Howard et al v. Walker et al

Filing 30

ORDER signed by Judge Rudolph T. Randa on 11/18/2015. 3 Plaintiffs' MOTION to Certify Class/MOTION to Appoint Counsel DENIED. 5 Plaintiffs' MOTION for Preliminary Injunction DENIED. 17 Plaintiff Weso's MOTION to Withdraw Refusal to Consent GRANTED; Clerk of Court to File [17-1] Weso's Consent to Proceed Before Magistrate Judge. 24 Plaintiff Howard's MOTION for Temporary Restraining Order DENIED. 25 Amended Complaint STRICKEN. Plaintiff(s) may file amended complaint (using enclosed form) by 12/18/2015; failure to file may result in dismissal for failure to prosecute. (cc: all counsel, via mail to all plaintiffs with pro se prisoner complaint form and guide)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA HOWARD, WILLIAM E. WESO,
ADAM YEOMAN, JAMIE BOWENS1,
JARVIS DUKE, CALVIN OTIS, JR.,
DARRELL OTIS, and PHILLIP HERRERA,
Plaintiffs,
-vs-

Case No. 15-CV-557

SCOTT WALKER, EDWARD WALL,
JAMES GREER, SCOTT HOFTICZEN, MD,
KEVIN KALLAS, MD, DONALD HANDS, PHD,
DR. BARBARA RIPANI, LINDA ALSUM,
WILLIAM POLLARD, BELINDA SCHRUBBE,
DR. PAUL SUMNICHT, JEFFREY MANLOVE, MD,
NICOLE KAMPHUIS, ROBERT J. RYMARKIEWICZ,
JOHN R. PRICE, JOHN GRIESER,
DANIEL WINTERS, ZACHARY SWINGEN,
ANN TABB, RN, ANN LARSON, RN,
MARY SLINGER, JUDY SCHAEFER,
KRIS DEYOUNG, KRIS LYONS,
RN GWEN WALTZ, JOHN SCHETTLE,
TODD CALLISTER, SANDRA JOHNSTON,
PAUL LUDVIGSON, JOSH OLSON,
and CAPTAIN ULESKI,
Defendants.

DECISION AND ORDER
The pro se plaintiffs are Wisconsin state prisoners. They have filed

On June 5, 2015, plaintiff Howard filed a letter stating that plaintiff Bowens no
longer wished to participate in this case and requesting removal of his name (ECF No.
23). However, plaintiff Bowens was subsequently named as a plaintiff in the June 16,
2015, amended complaint (ECF No. 25).
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a first amended complaint (ECF No. 25) in which they seek to bring a class
action lawsuit on behalf of current and future prisoners incarcerated at
Waupun Correctional Institution (ECF No. 25). The plaintiffs have filed a
motion for class certification and they seek appointment of class counsel
under Federal Rule of Civil Procedure 23(g) (ECF No. 3). They have filed a
motion for a preliminary injunction (ECF No. 5), and plaintiff Howard has
filed a motion for a temporary restraining order (ECF No. 24).

The

plaintiffs also filed an amended memorandum in support of motion for
class certification (ECF No. 26).
Motion for Class Certification
The plaintiffs, who are all male prisoners confined at the Waupun
Correctional Institution (WCI), seek to bring a class action on behalf of two
classes of prisoners: (1) the WCI Class, and (2) the ADA Subclass. The
plaintiffs allege that overcrowding at WCI has caused serious issues there.
For the WCI Class, the plaintiffs seek to represent a class consisting
of all prisoners who are now or in the future will be confined at WCI. They
allege that the defendants’ over-population of WCI has resulted in
deliberate indifference to the plaintiffs’ serious medical, mental health, and
dental needs in violation of the Eighth Amendment, as well as the sadistic
and malicious use of excessive force in violation of the Eighth Amendment.
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These plaintiffs also allege that the defendants’ policies, practices, and acts
create, sustain, and perpetuate a system of mental health care for male
inmates at WCI that is not comparable, substantially equivalent to, or in
parity with the system of mental health care for female prisoners at
Taycheedah Correctional Institution.
For the ADA Subclass, the plaintiffs seek to represent a class
consisting of all individuals with a disability who are now or in the future
will be confined at WCI.

