Carthage v. Wisconsin Department of Corrections et al

Filing 28

ORDER signed by Judge J.P. Stadtmueller on 4/18/2017. 26 Plaintiff's Second Amended Complaint to be operative complaint. Defendants Radtke, Schwochert, Clements, Pollard, and John and Jane Doe DISMISSED from action. Defendants Malcomson, Steffen, Poteat, and Horst to file responsive pleading to Plaintiff's Second Amended Complaint. (cc: all counsel, via mail to Charles E. Carthage, Jr. and Warden at Dodge Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES E. CARTHAGE, JR.,
Plaintiff,
v.

Case No. 16-CV-326-JPS

CPT. LARRY MALCOMSON, LT.
PHIL STEFFEN, LT. DAVE
POTEAT, MIKE HORST, DYLAN
RADTKE, JIM SCHWOCHERT,
MARC CLEMENTS, WILLIAM
POLLARD, and JOHN and JANE
DOE,

ORDER

Defendants.

Plaintiff, who is incarcerated at Dodge Correctional Institution
(“Dodge”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). Plaintiff’s original complaint was
dismissed on screening, but based on the allegations in his amended
complaint, he was permitted to proceed on a claim of deliberate indifference
to his serious medical needs, in violation of the Eighth Amendment, against
certain defendants. (Docket #14). Plaintiff recently filed a second amended
complaint (Docket #26), and the Court must now screen that complaint. 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. Id. § 1915A(b). The same

standards that applied in the first screening order apply here as well. See
(Docket #9 at 1–3).
Plaintiff alleges that he was arrested and jailed at the Brown County
Jail in February 2013. (Docket #26 at 2). In or around March 2013, Defendants
Cpt. Malcomson (“Malcomson”), Lt. Phil Steffen (“Steffen”), Lt. Dave Poteat
(“Poteat”), and Mike Horst (“Horst”), provided inadequate treatment for his
medical needs, including complaining about the time and expense required
to transport Plaintiff to dialysis treatment and ultimately causing Plaintiff to
be taken off of a kidney transplant waiting list. Id. at 2–3. The Court gathers
that the officers’ complaints about caring for Plaintiff led to a petition to a
Brown County Circuit Court judge to move Plaintiff to a state prison, where
his care might be more easily provided. See id. There were also allegations
that Plaintiff represented an escape risk, making it difficult for Jail officials to
transport him to medical appointments. Id. The court petition was granted
and Plaintiff was transferred to Dodge. Id. at 3. Plaintiff believes that this was
unlawful because he was a pretrial detainee, not a convicted prisoner. Id. He
was held at Dodge until April 22, 2014. Id.
Plaintiff alleges that he received further mistreatment while housed at
Dodge. Id. For instance, he was wrongfully treated as a high security or
escape risk, which entailed Plaintiff being excessively shackled and restrained
with electrical shock monitors while being transported to medical
appointments. Id. at 3–5. He also claims that several guards, named here as
John and Jane Doe, harassed and ridiculed him, though for reasons he does
not explain. Id. Further, Plaintiff alleges that he was subjected to baseless
lockdowns and denied access to the law library. Id. As for Defendants Dylan

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Radtke (“Radtke”), Jim Schwochert (“Schwochert”), William Pollard
(“Pollard”), and Marc Clements (“Clements”), all identified as current or
former wardens or security directors at Dodge, Plaintiff does not allege that
any of them engaged in any specific conduct alleged in the second amended
complaint. See id. at 3. Instead, Plaintiff claims that each had personal
knowledge of Plaintiff’s mistreatment and, ostensibly, did not act to correct
it. See id.
The Court has already instructed Plaintiff that he may proceed on a
claim against Defendants Malcomson, Steffen, Poteat, and Horst for alleged
medical mistreatment while housed at the Brown County Jail. (Docket #14 at
2–3). That claim, which is restated in the second amended complaint, will
again be permitted to proceed.
However, the Court cannot permit Plaintiff to proceed on any of the
other claims he identifies against these defendants, nor on the litany of
allegations about the conditions of confinement at Dodge. First, as to his
claim that his transfer from Brown County Jail to Dodge Correctional
Institution was wrongful because he was a pretrial detainee, his detainee
status alone did not deprive prison officials of the ability to transfer him.
Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003) (holding that confining
civil detainees in a prison did not itself constitute punishment). Plaintiff does
not contend that he was subjected to anything other than the ordinary
conditions of confinement at Dodge (which include restrictions placed on
escape-risk detainees in appropriate circumstances), and so his constitutional
rights were not offended. Id.; Stevenson v. Carroll, 495 F.3d 62, 70 (3d Cir.
2007) (due-process rights implicated only when a detainee is transferred into

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more restrictive housing). Moreover, though Plaintiff challenges the reasons
for his transfer, which were to provide better medical care and control his
escape risk, the transfer petition was considered and granted by a Brown
County Circuit Court judge. Because the judge enjoys immunity from a claim
that he or she wrongfully granted the petition, Plaintiff cannot proceed on
this claim. Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011). Thus, the only
claim that can proceed against the Brown County Jail defendants is the claim
related to Plaintiff’s medical care.
Second, Plaintiff cannot proceed in this action against any official
working at Dodge. In its prior screening order, the Court warned Plaintiff
that the Dodge-related claims must be brought “in a separate legal action
against the individuals personally involved[.]” (Docket #14 at 3) (emphasis
added). This result is required by the joinder rules of the Federal Rules of
Civil Procedure. Rule 18 permits a plaintiff to bring in one lawsuit every claim
he has against a single defendant. Fed. R. Civ. P. 18(a). However, to join
multiple defendants in a single action, Rule 20 requires that the plaintiff assert
at least one claim against all of them “arising out of the same transaction,
occurrence, or series of transactions or occurrences” and that “any question
of law or fact common to all defendants will arise in the action.” Id. 20(a)(2).
Working together, these two rules mean that “[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). Consequently,
“multiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant

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2.” George, 507 F.3d at 607. Rule 20 applies as much to cases brought by
prisoners as it does to any other case. Id.
Allowing Plaintiff to join his claims against officials at Dodge to the
claims against Brown County Jail officers would violate Rules 18 and 20. The
claims against Dodge officials share no operative facts or legal standards with
the claims against the officers at Brown County Jail. Nor do they arise from
the same “transaction” or “occurrence” as contemplated by the Rules. There
must be some common thread tying all the asserted claims together, but here
it is obvious that Plaintiff’s alleged mistreatment at Brown County Jail was
perpetrated by different people, at different times, and in different ways from
whatever occurred later during his incarceration at Dodge. Thus, the Court
must dismiss the claims against Radtke, Schwochert, Clements, Pollard, and
John and Jane Doe.
For the reasons stated above, Plaintiff will be permitted to proceed
only on a claim of deliberate indifference to his serious medical needs, in
violation of the Fourteenth and Eighth Amendments, against Defendants
Malcomson, Steffen, Poteat, and Horst, arising from medical care provided
to him while incarcerated at the Brown County Jail.
Accordingly,
IT IS ORDERED that Plaintiff’s second amended complaint (Docket
#26) shall be the operative complaint in this case;
IT IS FURTHER ORDERED that Defendants Radtke, Schwochert,
Clements, Pollard, and John and Jane Doe be and the same are hereby
DISMISSED from this action;

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IT IS FURTHER ORDERED that the remaining Defendants,
Malcomson, Steffen, Poteat, and Horst, shall file a responsive pleading to the
second amended complaint; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 18th day of April, 2017.
BY THE COURT:

_________________________________
J.P. Stadtmueller
U.S. District Judge

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