Ali v. Eckstein et al

Filing 18

ORDER signed by Judge J.P. Stadtmueller on 2/23/2017 regarding 17 Plaintiff's Second Amended Complaint. Plaintiff's claim for violation of due process rights under the 14th Amendment in connection with the 1/13/2017 conduct report DISMISSED without prejudice. Defendants Patrick Brant, Brian Bauman, and Catherine Francios DISMISSED from action. (cc: all counsel, via mail to Ouati K. Ali and Warden at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
OUATI K. ALI,
Plaintiff,
v.

Case No. 16-CV-1518-JPS

MICHELLE HAESE,
SCOTT ECKSTEIN, and
MICHAEL DONOVAN,

ORDER
Defendants.

On December 19, 2016, the Court screened Plaintiff’s original
complaint. (Docket #8). The Court found that Plaintiff failed to state any
viable claims for relief but permitted him to amend his complaint. Id. at 6–7.
Plaintiff submitted an amended complaint on December 29, 2016. (Docket
#9). The Court screened the amended complaint, finding that Plaintiff could
proceed on a First Amendment claim against the prison chaplain, Michael
Donovan (“Donovan”), the social service program director, Michelle Haese
(“Haese”), and the warden, Scott Eckstein (“Eckstein”) for deprivation of the
right to free exercise of Plaintiff’s religion. (Docket #10). These Defendants
allegedly caused or participated in causing Plaintiff’s exclusion from
participation in the 2016 Ramadan fast. See id. at 5–8.
Despite being permitted to proceed, on February 21, 2017, Plaintiff
submitted yet another amended complaint. (Docket #17). As noted in the first
screening order, 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
“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). All of the standards cited in the first screening
order remain applicable here. (Docket #8 at 1–3).
Plaintiff’s allegations in the second amended complaint largely track
those made in the first amended complaint. Compare (Docket #9), with
(Docket #17). Because this is the Court’s third screening order in the short life
of this case thus far, it will for brevity’s sake assume familiarity with its prior
screening orders and discuss only Plaintiff’s new allegations. See (Docket #8
and #10).
First, with respect to his claim that Haese denied him the ability to
participate in the 2016 Ramadan fast, Plaintiff adds a few new factual details.
(Docket #17 ¶¶ 20–24). Likewise, Plaintiff has included more specific factual
allegations about his free exercise claim against Eckstein. Id. ¶ 25. The Court
has already permitted Plaintiff to proceed against these defendants on his
First Amendment free exercise claim, and the additional detail Plaintiff has
provided does not require the Court to revisit that decision. See (Docket #10
at 5–8).1

1

Plaintiff also included a few additional allegations about inmate complaint examiner
Alan DeGroot (“DeGroot”), who was named as a defendant in the original and first amended
complaints. See (Docket #17 ¶¶ 26–27). These allegations pertain to DeGroot’s response to
Plaintiff’s inmate grievance regarding his inability to sign up for the 2016 Ramadan fast. Id.
Plaintiff does not seek to name DeGroot as a defendant, however, and does not allege that any
of DeGroot’s conduct was wrongful.

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Plaintiff’s other new allegations are, however, problematic. He has
added several pages of new claims arising from alleged misconduct occurring
since December 31, 2016. See id. ¶¶ 28–36. Plaintiff states that he wrote to
Haese on that date with a complaint about rules in his new prison dorm,
which he believed interfered with his daily prayers as a practicing Muslim.
Id. ¶ 28. He claims he was transferred to this new dorm because Haese was
in charge of his old dorm, suggesting that the prison was trying to avoid any
possibility of the appearance of reprisal for the instant suit. See id. Next, on
January 6, 2017, Plaintiff was placed in segregation after he wrote a letter to
the “Muslim Volunteer” at the Green Bay Correctional Institution. Id. ¶
29. On January 9, 2017, Plaintiff received some of his property while in
segregation, but many of his legal papers were missing. Id. ¶ 30.
On January 13, 2017, Program Supervisor Catherine Francios
(“Francios”) issued Plaintiff a major conduct report for “soliciting an
employee,” in violation of Wisconsin Department of Corrections rules. Id. ¶
31. He concedes that “[t]he allegations were partially true,” but asserts that
“the merits could be contested by documents of authorization, evidence, and
witnesses for the Plaintiff, during the hearing.” Id. Plaintiff believes he was
denied that evidence however, since he next alleges that on January 23, 2017,
Security Supervisor Brian Bauman (“Bauman”) denied Plaintiff’s request for
a witness to appear at his hearing on the conduct report. Id. ¶ 32. That same
day, Plaintiff had sent Francios a request for documents and evidence
underlying the conduct report. Id. ¶ 33. She did not respond. Id.
On January 26, 2017, Plaintiff requested a postponement of the hearing
since he did not have the documents he requested from Francios. Id. ¶ 34. The

