Brown v. Does

Filing 8

ORDER signed by Judge Pamela Pepper on 5/30/2016 GRANTING 2 Plaintiff's motion for leave to proceed in forma pauperis; DENYING 6 Plaintiff's motion to appoint counsel; SCREENING 1 Plaintiff's complaint, and DIRECTING plaintiff to file an amended complaint by July 1, 2016. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 16-cv-241-pp

JOHN AND JANE DOES, sued as
“CO John Does and CO Jane Does,”
Milwaukee County Sheriff’s Dept.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL (DKT. NO. 6), SCREENING PLAINTIFF’S
COMPLAINT (DKT. NO. 1), AND DIRECTING PLAINTIFF TO FILE AN
AMENDED COMPLAINT BY July 1, 2016
______________________________________________________________________________
The pro se plaintiff, Ennis Lee Brown, is a Wisconsin state prisoner. He
filed a complaint alleging that the defendants, John Doe and Jane Doe officers
employed at the Milwaukee County Sheriff’s Department, violated his
constitutional rights. In this order, the court grants the plaintiff’s motion to
proceed in forma pauperis, screens the plaintiff’s complaint, and directs the
plaintiff to file an amended complaint curing the deficiencies in the original
complaint if he wants to proceed.
I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this case because the plaintiff

was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows
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a court to give an incarcerated plaintiff the ability to proceed with his lawsuit
without pre-paying the civil case-filing fee, as long as he meets certain
conditions. One of those conditions is a requirement that the plaintiff pay an
initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial
partial filing fee, the court may allow the plaintiff to pay the balance of the
$350.00 filing fee over time through deductions from his prisoner account. Id.
On March 2, 2016, the court issued an order requiring the plaintiff to
pay an initial partial filing fee of $12.24. Dkt. No. 5. The plaintiff paid the fee of
$12.25 on March 15, 2016. Accordingly, the court will grant the plaintiff’s
motion for leave to proceed without pre-paying the filing fee and allow the
plaintiff to pay the balance of the $350.00 filing fee over time from his prisoner
account, as described at the end of this order.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
The law allows a court 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,
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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, 110910 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff shall provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The plaintiff need not 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).
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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. Cnty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond
du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S.
635, 640 (1980). The court must 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)).
A.

Allegations in the Complaint

Although currently incarcerated at the Waupun Correctional Institution,
the plaintiff’s allegations mostly involve his detention at the Milwaukee County
Criminal Justice Facility (MCCJF). The two exceptions to this are his first
claim, part of which appears to have taken place in or near a courtroom, and
his last claim, part of which took place at Dodge Correctional Institution. The
court has grouped the plaintiff’s allegations into the following six claims.
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1.

March 29, 2013: Excessive Force and Failure to Provide
Medical Attention

The plaintiff alleges that on March 29, 2013, Deputy Schroeder of the
Milwaukee County Sheriff’s Office used excessive force, by continually stunning
him with a stun belt which burned two circles in his left arm, as he was
chained in a wheelchair and unable to breathe through the bag over his head.
Dkt. No. 1 at 2. He alleges that Sergeant Sawczuk of the Milwaukee County
Sheriff’s Department was in court and supervising Deputy Schroeder. Sawczuk
failed to stop Schroeder and get the plaintiff medical attention, both at the time
of the incident and after the plaintiff returned to MCCJF. Id. Sergeant Sawczuk
also prevented MCCJF staff and nurses from helping the plaintiff when he was
bound in the wheelchair and being stunned in the Jail. Id.at 3.  
2.

March 29, 2013 – October 28, 2013: MCCJF Conditions

The plaintiff alleges that during the time he was in MCCJF, he was
punished on “numerous occasions,” placed in segregation by John and Jane
Does, and fed NutraLoaf. Id. at 3.
On March 29, 2013, Lieutenant Finkley, under the orders of his
supervisor, placed the plaintiff in segregation and on suicide watch. Id. The
plaintiff was on suicide watch from March 29, 2013, through April 15, 2013,
and held in segregation, during which time he indicates that he was being
punished. Id. CO Jane Does and John Does “attempted to force me to eat
Nutra-loaf and would not feed me or get me medical help!” Id. at 3, ¶ 5.
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From March 29, 2013, through April 20, 2013, the plaintiff was not
allowed out of his cell to shower or use the phone. Id. at 4. From March 29,
2013 through October 28, 2013, Lieutenant Finkley, Lieutenant Briggs,
Lieutenant Anderkoski, Lieutenant Reeves and Lieutenant Taylor, “under the
orders of their supervisors (Jane & John Does),” repeatedly refused to allow the
plaintiff to shower for fifteen to twenty-seven days at a time, or to leave his
small jail cell. Id. at 4, ¶ 7.
3.

