Benson v. Bonnett et al

Filing 13

ORDER DISMISSING CASE signed by Judge J P Stadtmueller on 9/25/15 for failure to state a claim: the Clerk of Court shall document that this inmate as brought an action that was dismissed for failure to state a claim and that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: Plaintiff, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY DELANE BENSON,
Plaintiff,
v.

Case No. 15-CV-513-JPS

DR. DENISE BONNETT, R.N. DAVE,
BETH DITTMANN, MICHAEL PATTEN,
JOANNE BOVEE, JAMES SCHWOCHERT,
KAREN GOURLIE, DR. KELLEY,
N.P. LUKAS, HSM MCCREEDY,
KELLY SALINAS, KEISHA PERRENOUD,
CHARLES FACKTOR, MR. FOSTER,
CINDY O’DONNELL, N. BOWENS,
DR. MURPHY, K. VAN HORN, R.N. SMITH,
J. SAIBERLICH, HSM FOSTER,
THERESA MURPHY, MR. TESS,
JUDY P. SMITH, LON BECHER,
DR. JILL M. MIGON, ALAN BURKE,
ALLAN MADISON, and JANE/JOHN DOES,

ORDER

Defendants.
The plaintiff, who is incarcerated at Oshkosh Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). On June 10, 2015, this Court granted the plaintiff’s
motion to proceed in forma pauperis and conducted an initial screening of his
originally filed complaint. (Docket #8). Due to various deficiencies, the Court
directed Plaintiff to file an amended complaint (Docket #8), which he did on
July 13, 2015. (Docket #11).
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v. Bd.
of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that in such instances, the

“prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general
matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006)). If an amended complaint is received, it will be
screened pursuant to 28 U.S.C. § 1915A.
As in an originally filed complaint, the Court is required to screen an
amended complaint brought by a prisoner 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).

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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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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 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);
Christopher, 384 F.3d at 881.
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
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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)).
Despite the Court’s willingness to construe prisoner complaints
liberally, it would stretch the bounds of the Federal Rules of Civil Procedure
and relevant Seventh Circuit case law to permit the instant action to proceed.
While the Court attempted to highlight the deficiencies of plaintiff’s
originally filed complaint in its June 26, 2015 screening order (Docket #8), the
plaintiff’s amended complaint advances his case no further. (Docket #11). The
amended complaint continues to allege disparate injuries to the plaintiff’s
back and feet as against over 30 defendants. (Docket #11). These incidents
spanned the course of over 2 years, during which time the plaintiff interacted
with the named defendants at no less than three correctional facilities.
(Docket # 11). While plaintiff goes to great lengths to explain what medically
transpired during his incarceration at each of the facilities, the unifying
thread connecting these people, places, and occurrences is fatally
imperceptible. Moreover, while the Court acknowledges the plaintiff’s
request to consolidate his allegations into a single complaint (Docket #11), the
Court cannot, even for pro se litigants, disregard both mandates of Federal
Rules and the binding law on this Court.
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”
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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.
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 unrelated claims against multiple defendants at three separate
prisons. The George court instructed that such “buckshot complaints” should
be “rejected.” Id. Because this plaintiff has provided no arguable basis for
relief, having failed to make any rational argument in law or fact to support
his claims, the court will dismiss the amended complaint submitted on July
13, 2015. (Docket #11). See Gladney, 302 F.3d at 774; House v. Belford, 956 F.2d
711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir.
1988), aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)). While this Court
takes seriously the command of Federal Rule of Civil Procedure 15 to “ freely
give leave [to amend] when justice so requires,” the Court sees little to no
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advancement of this amended complaint from the plaintiff’s original filing.
In consideration of the efforts that remain to cure these outstanding defects,
the Court views it unnecessary to grant further opportunity to amend.
Accordingly,
IT IS ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has brought an action that was dismissed for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1);
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a "strike" under 28 U.S.C. §1915(g); and
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.
THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the
plaintiff offers bonafide arguments supporting his appeal.
The Clerk of Court shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of September, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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