Kind v. Department of Corrections

Filing 11

ORDER signed by Judge Pamela Pepper on 9/19/2017 DENYING 10 Plaintiff's Motion to Amend/Correct Complaint. To proceed with case plaintiff must file amended complaint on enclosed EDWI form in order for the court to receive it by 10/20/2017. Failure to file by deadline will result in dismissal for failure to state a claim without further notice or hearing. (cc: all counsel, via mail to Harold Kind-with copy of EDWI prisoner complaint form and guide) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
HAROLD C. KIND, JR.,
Plaintiff,
v.

Case No. 16-cv-1650-pp

DEPARTMENT OF CORRECTIONS,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT (DKT. NO.
10), AND REQUIRING PLAINTIFF TO FILE AN AMENDED COMPLAINT IN
TIME FOR THE COURT TO RECEIVE IT BY OCTOBER 20, 2017
______________________________________________________________________________
On December 12, 2016, Harold C. Kind, a Wisconsin state prisoner who
is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that
the “Department of Corrections” violated his constitutional rights. Dkt. No. 1.
The court screened the complaint on August 2, 2017, dkt. no. 9, and explained
to the plaintiff that the Department of Corrections, because it is not a person,
was not a proper defendant in a §1983 case, id. at 4. The court ordered that on
or before September 8, 2017, the plaintiff must file an amended complaint,
naming a proper defendant and describing what actions that defendant took to
violate his constitutional rights. Id. at 5. The court also asked the plaintiff to
describe what relief he sought from whatever defendant or defendants he
named. Id. The court warned the plaintiff that failure to timely file an amended
complaint would result in dismissal of the case for failure to state a claim. Id.
at 6.

1

On September 11, 2017, the court received from the plaintiff a document
entitled “Motion to Amend Complaint.” Dkt. No. 10. In the motion, the plaintiff
asked to name “Judy Smith,” “Parole Commissioner Drankiewicz,” “Social
Worker Messing,” and “Record Department Tomlin” as defendants. Id. at 1. The
plaintiff did not, however, attach a proposed amended complaint for the court
to screen. The plaintiff also asked the court to allow him to use his release
account to pay the full filing fee. Id. at 1-2.
As the court told the plaintiff in its August 2, 2017 order, the plaintiff
must file a new document that labeled “amended complaint.” Dkt. No. 9 at 5-6.
The amended complaint must bear the docket number assigned to this case
(the plaintiff’s “Motion to Amend Complaint,” dkt. no. 10, lists Dkt. No.
04CF361; the case number assigned to this case is 16-cv-1650). In the caption
of the amended complaint, the plaintiff must identify specific individuals who
violated his constitutional rights. In the body of the amended complaint, the
plaintiff must describe what actions each individual took to violate his
constitutional rights. The body of the complaint also must describe what relief
the plaintiff seeks from those individuals. The court cannot look at the old
complaint, dkt. no. 1, when determining whether the plaintiff stated a claim in
the new complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist.
No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998) (the “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading[.]”).
The court will give the plaintiff one more opportunity to file an amended
complaint. The court is sending, along with this order, a packet containing a
2

blank complaint form. The plaintiff must write the word “Amended” at the top
of the first page of the complaint, next to the word “Complaint.” The plaintiff
must list under “Full name of defendant(s))” the name of every person he wants
to sue. He must put the case number of this case—16-cv-1650—in the blank
under the words “Case Number” on the first page. Next to number 2,
“Defendant” at the bottom of the first page, he must again list all of the people
he wishes to sue. Then, in section B (“Statement of Claim”), the plaintiff should
describe what he believes each individual defendant did to violate his
constitutional rights. On page 4 of the complaint form, he must describe what
relief he wants from the defendants.
If the plaintiff does not file this amended complaint in time for the court
to receive it by the deadline the court sets below, the court will dismiss this
case without further notice or hearing for failure to state a claim.
The court also will deny the plaintiff’s request to use his release account
to pay the full filing fee. The Prison Litigation Reform Act requires the court to
collect the filing fee from a “prisoner’s account.” 28 U.S.C. §1915(b). The term
“prisoner’s account” encompasses both a prisoner’s release account and
general account. Spence v. McCaughtry, 46 F. Supp. 2d 861, 862 (E.D. Wis.
1999). The language in 28 U.S.C. §1915(b)(1), however, suggests that prison
officials are required to use a prisoner’s release account to satisfy “an initial
partial payment if no other funds are available.” Robinson v. Tegels, No. 13-CV198-WMC, 2013 WL 1192485, at *1 (W.D. Wis. Mar. 22, 2013) (citing Carter v.
Bennett, 399 F.Supp.2d 936, 936-37 (W.D.Wis.2005). Therefore, “with the
3

exception of initial partial payments, federal courts lack authority to tell state
officials whether and to what extent a prisoner should be able to withdraw
money from his release account.” Id.
The court ORDERS that the plaintiff’s motion to amend complaint is
DENIED. Dkt. No. 10.
The court ORDERS that if the plaintiff wants to proceed with this case,
he must file an amended complaint (following the court’s instructions above),
in time for the court to receive it by the end of the day on October 20, 2017. If
the court does not receive an amended complaint from the plaintiff by the end
of the day on October 20, 2017, the court will dismiss the case without further
notice or hearing for failure to state a claim.
Dated in Milwaukee, Wisconsin this 19th day of September, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

4