Tatum v. Wall et al

Filing 14

ORDER signed by Judge Rudolph T. Randa on 5/5/2016. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. 12 Plaintiff's MOTION for Order directing WSPF to pay initial fee/waive fee DENIED as moot. Plaintiff to file amend ed complaint by 5/26/2016; failure to file may result in dismissal for failure to prosecute. Wisconsin DOC to collect $349.88 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Robert Tatum and Warden at Waupun Correctional Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT L. TATUM,
on behalf of all similarly situated Wisconsin Department
of Corrections inmates,
Plaintiffs,
-vs-

Case No. 15-CV-1435

EDWARD WALL, GARY BOUGHTON,
MARK KARTMAN, DAVID GARDNER,
DARYL FLANNERY, DANE ESSER,
LARRY PRIMMER, LEBBEUS BROWN,
JOHN SHARPE, JONI SHANNON-SHARPE,
DANIEL LEFFLER, CRAIG TOM,
JOSEPH DREZEN, JOSEPH CICHANOWICZ,
MATTHEW SCULLION, ROBERT BOOHER,
JENNIFER SICKINGER, MICHAEL SHERMAN
T. GOVIER, ANDREW JONES, PAUL KIRSTEN,
COLTON FIELDS, JOSHUA CAMPEAU,
CODY KEEHN, CO KOENIG, CO LARSEN,
CO OSTROVSKI, CO HEHNE, WILLIAM BROWN,
ELLEN RAY, DR. TRACY JOHNSON,
DR. TORRIA VAN BUREN, VICTORIA SEBRANIK
JIM SCHWOCHERT, KAREN GOURLIE,
WELCOME ROSE, CHARLES FACKTOR,
CINDY O’DONNELL, DIEDRE MORGAN,
UNKNOWN CO, and UNKNOWN DAI OFFICIAL,
Defendants.

SCREENING ORDER
The pro se plaintiff is a Wisconsin state prisoner. He filed this class
action lawsuit under 42 U.S.C. § 1983. This matter comes before the court
on Tatum’s petition to proceed in forma pauperis. He has been assessed

and paid an initial partial filing fee of $.12.
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
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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 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.
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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)).
Complaint Allegations
Tatum was incarcerated at the Wisconsin Secure Program Facility
at all times relevant. He brings this case as a class action on behalf of all
similarly situated Wisconsin Department of Corrections inmates against 41
defendants. Tatum alleges that policies and customs of a “Blue code of
Silence” have violated the plaintiffs’ rights under federal and state law.
(Dkt. No. 1 at 6.)
According to Tatum, individually and as a part of the policy of the
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Blue Code of Silence, he has been subjected to multiple violations of his
rights. The Blue Code of Silence allegedly uses various tactics to reinforce
its policies, such as ensuring that the Inmate Complaint Review System is
a sham, obstructing the plaintiffs’ access to attorneys and to the courts,
and lying in official reports. The perpetuation of the Blue Code of Silence
has allegedly resulted in constitutional violations, such as: denial of due
process; denial of access to the courts; excessive force, unnecessary strip
searches

and

sexual

assault;

retaliation;

unlawful

conditions

of

confinement in observation status; forced medical intervention and forcefeeding; unlawful in-cell cameras; assault/battery/distress;

