McKinley Bey v. Pollard et al

Filing 18

ORDER signed by Judge Rudolph T. Randa on 6/30/2016. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 7 Plaintiff's MOTION for Preliminary Injunction DENIED. 11 Plaintiff's MOTION to Certify Class DENIED. 13 Plaintiff's MOTION to Appoint Counsel DENIED without prejudice. By 6/29/2016 plaintiff may file amended complaint on enclosed form. Wis. Dept. of Corrections to collect $343.81 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to LaRon McKinley Bey (with copy of EDWI complaint form) and Warden at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LA RON MCKINLEY BEY,
also known as, Laron McKinley,
and all similarly situated WCI prisoners
in isolated Administrative Confinement,
Plaintiff,
-vs-

Case No. 16-CV-521

WILLIAM POLLARD, BRIAN FOSTER,
TONY MELI, JON E. LITSCHER,
CATHY JESS, DR. SCHMIDT,
BRIAN GREFF, PAUL LUDVIGSON,
CAPTAIN JOHN O’DONOVAN, CAPTAIN WESTRA,
CO CUNDY, JESSIE J. SCHNEIDER,
SHANE M. WALLER, JEREMY L. STANIEC,
JOSEPH BEAHM, JOHN DOES 1-10,
MS. BONIS, and JANE AND JOHN DOES,
sued as “ACRC Jane and John Does 1-10,”
Defendants.

SCREENING ORDER
The pro se plaintiff is incarcerated at Waupun Correctional
Institution (WCI). He filed an amended complaint on behalf of all similarly
situated prisoners in isolated Administrative Confinement at WCI, alleging
that prolonged placement there violates inmates’ rights under the United
States Constitution. This matter comes before the court on the plaintiff’s
petition to proceed without prepayment of the filing fee (in forma
pauperis), motion for preliminary injunction, motion to certify class, and

motion to appoint counsel. The plaintiff has been assessed and paid an
initial partial filing fee of $6.19. See 28 U.S.C. § 1915(b)(1).
The Court shall 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
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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)).
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
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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
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)).
Amended Complaint Allegations
The plaintiff filed an amended complaint on May 2, 2016. (ECF No.
5.) He seeks to bring this class action on behalf of “present and future
prisoners held by the defendants in supermax, long-term isolative
Administrative Confinement (“AC”) in the WCI Restrictive Housing Unit
(“Seg Unit”)[.]” (ECF No. 5 at 3 ¶ 2.) The plaintiff is suing: former WCI
Warden William Pollard; WCI Warden Brian Foster; Security Director
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Tony Meli; Wisconsin Department of Corrections (“DOC”) Secretary Jon E.
Litscher;

DOC

Director

of

Adult

Institutions

Cathy

Jess;

WCI

Psychological Services Unit Supervisor Dr. Schmidt; former Program
Corrections

Supervisor

Brian

Greff;

current

Program

Corrections

Supervisor Paul Ludvigson; former Captain John O’Donovan; Captain
Westra; Officer Cundy; Segregation Lieutenant Jessie J. Schneider;
Segregation Lieutenant Shane M. Waller; Segregation Officer Jeremy L.
Staniec; Segregation Officer Joseph Beahm; Segregation Officers John
Does 1-10; Ms. Bonis; and ACRC Jane and John Does 1-10.
The amended complaint contains allegations on behalf of the
plaintiff and also on behalf of several “putative class members.” Those
individuals are: Daniel McBride; Terrance Prude; Rayshun Woods; Luis
Nieves; Shirell Watkins; and Lamar Larry. The plaintiff alleges that the
defendants have held him and the other named class members in
prolonged, supermax isolated administrative confinement at WCI for more
than eight months each.
The plaintiff alleges that the defendants regularly expose them to an
insidious classical conditioning procedure without their consent.

The

procedure relates to the manner in which meal trays are delivered to the
plaintiffs in their cells. The procedure is dangerous because the prisoners
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are vulnerable, and it toys with their personalities and emotions which can
result in symptoms and illness associated with mental illness.
In addition, the plaintiff alleges that the long-term, supermax,
isolated administrative conditions deprive them of basic human needs and
put them at a substantial risk of serious mental injury, exacerbation of
preexisting mental illnesses, medical problems, psychosocial impairments,
and other disabilities.
The plaintiff alleges that he has been in administrative confinement
for over twenty-five years and he has or is now experiencing the following
“SHU Syndrome” symptoms:
Persistent stress; irritability; occasional panic attacks;
occasional depression; occasional emotional flatness – loss of
ability to have feelings; mood swings; hopelessness; hostility;
anger; outbursts of physical and verbal violence; poor
concentration; impaired memory and verbal recall; occasional
disorientation; hypersensitivity to noises; hyper-reactivity and
hyper-susceptibility
to
stimuli;
hyper-reactivity
to
stimuli/easily startled, etc.; occasional disorientation in time
and space; recurrent and persistent ruminations of a vengeful
character; suicide ideations; sleep problems; and mental and
emotional anguishment.
(ECF No. 5 at 17 ¶ 24.) The plaintiff also alleges that as a direct result of
his long-term isolative confinement, he was diagnosed with antisocial
personality disorder and delusional disorder – persecutory type in July
2012.