July 30, 2013: Suicide Attempt

On July 30, 2013, while being held in segregation and on suicide watch,
the plaintiff asked CO Scherrer to call a mental health social worker. Id. at 4, ¶
8. One hour later, Jane Doe came to the cell and as the plaintiff began to tell
her his issue, Jane Doe started to yell and curse at him stating, “I don’t have
time for this shit,” and began to walk away. Id.
The plaintiff removed his t-shirt, ripped it, and tied it around his neck.
Id. The Jane Doe social worker, Lieutenant Reeves, CO Scherrer, Captain
Garth-Dixon, and Jane and John Does all watched as the plaintiff began to
pass out, but they did not enter his cell. Nurse Vicki then forced them to enter
and remove the t-shirt, but she was not allowed to check the plaintiff out to
make sure he was okay. Id. at ¶ 9. 
CO Scherrer then “wrote [the plaintiff] up for attempting suicide.” Id.
Lieutenant Reeves ordered CO Scherrer to punish the plaintiff and not feed him
his regular food while he was on suicide watch. Id. at ¶ 10. By order of the Jail
supervisors (Jane Doe and John Doe), the plaintiff was not given medical or
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mental health after the suicide attempt suicide. He was kept in the disciplinary
section of the Jail where he could not be monitored. Id. at ¶ 12.
4.

February 6, 2013: Excessive Force

On February 6, 2013, the plaintiff was on suicide watch in the
disciplinary part of the Jail when the “Tactical Team attempted to pull me
through the food trap as CO Hannah was removing the rib belt and hand
cuffs.” Id. at 4 ¶ 13. This caused the handcuffs to cut into his wrists and
forearms; he alleged that he could not put much weight on his wrists and
forearms or use them. Id. The plaintiff alleges that on the same date,
Lieutenant Anderkowski, Lieutenant Briggs, Lieutenant Montoya, Lieutenant
Reeves, and CO John Does & Jane Does assaulted him, but that he was denied
medical attention right after the assault. Id. at 5, ¶ 14.
About a week after the assault, the plaintiff saw Nurse Practitioner Josie.
He received naproxen and an xray, but he did not receive any follow-up medical
care. Id.
5.

Medical Care Issue

On October 18, 2013, the plaintiff asked to see the doctor, because the
left side of his face had swollen up and he could not see out of his left eye. Id.
at 5, ¶15. He asked Lieutenant Reeves, Lieutenant Montoya, Lieutenant
Finkley, Lieutenant Briggs, Lieutenant Anderkowski, Lieutenant John Doe “as
well as Nurses Jane Does and COs working on the disciplinary unit.” Id. The

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plaintiff did not see a doctor until October 25, 2013. The doctor said the
plaintiff may have “Mersa”1 and gave him one dose of antibiotics. Id.
On October 28, 2013, the plaintiff transferred from MCCJF to the Dodge
Correctional Institution (DCI). Id. At DCI, he was diagnosed with “Mersa.” Id.
Treatment of the infection left a very dark area on the left side of his face and a
scar. After the treatment, the “Mersa” came back a second time. Id. at ¶ 17.
The Jane Doe and John Doe medical staff at DCI had a surgeon come in and
cut out the “Mersa” under the plaintiff’s left arm. Dr. Seabul and DCI staff
would not inform the plaintiff of the process. The plaintiff was told that his arm
was cut “to cut the fluids drain by simply cutting the skin. Yet Dr. Seabul went
deep and cut out more than my skin.” Id.
6.

Mental Health Care Issue

The plaintiff alleges that while at MCCJF, “Mental Health Staff” gave him
anti-depressants that had dangerous side effects including loss of sleep, loss of
appetite, and suicide. Id. at 5 ¶ 16. He told Dr. Jane Doe and Nurse
Practitioner Jane Doe, as well as the social workers, about the side effects. But
he was still given the medication even after he had attempted suicide more
than once. Id. 

 The plaintiff likely refers to “MRSA”—methicillin-resistant staphylococcus
aureus, a form of antibiotic-resistant staph infection. See
www.mayclinic.org/diseases-conditions/mrsa/basics.
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7.

Request for Relief

For relief, the plaintiff seeks $50,000 for each claim, as well as $5.5
million in punitive damages. Id. at 6.
B.

