Ali v. Eckstein et al

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 12/19/2016 GRANTING 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to file amended pleading by 1/9/2017. Wisconsin DOC to collect balance of filing fee from Plaintiff's prison trust account per 28 U.S.C. § 1915(b)(2). (cc: all counsel, via mail to Ouati 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

SCOTT ECKSTEIN, MICHELLE
HAESE, MICHAEL DONOVAN,
ALAN DEGROOT, KELLY
SALINAS, and CINDY
O’DONNELL,

ORDER

Defendants.

Plaintiff, who is incarcerated at Green Bay Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the Court on Plaintiff’s
motion to proceed in forma pauperis. (Docket #2). Plaintiff has been assessed
and paid an initial partial filing fee of $9.05. 28 U.S.C. § 1915(b)(4).
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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). 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

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above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted);
Christopher, 384 F.3d at 881.
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 “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. 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)).
Plaintiff states that he is an adherent of Islam. (Docket #1 at 2). In 2016,
the Muslim holy month of Ramadan, which involves fasting from morning
to evening, lasted from June 6 to July 5. On April 1, 2016, Plaintiff sent a
request to the prison Chapel Services department, asking that he be provided
a “religious diet form,” which he would use to request an appropriate meal
for the Eid-al-Fitr feast at the close of Ramadan. Id. Plaintiff also filed a
request to be placed on the list for “Ramadan participation” beginning on

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June 6, 2016. Id. On April 4, 2016, in response to his first request, Chaplin
Donovan (“Donovan”) of Chapel Services sent Plaintiff a “new religious
practice or property” form, which Plaintiff alleges was not the form he
requested and not the proper form for the meal request. Id. Plaintiff further
claims that Donovan did not respond at all to Plaintiff’s second request—that
he be placed on the list for Ramadan participation. Id.
On April 5, 2016, Plaintiff sent an “interview/information” request
form to Donovan, inquiring as to whether he had been placed on the list for
Ramadan observance. Id. On April 13, 2016, Donovan responded, stating that
the deadline to sign up for Ramadan observance was April 7, 2016. Id. at 3.
Donovan further stated that “Management would not allow me (Donovan)
to put a memo on channel 8, posting a deadline date.” Id. The Court gathers
that “channel 8” is an intra-prison television channel that provides
announcements and other information to inmates, including deadlines for
submitting forms such as the Ramadan participation form.
On April 15, 2016, Plaintiff encountered Donovan while on his way to
dinner. Id. Plaintiff again requested that he be placed on the Ramadan
observance list, noting that his request was timely made on April 1. Id.
Donovan suggested that Plaintiff should write to Program Director Michelle
Haese (“Haese”) and ask that she help rectify Donovan’s error. Id. Plaintiff
wrote to Haese the same day. Id. She allegedly responded on April 16, 2016,
stating that Plaintiff should “[b]e patient” as she was “trying to resolve the
problem.” Id.
On April 18, 2016, Plaintiff filed a complaint with the prison complaint
examiner regarding his problems in attempting to participate in Ramadan.

