his hands. Compl. ¶¶108–09. This is a valid claim: it alleges that
Longsine and Schultz had no legitimate reason to deprive the plaintiff of utensils, that they
did so only to see him humiliated when he tried to eat things likes mashed potatoes and
soup with his hands, and that therefore they subjected him to cruel and unusual
punishment. See Hudson v. Palmer, 468 U.S. 517, 530 (1984) (Eighth Amendment
protects against “calculated harassment unrelated to prison needs”); Powers v. Snyder,
484 F.3d 929, 932–33 (7th Cir. 2007) (noting that conduct intended to humiliate a prisoner
can amount to cruel and unusual punishment). Therefore, this claim may proceed.
Next, the plaintiff asserts a claim in connection with discipline he received for
possessing property in excess of the two-grocery-bag limit that applies to inmates in
segregation. Compl. ¶¶ 161–65. The plaintiff disputes that he actually possessed property
in excess of the limit. However, the plaintiff was afforded a hearing on the charge of
possessing excess property, at which he attempted to prove that all of his property fit into
two grocery bags. He was found guilty after the hearing and sentenced to 30 days loss of
recreation privileges. It is doubtful that 30 days loss of recreation implicates a liberty
interest, but even if it does, the plaintiff was afforded due process: he was given a hearing
and does not point to any procedural defects in the hearing process. Thus, the plaintiff has
not stated a due-process claim in connection with this incident.
Finally, in Count III, the plaintiff argues that, under the Wisconsin administrative
regulations governing prison discipline, penalties for infractions cannot run consecutively
10

to each other. Compl. ¶¶ 172–78. He argues that the various defendants who presided
over his disciplinary hearings violated these regulations whenever they ordered a
disciplinary penalty to run consecutively to another penalty. However, violations of state
regulations are not actionable under § 1983, see Scott v. Edinburg, 346 F.3d 752, 760 (7th
Cir. 2003), and thus the plaintiff may not proceed on any claim involving the question of
whether, under state law, disciplinary penalties may run consecutively to each other.7
In sum, having screened the claims in Counts I–III of the complaint, I conclude that
the plaintiff may proceed on (1) a retaliation claim against Preberg; (2) Eighth Amendment
claims against the corrections officers who denied him food and medicine when he refused
to kneel in violation of his medical restriction (i.e., Longsine, Dillenberg, DeBroux, VanLoo,
Keiler, Giffin, Mommaerts, Segerstrum, Cummings, Hilbert, Preberg, Comeau, and Steudl);
and (3) Eighth Amendment claims against Longsine and Schultz for forcing the plaintiff to
eat foods such as mashed potatoes and soup without earing utensils. All other claims in
Counts I–III are dismissed for failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915A(b)(1). Further, all claims asserted in Counts IV and V are
dismissed without prejudice for improper joinder. All defendants other than Preberg,

7

The plaintiff seems to contend that the consecutive/concurrent distinction is
relevant to whether he was subjected to an atypical and significant hardship. See Compl.
¶ 178. However, even if it were, the most that would show is that the plaintiff’s interest in
liberty was affected by the consecutive penalties. It would not show that the consecutive
penalties were imposed without due process of law. In this regard, the plaintiff does not
identify any process he believes he was “due” before he could be subjected to consecutive
disciplinary sentences. Thus, I can detect no viable federal claim arising out of the
question of whether, under Wisconsin law, disciplinary penalties may run consecutively to
each other.
11

Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrum,
Cummings, Hilbert, Comeau, Steudl, and Schultz will be dismissed from this case.
II.

Motion for Reconsideration
Plaintiff has filed a motion for reconsideration of my April 22, 2015 order to the

extent it denied his motion for a temporary restraining order and preliminary injunction.
The plaintiff’s original motion for a TRO and preliminary injunction requested three forms
of relief. First, the motion requested that someone (it is not clear who) be ordered to
provide Hashim with adequate medical care for injuries he sustained in an incident in which
correctional officers used excessive force against him resulting in “a hole in his lower lip,
a chipped tooth, cut gums, a walnut size knot, swollen facial tissue, and an exacerbated
back injury.” ECF No. 10. at 13. No allegations relating to this incident or the lack of
adequate medical treatment for the resulting injuries appear in the complaint, and none of
the named defendants in the complaint appear to have been responsible for providing
Hashim with medical care while at Green Bay Correctional Institution. Moreover, the
plaintiff has since been transferred to the Wisconsin Secure Program Facility. If the
plaintiff believes that he is not receiving adequate medical care at that facility, he must file
a new lawsuit naming as defendants the individuals at that facility who are responsible for
providing him with such care. The plaintiff may then file a motion for preliminary relief in
that action, if he believes that the requirements for obtaining such relief have been met.
Second, the original motion alleged that the plaintiff was being denied access to the
courts because defendants Legois (a financial specialist at GBCI) and Olmanson (an
attorney at the Department of Corrections) were preventing him from obtaining legal loans.
The motion for preliminary relief asked that the defendants be ordered to cease collecting
12

