Simpson v. Litscher et al

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 4/25/2017 GRANTING 3 , 9 Plaintiff's Motions for Leave to Proceed Without Prepayment of the Filing Fee. Action DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) as frivolou s. Clerk of Court to DOCUMENT that this inmate: has brought an action that was dismissed as frivolous under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) and has incurred a "strike" under 28 U.S.C. § 1915(g). Agency having cust ody of Plaintiff to COLLECT balance of filing fee from Plaintiff's prison trust account. The Court CERTIFIES that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless Plaintiff offers bona fide arguments supporting his appeal. (cc: all counsel, via mail to Willie C. Simpson and Warden at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Plaintiff,
v.

Case No. 17-CV-359-JPS

JON E. LITSCHER, SCOTT
ECKSTEIN, JOHN KIND, CAPTAIN
SCHULTZ, LT. ELSINGER, LT.
VAHLAHAN, SGT. KOELLER, SGT.
MENNING, SGT.
ROZMARYNOSKI, SGT. HERT, C.O.
BRUNNER, C.O. GRABOWSKI, C.O.
BEBO, C.O. BONNIN, C.O. MEYER,
C.O. DELFOSSE, C.O. WEYCKER,
C.O. TREML, C.O. DIEDRICK, C.O.
PEOTTER, C.O. POTTS, C.O.
VANDEVELDEN, C.O.
SCHEMECK, C.O. NEMETZ, C.O.
REYES, C.O. GUERRERO, C.O.
LEWIS, C.O. YANG, C.O.
HEFFERNAN, C.O.
ROBEHHAGEN, J. PERTTU, C.O.
PETER BAUGH, C.O. AVERY, C.O.
BRUSO, C.O. TURCK, and JOHN
DOES,

ORDER

Defendants.

Plaintiff, who is incarcerated at Green Bay Correctional Institution
(“GBCI”), 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 motions to proceed in forma pauperis. (Docket #3, #9). Plaintiff’s
initial partial filing fee was waived. (Docket #12); 28 U.S.C. § 1915(b)(4).
Before the Court screens Plaintiff’s complaint, it must address the
matter of whether granting him in forma pauperis status is appropriate. As
part of the Prison Litigation Reform Act (“PLRA”), if a prisoner files more
than three actions or appeals which are dismissed as frivolous or malicious
or for failure to state a claim upon which relief can be granted, the prisoner
is prohibited from bringing any other actions in forma pauperis unless he is in
imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Commonly
known as the “three-strikes” provision, a prisoner is said to have struck out
once he has accrued three dismissals under this section.
Here, it is evident that Plaintiff has accrued many, many strikes during
his long period of incarceration. Examples include: (1) Simpson v. Walker, 14CV-198 (E.D. Wis.); (2) Simpson v. Walker, 11-CV-838 (W.D. Wis.); (3) Simpson
v. Douma, 04-CV-298 (W.D. Wis.); and (4) Simpson v. Maas, 04-CV-29 (W.D.
Wis.). Indeed, Plaintiff was recently subjected to a filing bar throughout this
Circuit under Support Systems International Inc. v. Mack, 45 F.3d 185, 186–87
(7th Cir. 1995), for his incessant and frivolous filings. Simpson v. Eckstein, No.
16-3436, Docket #14 (7th Cir. Mar. 30, 2017). Pursuant to that order, Plaintiff
“is barred from filing further civil suits in the courts of this circuit” until he
pays a fine of $1,000. Id. at 2. He is also barred from filing any further
collateral attacks on his conviction or sentence until the fine is paid. Id.
Because Plaintiff filed this suit on March 10, 2017, shortly before the Mack bar
was issued, it does not appear that it prevents further filings from him in
connection with this action.

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Having determined that Plaintiff has struck out, the Court turns to the
consideration of whether he meets the exception for “imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). As will be explained further
below, Plaintiff alleges that prison guards are threatening to kill him and are
encouraging inmates to kill him, which represents an imminent physical
danger to Plaintiff. Thus, the Court finds that Plaintiff’s allegations satisfy the
imminent-danger exception, and it will grant him leave to proceed in forma
pauperis in this case.
The Court now proceeds to screen Plaintiff’s complaint. 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. Id. §
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. Id. § 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); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
2011).