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hearing examiner for the conduct report hearing, Patrick Brant (“Brant”),
denied the request. Id. ¶ 35. Brant found the conduct report was valid, in
whole or in part (Plaintiff does not say), and imposed 30 days of “disciplinary
separation” as a sanction. Id.
Finally, on February 16, 2017, Plaintiff alleges that he met with
Lieutenant Faltyski, Program Review Committee Supervisor R. Mohnen, and
Haese. Id. ¶ 36. During the meeting, Haese told Plaintiff that his mediumcustody status was being revoked as a result of his receiving a major conduct
report. Id. Plaintiff claims Haese had a conflict of interest during this meeting,
presumably because she is a defendant in the instant suit. See id.
On these allegations, Plaintiff re-alleges his claim that he was denied
participation in the 2016 Ramadan fast in violation of his First Amendment
right to the free exercise of his religion. Id. ¶ 37. He also adds, based on the
new allegations arising since December 31, 2016, a claim for deprivation of
procedural due process, as guaranteed by the Fourteenth Amendment, in
connection with the disciplinary proceedings arising from the January 13,
2017 conduct report. Id.
Federal Rule of Civil Procedure 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

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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 2.” George, 507 F.3d at 607.
Applying the George rule to this case, the Court cannot allow any of
Plaintiff’s new allegations—those arising since December 31, 2016—to
proceed. First, although Haese is named as a defendant in this case already,
he cannot proceed against her on his vague allegations that she has retaliated
against him for either exercising his First Amendment rights or by filing this
lawsuit. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (identifying
elements of First Amendment retaliation claim). He has not even tried to
make such a claim, see (Docket #17 ¶ 37), and even if he did, the reprisal
allegations do not share any common question of law or fact with the existing
free exercise claim against Haese, Eckstein, and Donovan, which arose many
months prior. Plaintiff might have brought a retaliation claim against Haese
had she been the only defendant here, but that is not the situation Plaintiff

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faces. As a result, these claims cannot proceed within the context of this
litigation.2
The same reasoning bars the joinder of Plaintiff’s claims relating to the
January 13, 2017 conduct report. The relevant defendants, Francios, Bauman,
and Brant, have no connection whatsoever to the alleged misconduct
surrounding the 2016 Ramadan fast. Whatever the merits of his claim for
denial of procedural due process with respect to the conduct report, it has
nothing to do with his First Amendment claim which much earlier and
against different individuals. Consequently, George requires the dismissal of

2

Additionally, Plaintiff’s allegations of reprisal fail on their merits. First, despite his
complaint that he was placed in administrative segregation after writing to a fellow Muslim,
he does not allege who made the decision to place him in segregation. Similarly, Plaintiff
suggests that his legal papers were tampered with, but does not name the person he believes is
responsible. Section 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). Thus,
Plaintiff’s allegations of wrongdoing without an actor do not state a Section 1983 claim.
Moreover, while he claims that Haese received his December 31, 2016 complaint about the
rules in his new dorm, he does not allege what she did in response, nor does he allege that she
was the person who decided to transfer him to the new dorm. He has therefore failed to
alleged facts showing that Haese did anything wrongful in connection with the new dorm or
his December 31, 2016 complaint.

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these defendants and Plaintiff’s procedural due process claim related to the
conduct report.3
To reiterate: Plaintiff’s new allegations in his second amended
complaint relating to alleged misconduct occurring on or after December 31,
2016, cannot be brought in this lawsuit. The present action is confined to
Plaintiff’s allegations of wrongdoing in connection with the 2016 Ramadan
fast; it is not a forum for him to air every new disagreement he might have
with prison staff. For the reasons stated above and in the Court’s prior
screening orders, the Court again concludes that Plaintiff will be permitted
to proceed only on the following claim: a First Amendment claim against
Donovan, Haese, and Eckstein for deprivation of the right to the free exercise
of his religion.
Accordingly,
IT IS ORDERED that Plaintiff’s claim for violation of his due process
rights under the Fourteenth Amendment in connection with the January 13,

3

The Court also expresses significant doubt that Plaintiff has properly exhausted the
prison administrative grievance procedures for his new claims. The Prison Litigation Reform
Act (“PLRA”) establishes that, prior to filing a lawsuit complaining about prison conditions, a
prisoner must exhaust “such administrative remedies as are available[.]” 42 U.S.C. § 1997e(a).
To do so, the prisoner must “file complaints and appeals in the place, and at the time, the
prison’s administrative rules require,” and he must do so precisely in accordance with those
rules; substantial compliance does not satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001); Burrell v. Powers, 431
F.3d 282, 284–85 (7th Cir. 2005). It is unlikely that Plaintiff has exhausted the administrative
procedures available to him through the Department of Corrections for any of his claims
arising since December 31, 2016 because they are of such recent vintage. Indeed, it would be
nigh impossible for Plaintiff to exhaust his remedies as to alleged misconduct which occurred
last week, as is the case with the disposition of the conduct report and the revocation of his
medium-security designation. The Court cautions Plaintiff that he should endeavor to
properly exhaust any claim before attempting to bring it before the Court.

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2017 conduct report be and the same is hereby DISMISSED without
prejudice;
IT IS FURTHER ORDERED that Defendants Patrick Brant, Brian
Bauman, and Catherine Francios be and the same are hereby DISMISSED
from this action; 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 23rd day of February, 2017.
BY THE COURT:

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

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