funds from his prison account and that they be required to provide him with legal loans.
This request is connected to a claim that Hashim sought to assert in Count V of the
complaint. See Compl. ¶¶ 369–73. However, that count, and defendants Legois and
Olmanson, have been dismissed from this case for improper joinder. If the plaintiff
believes that the financial decisions of DOC officials are still denying him access to the
courts, he must file a separate suit and, if he believes he is suffering irreparable harm,
seek injunctive relief in that suit. He may not seek that relief in connection with this suit,
which is now limited to claims based on the security precautions.
Finally, the plaintiff’s original motion for injunctive relief sought an order requiring the
defendants “to end their retaliatory actions against Hashim, suspend the disciplinary
sanctions that are based on the mendacious allegations from prison staff and order the
immediate transfer of the plaintiff to an out-of-state prison or one other than GBCI.” ECF
No. 10 at 15. To the extent that this request for relief was ever related to the claims alleged
in the complaint, it no longer is. The surviving claims relate to the security precautions
imposed in March 2010 at GBCI, and no injunctive relief would be appropriate based on
those claims. Moreover, the plaintiff has been transferred to WSPF, and the complaint
contains no allegations of retaliation occurring at that institution. To the extent that the
plaintiff believes he is currently suffering irreparable harm because of ongoing retaliation
occurring at WSPF, he must file a separate suit against the officials at WSPF who are
subjecting him to such harm and seek injunctive relief as part of that suit.
Since the time when the plaintiff filed his original motion for preliminary injunctive
relief, he filed supplemental motions in which he sought to expand his request for relief.
See ECF Nos. 18 & 22. However, the relief requested in these supplemental motions is
13

not related to the subject of this suit (the March 2010 security precautions) and cannot
properly be included in this suit. Therefore, I will not grant the relief requested in the
supplemental motions.
In short, the plaintiff’s motion for a TRO and preliminary injunction, and his motions
to supplement that motion, were properly denied. For this reason, the plaintiff’s motion for
reconsideration of my denial of those motions is also denied.
III.

Motion for Recusal
The plaintiff has filed a motion requesting that I recuse myself from this case.

Section 455(a) of Title 28 of the United States Code requires a federal judge to “disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.” In his
motion, the plaintiff does not point to any facts suggesting that my impartiality might
reasonably be questioned. Instead, he notes that I have entered various rulings that are
adverse to him and have otherwise administered this case in ways that he does not like.
See ECF No. 28 at ¶ 18. These are not grounds for recusal. Accordingly, I will deny the
plaintiff’s motion for recusal.
IV.

Motion to Appoint Counsel
The plaintiff has filed a motion for appointment of counsel. In a civil case, the court

has discretion to decide whether to recruit a lawyer for someone who cannot afford one.
Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v. Wexford
Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has
to make a reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable attempt to hire counsel,
the court then must decide “whether the difficulty of the case —factually and legally—
14

exceeds the particular plaintiff’s capacity as a layperson to coherently present it.” Navejar,
718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). To decide that, the court looks, not only
at the plaintiff’s ability to try his case, but also at his ability to perform other “tasks that
normally attend litigation,” such as “evidence gathering” and “preparing and responding to
motions.” Id.
Here, the plaintiff has satisfied the threshold requirement of trying to find an attorney
on his own. However, his filings reveal that he is competent to proceed on his own at this
stage. Plaintiff’s motion is based in part on my initial decision to reject the original
complaint and order him to file a short amended complaint using the court’s form. As
indicated, I have reconsidered that decision and have instead allowed the plaintiff to
proceed on the viable federal claims that the plaintiff properly joined in a single suit. Thus,
the plaintiff no longer requires assistance in drafting his complaint. In any event, I conclude
that the plaintiff is competent to litigate on his own the claims relating to the security
precautions that I have allowed to proceed. Those claims are relatively straightforward and
should not require extensive discovery, and the plaintiff is an experienced litigator. For
these reasons, I will deny the plaintiff’s motion to appoint counsel.
V.

Filing Fee
Finally, I address an administrative matter than the plaintiff has called to my

attention. Before I denied the plaintiff’s motion to proceed in forma pauperis on the basis
of the three-strikes rule, I assessed, and the plaintiff paid, an initial partial filing fee of
$3.60. In my order denying the motion to proceed in forma pauperis, I ordered the plaintiff
to pay the full $400 filing fee. The plaintiff then paid that amount, which when combined

15

with his initial partial filing fee, resulted in him paying a total filing fee of $403.60. I will
direct the Clerk of Court to refund the $3.60 overpayment.
CONCLUSION
For the reasons stated, IT IS ORDERED that plaintiff’s motion objecting to decision
and order and to alter judgment (ECF No. 25) is GRANTED to the extent that the plaintiff
is not required to file an amended complaint.
IT IS FURTHER ORDERED that plaintiff’s motion to stay (ECF No. 25) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for reconsideration (ECF No. 26)
is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for recusal (ECF No. 28) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to file
amended complaint (ECF No. 29) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (ECF No. 30)
is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court refund to the plaintiff the $3.60
overpayment of the filing fee.
IT IS FURTHER ORDERED that all claims contained in Counts IV and V of the
complaint are dismissed without prejudice and that the allegations contained in Counts IV
and V are deemed stricken from the complaint.
IT IS FURTHER ORDERED that all claims in Counts I–III asserted against any
defendant other than Preberg, Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin,

16

Mommaerts, Segerstrum, Cummings, Hilbert, Comeau, Steudl, and Schultz are dismissed
for failure to state a claim upon which relief can be granted.
IT IS FURHTER ORDERED that all defendants other than Preberg, Longsine,
Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrum, Cummings, Hilbert,
Comeau, Steudl, and Schultz are dismissed as parties to this case.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice
for service on the state defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, the defendants shall file a responsive
pleading to the complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the Court. The Prisoner E-Filing Program is in effect at Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun Correctional Institution,
and Wisconsin Secure Program Facility and, therefore, if the plaintiff is no longer
incarcerated at one of those institutions, he will be required to submit all correspondence
and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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The plaintiff is further advised that failure to make a timely submission may result
in the dismissal of this action for failure to prosecute. In addition, the parties must notify
the Clerk of Court of any change of address. Failure to do so could result in orders or
other information not being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 9th day of October, 2015.

s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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