According to the plaintiff, his prolonged isolative confinement
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deprives him of the capacity to function normally.
The plaintiff also alleges that the conditions in administrative
confinement have had significant adverse effects on the other named class
members. (ECF No. 5 at 18-22 ¶¶ 27-37.) Each defendant allegedly knew
that:
prolonged isolation and lack of meaningful social,
environmental, and occupational stimulation is toxic to the
health of prisoners with serious mental illness as McKinley
Bey, McBride, and Nieves, inter alia, and can cause mental
illness and psychosomatic and psychosocial harm and
impairment to others such as Prude, Woods, Watkins, and
Larry[.]
(ECF No. 5 at 22 ¶ 39.) In addition, he alleges that the defendants have:
a long-standing practice of indefinite isolative administrative
confinement of the seriously mentally ill through the device of
mere perfunctory and sham 6 month reviews with a lack of a
substantive and realistic brightline criterion for McKinley
Bey, McBride, Nieves, inter alia, to meet for release with
regard to their mental state and ability to conform.
(ECF No. 5 at 22 ¶ 40.)
For about four weeks in November 2015, following use of the
conditioning feed procedure, defendant Beahm and John Does 1-10
subjected the plaintiff and others to a regime of aversive condition in the
form of freezing showers. Beahm also subjected the plaintiff to regular
implied death threats during this time.

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After the plaintiff was diagnosed with a mental illness in July 2012,
he was transferred from the Wisconsin Secure Program Facility to the WCI
supermax segregation unit where defendant Waller immediately placed
him in a sensory deprivation cell in an environment worse than Wisconsin
Secure Program Facility, which exacerbated his illness.

The plaintiff

remained in mental anguish for 64 days, despite his complaints and
requests to be moved.
The plaintiff alleges that his delusional disorder symptoms were
purposely induced initially by action of the Wisconsin Secure Program
Facility security officials, and followed up by the WCI security officials,
using the conditioning procedure referenced above.
In a continuing course of wrongful conduct via use of cc and
other procedure upon McKinley Bey in the Seg and HSU units
to subject him to aversive conditioning through various
noxious and coercive tactics, primarily defendants Staniec,
from about 7/5/12 to 3/8/13 and 6/20/13 to 12/10/13, and
Waller, from about 7/11/12 to May 2013, and Schneider and
Greff, from about 7/11/12 to April 2015, and incorporating
every defendant and allegation set out at 5, above, from about
7/11/12 to the present, have each eiter participated in, caused,
condoned, or turned a blind eye to, a regime of retaliation and
abuse to cause the plaintiff mental and emotional harm. The
various noxious and coercive tactics used are outlined in Ex.
1001.
(ECF No. 5 at 26-27 ¶ 47.)
The plaintiff claims that the defendants violated his, and class
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members’, rights under First, Eighth Amendment, and Fourteenth
Amendments to the United States Consitution. He also references two
criminal statute violations (18 U.S.C. §§ 241, 242) and unspecified
provisions of Title 45 of the Code of Federal Regulations.
For relief, the plaintiff seeks a preliminary injunction, declaratory
relief, and monetary damages.
Discussion
The plaintiff’s allegations implicate his constitutional rights.
Specifically, he alleges violations of his rights under the First, Eighth, and
Fourteenth Amendments. However, as explained below, the plaintiff may
not proceed on a class action. Therefore, the Court will require him to file
an amended complaint limited to his own allegations if he wants to
proceed.

The Court will address the requirements of an amended

complaint at the end of this Screening Order.
Motion for Class Certification
The plaintiff has filed a motion for class certification. (ECF No. 11.)
He contends that he has satisfied the requirements of Federal of Civil
Procedure 23(a) and 23(b) such that the Court may grant his motion.
However, under Rule 23(a)(4) of the Federal Rules of Civil Procedure, the
class must be provided adequate representation. Because of this
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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 the plaintiff
is proceeding pro se, the Court will not certify a class action in this case.
Motion for Preliminary Injunction
The plaintiff has filed a motion for preliminary injunction. (ECF No.
7.)