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Id. On or around April 22, 2016, Plaintiff spoke with the prison warden, Scott
Eckstein (“Eckstein”), and prison Security Director, John Kind, regarding
these problems. Id. Plaintiff alleges that the three men discussed Plaintiff’s
failure to receive notice of the deadline to sign up for Ramadan participation.
Id. Apparently, the prison had replaced using “channel 8” for notifying
inmates of such deadlines, though Plaintiff does not describe what the new
notification system was. Id. During this conversation, Eckstein agreed that
the new notification system was not working and stated that other inmates
had complained of not being notified of the Ramadan sign-up deadline. Id.
Eckstein also agreed, according to Plaintiff, that there was no notice given to
inmates that there were going to be changes to the manner in which inmates
were notified of upcoming deadlines related to religious matters. Id. Plaintiff
alleges that “[a]t the end of our discussion, Warden Eckstein had reassured
me that he [would] look into the issue.” Id.
On May 11, 2016, complaint examiner Alan DeGroot (“DeGroot”)
dismissed Plaintiff’s April 18 complaint. Id. DeGroot reasoned that: (1)
Plaintiff had not informed Haese that he wanted to participate in Ramadan;
(2) Plaintiff could fast on his own, without the provision of a morning and
evening meal from the kitchen staff, and feed himself in the morning and
evening at his own expense with food purchased from the canteen or by
saving food from the meals he was given during the day. Id. Eckstein
reviewed and confirmed DeGroot’s decision. Id. On May 20, 2016, Plaintiff
appealed the decision, which was affirmed on June 14, 2016 by complaint
examiner Kelly Salinas (“Salinas”). Id. On July 13, 2016, Cindy O’Donnell
(“O’Donnell”), of the Wisconsin Department of Corrections Office of the

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Secretary, confirmed the complaint examiner’s decision, too. Id. In his
complaint, Plaintiff prays for money damages against each of the named
defendants. Id. at 4.
Plaintiff’s complaint fails to state a claim upon which relief may be
granted for a number of reasons. First, Plaintiff must tell the Court what
injury he suffered. Was he unable to participate in Ramadan at all, or was he
able to participate in Ramadan but with accommodations from the prison?
A defendant must be placed on notice of what injury Plaintiff claims he
suffered.
Second, once Plaintiff identifies his injury or injuries, he must clearly
identify which of his rights he believes were violated by which of the named
defendants. In particular, if Plaintiff is seeking to recover under 42 U.S.C. §
1983 for constitutional violations by these defendants, he should so state. If
he has some other theory for recovery, he should make that clear. Without
tying his case to a particular cause of action, the Court has no way to analyze
Plaintiff’s claims.
Finally, if Plaintiff is pursuing a Section 1983 claim against these
defendants, he must better define what constitutional rights he alleges were
violated and how each defendant violated them. Further elucidation is
important here, because each of these defendants might be held liable for
different conduct and for different reasons. For instance, it appears that
Plaintiff may have been denied the ability to participate in Ramadan with
accommodations from the prison, which could be viewed as a deprivation of
Plaintiff’s right to free exercise of his religion under the First Amendment. To
state such a claim, Plaintiff must allege facts showing that the defendants
“personally and unjustifiably placed a substantial burden on his religious
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practices.” Thompson v. Holm, 809 F.3d 376, 379 (7th Cir. 2016); see also Conyers
v. Abitz, 416 F.3d 580, 585 (7th Cir. 2005). As to other defendants, however,
it appears that Plaintiff attacks their responses to his inmate complaints,
which might implicate his due-process rights under the Fourteenth
Amendment. For this species of constitutional claim, Plaintiff “must show
that [the defendants] deprived him of a constitutionally protected interest in
‘life, liberty, or property’ without due process of law.” Williams v. Ramos, 71
F.3d 1246, 1248 (7th Cir. 1995).
To rectify these problems, the Court will permit Plaintiff to amend his
complaint. If he wants to proceed, Plaintiff must file an amended complaint
curing the deficiencies in the original complaint as described herein. The
amended complaint must be filed on or before January 9, 2017. Failure to file
an amended complaint within this time period may result in dismissal of this
action. Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
Plaintiff is further advised that a successful complaint alleges “the who,
what, when, where, and how: the first paragraph of any newspaper story.”
DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
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 Seventh Circuit 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); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general

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matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006)). If an amended complaint is received, it will be
screened pursuant to 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that on or before January 9, 2017,
Plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from Plaintiff’s
prisoner trust account the balance of the filing fee by collecting monthly
payments from 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 FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined; and
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to

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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 Plaintiff is no longer
incarcerated any of these 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
Plaintiff is further advised 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.
Dated at Milwaukee, Wisconsin, this 19th day of December, 2016.
BY THE COURT:

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

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