Discussion

It appears that the plaintiff is improperly attempting to bring unrelated
claims in a single case. The claims that arose at the MCCJF or are related to
the MCCJF (paragraphs 1-4, part of paragraph 5, and paragraph 6) appear to
be properly joined. They involve the conditions at the MCCJF and/or the
treatment the plaintiff received there, and they overlap as to time and parties
involved. The plaintiff’s allegations related to his treatment for MRSA at DCI,
however, does not belong in this case.
The Seventh Circuit Court of Appeals has held, under the controlling
principle of Rule 18(a), Federal Rules of Civil Procedure, that “[u]nrelated
claims against different defendants belong in different suits,” 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.
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The court in George also reminded district courts that Fed. R. Civ. P. 20
applies as much to prisoner cases as it does to any other case. 507 F.3d at
607. Under Rule 20, multiple defendants may be joined into one case 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 plaintiff’s complaint violates Rules 18 and 20, to the extent that it
advances unrelated claims against multiple defendants at two separate
prisons. The George court instructed that such “buckshot complaints” should
be “rejected.” Id. The court will allow the plaintiff to file an amended complaint
in this case incorporating only properly related claims. The plaintiff must
pursue any unrelated claims in a separate lawsuit.
In addition, the complaint caption names only John and Jane Doe
defendants. The plaintiff is free to refer to parties as John and Jane Does if he
truly does not know their names; in such a circumstance, he can use to
discovery to learn their names later. But it is clear from the body of the
complaint that the plaintiff knows the names of many of the individuals he
wishes to sue. For example, in paragraph 1, the plaintiff alleges that Deputy
Schroeder stunned him and that Sergeant Sawczuk failed to treat him. In
paragraph 4, the plaintiff alleges that Anderkowski, Briggs, Montoya, Reeves,
and CO John & Jane Does assaulted him. Almost all of the other paragraphs in
the complaint name individual defendants. Yet the plaintiff has not included
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any named individuals as defendants in the caption of his complaint—which
means that he is not suing them. If the plaintiff wants to sue any of these
individuals in this lawsuit, he must include their names in the caption of the
complaint—in other words, on the first page, where the form asks for the
names of the defendants.
Because an amended complaint supersedes a prior complaint, anything
the plaintiff does not put into in the amended complaint (including claims,
facts, or the names of defendants) 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, that amended complaint will
become the operative complaint in this case, and the court will screen it in
accordance with 28 U.S.C. § 1915A. Under those circumstances, the complaint
the plaintiff filed on February 29, 2016 will no longer be in effect.
The court also advises plaintiff 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).
The doctrine of respondeat superior (supervisory liability) does not apply to
cases 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 that the plaintiff may bring in his
complaint, he must identify the individual defendants and explain how each
individuals actions (or failure to take action) violated his constitutional rights.
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III. MOTION TO APPOINT COUNSEL
The plaintiff has filed a motion to appoint counsel. He explains that his
imprisonment will limit his ability to litigate this case, and that this case
involves numerous complex issues. The plaintiff also states that he has limited
access to the library and limited knowledge of the law.
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 – 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.
The plaintiff has satisfied the initial requirement of trying to find an
attorney on his own. The court finds, however, that at this point, all that is
necessary is that the plaintiff file an amended complaint. The court knows that
the plaintiff is capable of filing a complaint, and it has told him what he needs
to do in the amended complaint. The plaintiff’s filings reveal that he has a good
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grasp of the allegations of his claims as well as an ability to present them to the
court.
Almost every inmate who files a lawsuit asks the court to appoint a
lawyer. Most of them have no money, have no legal training, and have only
limited access to the law library. The court does not have the resources to pay
lawyers to represent everyone who asks, and there are not enough volunteer
lawyers to provide counsel for everyone who asks. This means that the court is
able to appoint counsel only in those cases where the issues are so complicated
that the plaintiff cannot explain them himself. At this point, the plaintiff
appears quite able to explain his issue himself. The court will deny his motion
without prejudice; if the issues become more complicated at a later date, the
plaintiff may renew his request.
IV.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed in forma

pauperis. Dkt. No. 2.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 6.
The court ORDERS that on or before July 1, 2016, the plaintiff shall file
an amended pleading curing the defects in the original complaint that the court
describes above. If the plaintiff fails to file an amended complaint by
July 1, 2016, the court may dismiss this case without further notice or
hearing on the next business day.
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The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $337.75 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 Secretary
or his designee shall clearly identify the payments by the case name and
number assigned to this action.
The court ORDERS 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. Because the clerk
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electronically scans and enters onto the docket each filing the clerk receives,
the plaintiff need not mail copies to the defendants. All defendants will be
served electronically through the court’s electronic case filing system. The
plaintiff should retain a personal copy of each document filed with the court.
The court further advises the plaintiff 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.
The court will send a copy of this order to the Warden of Waupun
Correctional Institution.
Dated at Milwaukee, Wisconsin this 30th day of May, 2016.

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