They allege that the defendants discriminate

against them by failing to provide alternative disciplinary sanctions as
reasonable modifications so that placement in segregation and other
placements that exacerbate mental and/or physical impairments are not
imposed, and by failing to provide a screening process that effectively
identifies prisoners who are mentally unstable or in crisis and prevents
their placement in the harsh conditions at WCI. The plaintiffs also allege
that the defendants discriminate against the ADA subclass plaintiffs by
excluding them from participation in, or denying them the benefits of,
services, programs, or activities on the basis of their disabilities.
With regard to the plaintiffs’ request for class certification, under
Rule 23(a)(4) of the Federal Rules of Civil Procedure, the class must be
provided adequate representation. Because of this requirement, courts
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have repeatedly declined to allow pro se prisoners to represent a class in a
class action. See, e.g., Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) (holding that it would be plain error to permit imprisoned pro se
litigant to represent his fellow inmates in a class action); Caputo v. Fauver,
800 F. Supp. 168, 169-70 (D. N.J. 1992) (“Every court that has considered
the issue has held that a prisoner proceeding pro se is inadequate to
represent the interests of his fellow inmates in a class action.”); see also
Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320, 1321 (10th Cir.
2000) (“A litigant may bring his own claims to federal court without
counsel, but not the claims of others.”).
Here, the plaintiffs request that the Court appoint class counsel
under Federal Rule of Civil Procedure 23(g). Rule 23(g) is only implicated
when a class is first certified under Rule 23(a)(4). See, e.g., Sheinberg v.
Sorensen, 606 F.3d 130, 132 (3d Cir. 2010). The Court will not certify a
class where pro se litigants serve as class representatives. See Fymbo, 213
F.3d at 1321. Thus, because it will not certify a class action in this case,
the Court will not appoint class counsel under Rule 23(g). Accordingly, the
plaintiffs’ motion for class certification will be denied.
The plaintiffs’ motion for preliminary injunction and plaintiff
Howard’s motion for a temporary restraining order are based on this case
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proceeding as a class action. In these applications, the plaintiffs request
that the Court prevent their transfer from WCI to another institution, so
that they may remain as class representatives. Because the Court will not
certify a class action in this case, the plaintiffs’ motions for injunctive relief
will be denied.
Review of Complaint
Given that the Court has denied the plaintiffs’ motion for class
certification, it is not clear how the plaintiffs want proceed. In the event
that the plaintiffs wish to proceed on their amended complaint claims, the
Court will review those claims here.
The plaintiffs have paid the full $400 filing fee. Regardless of the
plaintiffs’ fee status, 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.
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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, a 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 plaintiffs to plead specific facts and their 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 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
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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
plaintiffs’ pro se allegations, “however inartfully pleaded,” a liberal
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construction.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The amended complaint includes allegations as to each individual
plaintiff.

Plaintiff Howard alleges that he suffers from a chronic back

injury and he seeks to proceed on an Eighth Amendment deliberate
indifference to a serious medical need claim related to treatment for his
injury. His complaint allegations take place in early 2011 and implicate
defendants Grieser and Schrubbe. Plaintiff Howard also alleges that he
suffers from an adjustment disorder for which he has consistently been
provided medication since 2004. He alleges that defendants Kamphuis and
Schrubbe repeatedly discriminated against him when he was denied
requests for a firm mattress, a light-duty restriction, feed-cell restrictions,
and walking shoes.
Plaintiff Weso alleges that his treatment for a gall stone was
delayed, in violation of the Eighth Amendment. However, this appears to
be the same claim he raised in Weso v. Huelsman, Case No. 08-cv-762-CNC
(E.D. Wis.), which was dismissed with prejudice on August 25, 2009.
Plaintiff Yeoman alleges that he suffers from digestive maladies and
that defendants Tabb, Sumnicht, DeYoung, Waltz, Schrubbe, and Manlove
persisted for three years (2011-2014) in an effective course of treatment
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related to his irritable bowel syndrome.
Plaintiff Duke alleges that defendants Rymarkiewicz, Winters, and
Swingen violated his Eighth Amendment right to be free from excessive
force on December 18, 2014.
Plaintiff Herrera alleges that defendants Manlove and Schrubbe
were deliberately indifferent to his serious medical needs in July 2013,
when they failed to implement a surgeon’s order regarding physical
therapy related to knee surgery.
Plaintiff Bowens alleges that defendants Larson, Manlove, and
Schrubbe, were deliberately indifferent to his serious medical need in 2013
when they delayed his treatment for his Achilles tendon injury.
Plaintiff Darrell Otis alleges that defendants Schaefer, Waltz,
Ludvigson, Olson, DeYoung, Callister, Johnson, Uleski, and Larson were
deliberately indifferent to serious mental health needs related to negative
side effects from his medications. Plaintiff Darrell Otis also alleges that he
was discriminated against on the basis of his mental impairment when he
was given a conduct report, placed on TLU, and sentenced to segregation
as a result of behavior caused by his medication, and when he was unable
to eat, sleep, and think clearly as a result of not receiving medication or
treatment.
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Plaintiff Calvin Otis, Jr., alleges that defendants Manlove and
Schrubbe were deliberately indifferent to his serious medical needs when
they failed to order the surgical treatment of his gynecomastia.
As stated above, it is unclear how the plaintiffs want to proceed at
this point. In the event that the plaintiffs want to proceed with a joint
complaint, they are advised that, under the controlling principle of Federal
Rule of Civil Procedure 18(a), “[u]nrelated claims against different
defendants belong in different suits.” 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, under Federal Rule of Civil Procedure 20, joinder of
multiple plaintiffs in one action is proper only if, “they assert any right to
relief 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 plaintiffs will
arise in the action.” Fed. R. Civ. P. 20(a)(1). Likewise, multiple defendants
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may be joined in one action 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.” Fed. R. Civ. P. 20(a)(2).
The current amended complaint violates Rules 18 and 20, and the
plaintiffs may not proceed jointly on all of these claims.