unlawful

conditions of confinement related to unfair and unnecessary security
precautions; and denial of equal protection.
It appears that the plaintiff attempts to join all 41 defendants and
multiple claims together in one action under the Wisconsin Department of
Corrections’ Blue Code of Silence because all defendants allegedly acted
pursuant to that policy. Specifically, he alleges:
Def. Boughton operates WSPF under a custom or written
policy known as the “Blue Code” or “Code of Silence” (COS),
which is a prevalent and illegal system operating WI-DOC
wide under def. Wall wherein staff will and must cover-up and
lie for each other and against an inmate or inmates, or
otherwise act (harass or retaliate) against an inmate or
inmates to assist another staff members efforts against them,
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regardless of the illegality of those actions and esp. if the
“target” inmate or inmates file lawsuits, report staff
misconduct, or is personally disliked by 1 or more staff for any
reason. All ranks, up to Boughton at WSPF level and Wall
WI-DOC (Madison – Central Ofc)-side, are COS facilitators
and participants.
The primary goals of the COS “custom” is to cover-up
and prevent prosecution of staff misconduct and establish an
“us v. them” team mentality against inmates by “teaming-up”
v. plaintiff even pursuant to illegal conduct. These goals are
achieved by lying in official records and reports, intentionally
mishandling and refusing to process staff misconduct ICIs,
refusals to discipline even overt misconduct of staff reported,
and retaliating against and harassing plaintiffs who report or
file lawsuits.
The environment created by the COS “custom” in
allowing and covering up staff misconduct is a potential and
actual danger to plaintiffs’ health and safety (as even highly
illegal acts may be perpetrated w/o repercussions),
demoralizes Plaintiffs in having no recourse for inflicted
wrongs – detrimental to mental health and effective
rehabilitation, and puts plaintiffs at a high risk for self-harm.
The COS custom can be reasonably attributed to correlatingly
[sic] high suicide rates in WI-DOC, which is higher than the
national average among prisons.
(Dkt. No. 1 at 8 ¶¶ 17-19.)
Additionally, he alleges that “[s]tate courts, judges, and personnel in
WI, facilitate the COS custom overtly or implicitly by deliberate
indifference to, and failure to properly investigate, illegal acts Plaintiffs
report in John Doe actions and other court filings and hearings, reinforcing
the negative behaviors of COS participants and the damaging effects to
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plaintiffs.” (Dkt. No. 1 at 9 ¶ 22.)
For relief, Tatum seeks declaratory judgment, injunctive relief,
compensatory damages, and punitive damages.
Class Action
As indicated, it appears that Tatum seeks to bring a class action. To
the extent that he requests 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 have repeatedly
declined to allow pro se prisoners to represent a class in a class action. See
Howard v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015); see also, 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.”). Because Tatum is proceeding pro se, the Court will not certify a
class action in this case.
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Discussion
Under Federal Rule of Civil Procedure 8, a complaint must allege
facts that allow a court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A court must also be mindful, however, that it should not
allow defendants to be subjected to “paranoid pro se litigation ... alleging ...
a vast, encompassing conspiracy” unless plaintiff meets a “high standard of
plausibility.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009); see also
Walton v. Walker, 364 F.App’x. 256, 258 (7th Cir.2010) (unpublished). The
plaintiff’s complaint links all of his allegations against 41 defendants under
the umbrella of a Blue Code of Silence that includes not only all ranks of
the Wisconsin Department of Corrections, but also judges, courts, and
other Wisconsin state personnel.

Tatum links all of these claims by

alleging that the defendants’ actions were done in order to facilitate the
DOC’s Blue Code of Silence custom and/or the defendants acted pursuant
to the Blue Code of Silence custom. The Court rejects this conspiracy claim
as implausible.

See Walton v. Walker, 364 F. App’x 256, 258 (7th Cir.

2010). Tatum may not proceed on his claim that the DOC’s custom of a
Blue Code of Silence is the moving force behind his allegations.
That leaves the plaintiff’s multitude of claims against the 41
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defendants.

Based on these allegation, 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 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 “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 defendants will arise in the
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action.”
The Court finds that the complaint violates Rules 18 and 20 insofar
as it advances unrelated claims against multiple defendants. The George
court instructed that such “buckshot complaints” should be “rejected.” Id.
The plaintiff will be allowed to file an amended complaint in this case
incorporating only properly related claims.

Any unrelated claim not

pursued in this case must be brought in a separate action.
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.
Further, the 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.
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§ 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, plaintiff
must identify the individual defendants and specify the manner in which
their actions, or failure to take action, violated his constitutional rights.
ORDER
NOW, THEREFORE, IT IS ORDERED that the plaintiff’s motion
for leave to proceed in forma pauperis (Docket 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for order
directing WSPF to pay initial fee, or motion to waive fee (Docket 12) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff is directed to file an
amended complaint on or before May 26, 2016, 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 May 26, 2016, that complies with the requirements
of Rules 18 and 20, Federal Rules of Civil Procedure, this action may be
dismissed for failure to prosecute.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
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prisoner trust account the $349.88 balance of the filing fee by collecting
monthly payments from the 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 a copy of this order be sent to the
Warden of the institution where the inmate is confined.
IT IS FURTHER ORDERED that, pursuant to the Prisoner EFiling 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
517 E. Wisconsin Avenue, Room 362
Milwaukee, Wisconsin 53202
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Dated at Milwaukee, Wisconsin, this 5th day of May, 2016.

BY THE COURT:

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

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