Saldana v. Leyendecker et al

Filing 16

ORDER signed by Judge J.P. Stadtmueller on 2/22/2017. Plaintiff to file amended pleading curing deficiencies in his complaint (Docket #1) by 3/24/2017; failure to do so may result in dismissal of action for failure to prosecute. See Order. (cc: all counsel, via mail to Jonathan Lee Saldana and Warden at Stanley Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JONATHAN LEE SALDANA,
Plaintiff,
v.

Case No. 16-CV-1577-JPS

CORPORAL R. LEYENDECKER,
C.O. T. VANEGEREN, C.O. R.
LONGSINE, CORPORAL WEED,
CORPORAL M. ANDERSON,
CORPORAL LANGAN,
LIEUTENANT J. RHODE,
LIEUTENANT HALASI, and
LIEUTENANT TIMRECK,

ORDER

Defendants.

The plaintiff, who is incarcerated at Stanley Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). Magistrate Judge Nancy Joseph previously
granted the plaintiff’s motion to proceed in forma pauperis. (Docket #6). The
plaintiff has been assessed and paid an initial partial filing fee of $16.70. 28
U.S.C. § 1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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)); see 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

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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);
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, 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)).
The plaintiff’s primary allegations center on his claim that, while
incarcerated at the Brown County Jail (the “Jail”), he was not afforded
adequate access to legal materials. (Docket #13 at 2-6). Specifically, as an

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inmate held in the segregation unit, known as “Fox Pod,” the plaintiff was
not allowed to use the Jail’s law library. Id. at 3. The plaintiff also complains
that the Jail does not provide sufficient legal aid to pro se inmates, such as
allowing them to use the library even when on segregation status, and
permitting them to make free copies of legal documents. Id. at 5-6.
The plaintiff also appears to allege other claims. He asserts that the
Jail’s grievance procedures violated his due process rights. Id. at 4. He further
alleges that he was placed in the segregation unit based on an
unconstitutional policy implemented by the Jail. Namely, if an inmate
accrued segregation time in a previous stay at the Jail, the Jail would continue
to enforce that punishment upon the inmate’s re-entry in the Jail, until the
segregation sentence was completed. Id. at 3-4. For relief, the plaintiff
requests monetary damages and “that Brown County Jail Administration,
Staff and all Defendants . . . begin to consider State, Federal, Civil and
Constitutional Rights not only for myself, [b]ut for all Incarcerated persons
alike. Specifically Fox-Pod where Individuals such as myself are ‘not entitled’
to exercise our Constitutional Rights.” Id. at 7.
In its current form, the complaint fails to state any viable claims for
relief. The plaintiff’s issues with legal materials are in the form of an “accessto-courts” claim. Such a claim has two required elements: “[f]irst, the prisoner
must prove that prison officials failed to assist in the preparation and filing
of meaningful legal papers[, and] [s]econd, he must show some quantum of
detriment caused by the challenged conduct of state officials.” Lehn v. Holmes,
364 F.3d 862, 868 (7th Cir. 2004). Even assuming the plaintiff has adequately
alleged the first element, the complaint says nothing about the second. The

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second element requires the plaintiff to “allege an actual injury,” namely
“that some action by the prison has frustrated or is impeding an attempt to
bring a nonfrivolous legal claim.” In re Maxy, 674 F.3d 658, 660-61 (7th Cir.
2012). The plaintiff does not allege what underlying court action he is
litigating which was impeded by the Jail’s library and legal material policies.
The Court notes further problems with the complaint on this point.
First, the plaintiff states that he is proceeding pro se in what the Court
assumes is the underlying court action. (Docket #13 at 5). If that action is a
criminal case where he is entitled to appointed counsel, and he has refused
that counsel, he cannot present an access-to-courts claim for inadequate
access to legal materials affecting his ability to defend himself. See Alexander
v. Shan, 161 F. App’x 571, 576 (7th Cir. 2005) (“Pretrial detainees have access
to legal assistance through their appointed counsel, and refusing counsel’s
assistance does not give rise to a right of access to legal materials.”).
Second, the plaintiff conclusorily alleges that each of the defendants
contributed to violating his access-to-courts rights. (Docket #13 at 7).
However, this claim seems to be posed as one against the Jail’s overarching
policies on library access and legal materials, not as to any particular
defendant’s individual actions related to those issues. See id. at 2-6 (the
plaintiff repeatedly levels accusations at “Brown County Jail” itself). Though
Brown County is not named as a defendant, such a claim might be
permissible pursuant to the Monell doctrine. See Monell v. Dept. of Soc. Servs.
of City of New York, 436 U.S. 658, 690 (1978).1 Monell establishes that entities

1

Brown County, and not the Jail itself, would be the proper party; the Jail is not a
separate suable entity. Averhart v. City of Chicago, 114 Fed.Appx. 246, 247 (7th Cir. 2004).

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like Brown County may be liable under Section 1983 if “the unconstitutional
act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an
official with final policy-making authority.” Thomas v. Cook County Sheriff’s
Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436 U.S. at 690). If this
is the claim the plaintiff wishes to pursue, he must provide allegations
regarding these elements. For instance, the current complaint says nothing
about any of the defendants’ policymaking authority. Further, the plaintiff
should know that a Monell claim requires proof of an underlying
constitutional violation. Houskins v. Sheahan, 549 F.3d 480, 493-94 (7th Cir.
2008). He must therefore allege a valid access-to-courts claim before he could
proceed on a Monell theory.
Finally, the complaint repeatedly mentions other inmates and implies
that it seeks relief on their behalf. See, e.g., (Docket #13 at 7). The plaintiff
cannot pursue such relief. No other inmates are named as plaintiffs or signed
the complaint. See id. at 1, 8. To the extent the plaintiff wished to proceed
with a class action, courts have repeatedly declined to allow pro se prisoners
to represent a class. 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 an imprisoned pro se litigant to represent his
fellow inmates in a class action); Lee v. Gardinez, Civil No. 11-570, 2012 WL
143612 *1 n.1 (S.D. Ill. Jan. 18, 2012) (“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.”) (quoting Craig v. Cohn, 80

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F.Supp.2d 944, 946 (N.D. Ind. 2000); see also Fymbo v. State Farm Fire and Cas.
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.”).
As to the plaintiff’s other claims regarding grievances and segregation
assignment, no matter their merits, they cannot be brought in this lawsuit. As
instructed by the Seventh Circuit Court of Appeals, under the controlling
principle of Federal Rule of Civil Procedure (“FRCP”) 18(a), “[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). Specifically, FRCP 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. Moreover, the court in George reminded district
courts that FRCP 20 applies as much to prisoner cases as it does to any other
case. Id. at 607. Under FRCP 20, joinder of multiple defendants into one
action is proper 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
grievance and segregation assignment issues are unrelated to the access-tocourts claim and must therefore be brought in separate lawsuits.

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The Court will permit the plaintiff to file an amended complaint curing
the deficiencies in the original complaint as described herein. The amended
complaint must be filed on or before March 24, 2017. Failure to file an
amended complaint within this time period may result in dismissal of this
action. The plaintiff is advised that the amended complaint must bear the
docket number assigned to this case and must be labeled “Amended
Complaint.” The plaintiff is further advised that a successful complaint
alleges “the who, what, when, where, and how: the first paragraph of any
newspaper story.” See 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
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,

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IT IS ORDERED that on or before March 24, 2017, the plaintiff shall
file an amended pleading curing the defects in the original complaint as
described herein.
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall 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; doing so will only delay the processing of this matter.
The 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 22nd day of February, 2017.
BY THE COURT:

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

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