Porter v. Clarke et al
Filing
10
ORDER signed by Judge J.P. Stadtmueller on 1/12/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Secretary of Wisconsin DOC to collect balance of filing fee from plaintiff's prisoner trust a ccount. Plaintiff to file amended complaint curing deficiencies by 2/2/2017. 4 Plaintiff's Motion to Supplement Complaint DENIED as moot. See Order. (cc: all counsel; via mail to Dayrimus Porter and Warden at Dodge Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAYRIMUS PORTER,
Plaintiff,
v.
Case No. 16-CV-1686-JPS
DAVID A. CLARKE, JR., OFFICER
BLUE, OFFICER BROOKS, BIO
CLEANERS, NURSE GRAY, and JOHN
AND JANE DOES,
ORDER
Defendants.
The plaintiff, who is incarcerated at Dodge 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 the
plaintiff's motion to proceed in forma pauperis. (Docket #2). The prisoner’s
trust fund account statement reveals that he lacks the funds to pay an initial
partial filing fee. 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)); 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
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.
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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 alleges that on July 10, 2016, he was booked into the
Milwaukee County Jail (the “Jail”) and placed in the special needs unit on
suicide watch. (Docket #1 at 2). The cell had feces on the wall and the
plaintiff’s mattress was exposed to urine. Id. This caused the plaintiff to suffer
an “outbreak” of some type on his skin, causing rashes and boils. Id. He
further alleges that he suffered numerous spider bites. Id. at 3.
The plaintiff alleges that he told Officers Blue (“Blue”) and Brooks
(“Brooks”) about the conditions but does not say what they did in response.
Id. He also informed Nurse Gray (“Gray”) of his medical problems, but again
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fails to relate her response. Id. The plaintiff filed a grievance on the issue, and
was told that he should have mentioned the cell’s unclean condition as soon
as he was placed in it, and Jail staff would have cleaned it. Id.; (Docket #1-1).
He alleges that the defendants failed “to uphold Wisconsin state statute
302.37(1)(a)(B),” and that his cell’s condition amounted to cruel and unusual
punishment. (Docket #1 at 4).
Other than Blue, Brooks, and Gray, none of the other defendants have
any factual allegations tied to them. Without such allegations, they cannot
remain as defendants in this lawsuit. Even as to Blue, Brooks, and Gray, the
plaintiff’s allegations fall short of stating viable claims. The Eighth
Amendment governs claims regarding unsanitary prison conditions,
imposing liability on prison officials when “(1) there is a deprivation that is,
from an objective standpoint, sufficiently serious that it results ‘in the denial
of “the minimal civilized measure of life's necessities,”’ and (2) where prison
officials are deliberately indifferent to this state of affairs. Gray v. Hardy, 826
F.3d 1000 (7th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
While the plaintiff’s allegations would certainly pass the screening threshold
as to the first element, they offer nothing on the second. The plaintiff is silent
on what Blue and Brooks did after he told them about his cell conditions.
He similarly fails to establish Gray’s liability. It appears the plaintiff
is dissatisfied with Gray’s medical care. An Eighth Amendment claim for
inadequate medical care requires proof that “[the [plaintiff] had an
objectively serious medical condition; (2) the defendants knew of the
condition and were deliberately indifferent to treating [him]; and (3) this
indifference caused [him] some injury.” Gayton v. McCoy, 593 F.3d 610, 620
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(7th Cir. 2010). Assuming without deciding that the first and third elements
are adequately pleaded, the plaintiff states nothing on Gray’s response to
being told about his medical problems or his subsequent course of treatment.
The Wisconsin Supreme Court has held that negligence claims may be
brought for violations of duties established by Chapter 302 of the Wisconsin
statutes. Swatek v. Cnty. of Dane et al., 531 N.W.2d 45, 57 (Wis. 1995). The
Court again assumes, without deciding, that the plaintiff appropriately
pleaded such a claim as to any defendant. Even had he done so, the claim is
based purely upon state law. Because the plaintiff states no viable federal
claims, the Court would have no jurisdiction of a state law negligence claim.
See 28 U.S.C. §§ 1331-1332.
The Court finds that the plaintiff has failed to state any viable claims
for relief. It will nevertheless provide him with an opportunity to amend his
complaint. If the plaintiff elects to proceed, he must file an amended
complaint curing the deficiencies in the original complaint as described
herein. The amended complaint must be filed on or before February 2, 2017.
Failure to file an amended complaint within this time period may result in
dismissal of this action without further notice. 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.
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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.
Finally, the Court addresses the plaintiff’s motion to supplement his
complaint. (Docket #4). This motion will be denied as moot, as the plaintiff
now has an opportunity to include any relevant allegations in his amended
complaint. The Court nevertheless offers additional instruction for the
plaintiff’s benefit. His motion appears to claim that “the plaintiff’s public
defender, trial judges [sic] and district attorney” conspired to retaliate against
him for filing this action. Id. at 1. Assuming such a claim would even be
viable, it could not be brought as part of this lawsuit.
The Seventh Circuit instructs that “[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, Federal
Rule of Civil Procedure 18(a) provides that a “party asserting a claim,
counterclaim, crossclaim, or third-party claim may join, as independent or
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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 Rule 20,
Federal Rules of Civil Procedure, applies as much to prisoner cases as it does
to any other case. 507 F.3d at 607. Under Rule 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 additional claim the plaintiff proposes in his motion
has nothing to do with the facts underlying his original claims, and the sets
of defendants are entirely different. The Court cautions the plaintiff that
attempting to include claims in violation of the George rules will result in
their dismissal.
Accordingly,
IT IS ORDERED that the 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 February 2, 2017, the
plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that the plaintiff’s motion to supplement
his complaint (Docket #4) be and the same is hereby DENIED as moot;
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IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his shall collect from the plaintiff’s prisoner
trust account the 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 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
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 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
The plaintiff is further advised that failure to make a timely
submission may result in the dismissal of this action for failure to prosecute.
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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 12th day of January, 2017.
BY THE COURT:
____________________________________
J.P. Stadtmueller
U.S. District Judge
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