He contends that the plaintiffs will suffer irreparable harm if the

injunction is not granted. The motion and supporting brief do not request
any specific relief.

Presumably, the plaintiff seeks the preliminary

injunctive relief requested in the amended complaint.

He seeks the

following relief in the amended complaint:
1.

A preliminary order prohibiting the defendants from
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confining any plaintiff with a serious mental illness: MH2a,
MH2b, etc., in supermax isolative AC or any prolonged
nonpunitive or punitive condition of isolation compatible with
solitary confinement. Prolonged is more than 30 days.
2.
A preliminary order mandating the immediate release to
a general-population setting all plaintiffs who have spent
more than 10 years in AC.
3.
A preliminary order prohibiting the defendants from
using classical conditioning or any other coercive procedures
upon the plaintiff as set out in this complaint.
4.
A preliminary order prohibiting the defendants from
housing the plaintiffs in the punitive AC conditions set out in
this complaint.
5.
A preliminary order mandating the defendants establish
a Brightline Rule Criterion for AC prisoners to follow for
projected release from AC.
6.
A preliminary order mandating that defendants obtain,
install, and maintain cameras throughout the Seg Unit that
surveil and record in real time all areas used by staff and
prisoners, except nonobservation cells, shower cubicles, strip
search cages, the HSU room, and visitor booths.
7.
A preliminary order mandating that all persons entering
or exiting the RHU/Seg Unit be required to log-in/log-out:
name, time, and date.
8.
A preliminary order mandating the defendants establish
a bona fide AC Program such as the Common Grounds
Program (Ex. 1005) with a dignified path to release.
9.
An order mandating that defendants establish a new
Restricted Housing General Population (RHGP) to house AC
prisoner in GP conditions where very prolonged AC will be
severely limited and those so confined provided significantly
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more time out-of-cell and to congregate.
(ECF No. 5 at 30-32 ¶¶ 1-9.)
To obtain preliminary injunctive relief, the plaintiff must show that
(1) his underlying case has some likelihood of success on the merits, (2) no
adequate remedy at law exists, and (3) he will suffer irreparable harm
without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007).
If those three factors are shown, the Court must then balance the harm to
each party and to the public interest from granting or denying the
injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper
v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
The plaintiff has not satisfied the first prong because his complaint
focuses on a class action and he cannot proceed on a class action. The
Court cannot evaluate the plaintiff’s claims until he files an amended
complaint limited to his own allegations and claims. The plaintiff has not
demonstrated a likelihood of success on the merits. Therefore, the Court
will deny his motion.
Motion to Appoint Counsel
The plaintiff has filed a motion to appoint counsel. He states that he
needs an attorney because he suffers from a mental illness.
In a civil case, the Court has discretion to decide whether to recruit
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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 states that he has attempted to find an attorney on his
own. However, he is capable of proceeding without an attorney because all
he has to do right now is file an amended complaint. The plaintiff’s filings
demonstrate that he is capable of filing an amended complaint. Therefore,
the Court will deny the plaintiff’s motion to appoint counsel.
Conclusion
If the plaintiff wants to proceed, he must file an amended complaint
curing the deficiencies in the original complaint as described herein. Such
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amended complaint must be filed on or before July 29, 2016. Failure to
file an amended complaint within this time period may result in dismissal
of this action.
The amended complaint must bear the docket number assigned to
this case and must be labeled “Amended Complaint.”

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 appellate court 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).

If an amended

complaint is received, the Court will screen it pursuant to 28 U.S.C.
§ 1915A. The plaintiff should use the enclosed form complaint to file an
amended complaint.
ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion for
leave to proceed without prepayment of the filing fee (in forma pauperis)
(ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for
preliminary injunction (ECF No. 7) is DENIED.
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IT IS FURTHER ORDERED that the plaintiff’s motion to certify
class (ECF No. 11) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (ECF No. 13) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that on or before July 29, 2016, the
plaintiff may file an amended pleading curing the defects in the original
complaint as described herein.
IT IS FURTHER ORDERED that the Clerk’s Office mail the
plaintiff a prisoner complaint form.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prisoner trust account the $343.81 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 copies of this order be sent to the
Warden of Waupun Correctional Institution.
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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
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. As each
filing will be electronically scanned and entered on the docket upon receipt
by the clerk, 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 also retain a personal copy of each

document filed with the court.
The plaintiff is further advised that failure to make a timely

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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.
Dated at Milwaukee, Wisconsin, this 30th day of June, 2016.
BY THE COURT:

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

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