Therefore, the

Court will strike the amended complaint.
If one or more of the plaintiffs wish to proceed jointly in this case,
and if joinder is proper, there are at least two reasons a prisoner may wish
to avoid group litigation.

First, group litigation is challenging, and

potentially costly, in that each plaintiff must sign each filing before
submitting it the Court for filing.

Filings not signed by each pro se

plaintiff may not be accepted by the Court.

Logistically, this is

challenging, especially when the prisoners are confined at different
institutions.
Second, a prisoner litigating on his own behalf takes the risk that
“one or more of his claims may be deemed sanctionable under Fed. R. Civ.
P. 11.”

Boriboune v. Berge, 391 F.3d 852, 854-55 (7th Cir. 2004).

A

prisoner litigating jointly assumes those risks for all of the claims in the
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group complaint, whether or not they concern him personally.

For

example, as stated above, plaintiff Weso may not bring his claim because
the same claim was previously dismissed with prejudice.
The plaintiffs should keep these issues in mind in deciding whether
they want to file an amended complaint, and if so, whether they want to
file a joint amended complaint.

If the plaintiffs decide to file a joint

amended complaint, the Court will screen it under 28 U.S.C. § 1915A, and
only properly joined claims may proceed. Any unrelated claim not pursued
in this case may be brought in a separate action.
Alternatively, one plaintiff may file an amended complaint in this
case, and the remaining plaintiffs may request voluntary dismissal from
this action. The dismissed plaintiffs are then free to file new complaints
raising their own claims.

Of course, any new complaint must be

accompanied by a filing fee, or a motion for leave to proceed without
prepayment of the filing fee.
The plaintiffs are 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
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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
advanced in his amended complaint, the plaintiff(s) must identify the
individual defendants and specify the manner in which their actions, or
failure to take action, violated his (or their) constitutional rights.
A pro se form complaint/guide is included along with this order. The
plaintiff(s) must use this form complaint if filing an amended complaint.
The amended complaint, if any, must be filed by December 18,
2015.

The Court may dismiss this case for failure to prosecute if an

amended complaint is not received by December 18, 2015.
Motion to Withdraw Refusal to Consent
Plaintiff Weso has filed a motion to withdraw his refusal to consent
to proceed before a United States Magistrate Judge form (ECF No. 17).
Upon due consideration, the Court will grant this motion. The Court will
file plaintiff Weso’s consent to United States Magistrate Judge jurisdiction
form, which he filed along with his motion (ECF No. 17-1).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiffs’ motion for class certification
(ECF No. 3) is DENIED.
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IT IS FURTHER ORDERED that the plaintiffs’ motion for
appointment of counsel (ECF No. 3) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs’ motion for
preliminary injunction (ECF No. 5) is DENIED.
IT IS FURTHER ORDERED that plaintiff Weso’s motion to
withdraw refusal to consent (ECF No. 17) is GRANTED.

The Clerk’s

Office shall file plaintiff Weso’s Consent to Proceed Before a U.S.
Magistrate Judge form (ECF No. 17-1).
IT IS FURTHER ORDERED that plaintiff Howard’s motion for
temporary restraining order (ECF No. 24) is DENIED.
IT IS FURTHER ORDERED that the amended complaint (ECF
No. 25) is STRICKEN.
IT IS FURTHER ORDERED that the plaintiff(s) may file a
amended complaint on or before December 18, 2015, which contains only
related claims in accordance with this Order.

Any amended complaint

must be filed using the enclosed form complaint.
IT IS FURTHER ORDERED that the Clerk’s Office mail each
plaintiff a pro se prisoner complaint form and guide.
IT IS FURTHER ORDERED that failure to file an amended
complaint by December 18, 2015, may result in dismissal of this action
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for failure to prosecute.
Dated at Milwaukee, Wisconsin, this 18th day of November, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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