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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; his statement need only
“‘give the defendant fair notice of what the. . .claim is and the grounds upon
which it rests.’” Bell Atl. 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. The complaint allegations “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555;
Christopher, 384 F.3d at 881.
In considering whether a complaint states a claim, courts should first
“identif[y] 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

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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); Gomez v. Toledo, 446 U.S. 635, 640
(1980). The Court is obliged to give 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 names a panoply of defendants in this case. (Docket #1 at
1–2). First is Wisconsin Department of Corrections Secretary Jon E. Litscher
(“Litscher”). Id. at 2. Next is Scott Eckstein (“Eckstein”), warden at GBCI. Id.
Plaintiff also names GBCI Security Director John Kind (“Kind”), and the
prison’s inmate complaint examiner, J. Perttu (“Perttu”). Id. Finally, Plaintiff
names over thirty-one other individuals, some identified by name and some
identified only as John Does, who are all correctional officers of various ranks
at GBCI (the “Guard Defendants”). Id.
Plaintiff is presently confined to segregation at GBCI. Id. at 4. Between
2015 and January 2017, he filed numerous challenges to his conviction and
sentence. Id. As noted above, they were so patently frivolous as to warrant
a Mack bar. Plaintiff’s complaint arises primarily from allegations that
Defendants have endeavored to stop him from filing these collateral attacks.
Id. at 3.
Between January 2016 and March 2017, the Guard Defendants
routinely came to Plaintiff’s cell and threatened to harm or kill him for
pursuing these collateral attacks. Id. at 4. They also encouraged and recruited
prisoners to assault Plaintiff should he venture out into the general prison
population. Id. Moreover, the prisoners in segregation have agreed to deny

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Plaintiff’s allegations that the Guard Defendants are encouraging them to
attack Plaintiff. Id. In one specific instance, C.O. Grabowski escorted another
inmate to Plaintiff’s cell and encouraged the inmate to confront Plaintiff
about his litigation efforts. Id. at 6. The inmate kicked the door and
threatened to assault Plaintiff once Plaintiff was released from segregation.
Id. The officer stood by and encouraged the inmate’s threats. Id. Plaintiff
claims that Perttu and Eckstein, who reviewed his grievances about the
Guard Defendants’ threats against him, acted with deliberate indifference to
the risk of harm facing Plaintiff and actively covered up the Guard
Defendants’ misconduct by ignoring and rejecting his grievances. Id. at 3, 6.
In a further attempt to disrupt and discourage Plaintiff’s litigation, the
Guard Defendants routinely come to Plaintiff’s cell when he is asleep and
wake him, in order to deprive him of sleep and provoke confrontation
between him and the officers. Id. at 6. Another tactic involves harming
Plaintiff’s health. Plaintiff suffers from HIV as well as several other
conditions. Id. at 5. Between March 2016 and March 2017, Plaintiff has not
received treatment for his conditions, either from outside specialists or prison
doctors, because the Guard Defendants prevent him from leaving his cell by
threatening to assault him should he leave the cell. Id. Additionally, they keep
him from taking necessary food and medication because when they drop it
off through his cell trap door, they pour such items on the ground and
contaminate them. Id. At other times, the Guard Defendants have totally
refused to provide Plaintiff’s medication. Id. at 6.
Plaintiff raises the following claims based on these facts: (1) deliberate
indifference to his serious medical needs, in violation of the Eighth

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Amendment; (2) failure to protect him from the risk of harm of assault by
fellow prisoners and other correctional officers, in violation of the Eighth
Amendment; (3) deprivation of sleep, in violation of the Eighth Amendment;
and (4) retaliation against him for challenging his conviction and sentence in
court, in violation of the First Amendment. Id. at 3–4. Plaintiff demands
injunctive relief and compensatory and punitive damages. Id. at 7–8.
Analyzing Plaintiff’s complaints individually against each Defendant,
as he presents them, there is little question that he would be permitted to
proceed. His Eighth Amendment claims relating to death threats, deprivation
of sleep, and denial of food and medication without doubt pass muster under
the relevant standards. See Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005);
Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987); Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). Likewise, these nefarious acts, if taken in retaliation
for Plaintiff’s habeas litigation, would likely violate the First Amendment.
Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008).
But Plaintiff’s presentation of his claims is not the end of the story. The
unspoken, fundamental premise of Plaintiff’s complaint is that Defendants
conspired to deprive him of his civil rights. Absent such an allegation, his
complaint would be barred by George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007), since there is no common transaction or occurrence tying the alleged
instances of threats and other deprivations together. George holds that under
the federal joinder rules, “[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 PLRA. Id. Consequently, “multiple
claims against a single party are fine, but Claim A against Defendant 1 should

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not be joined with unrelated Claim B against Defendant 2.” Id.; see also Fed.
R. Civ. P. 20(a)(2) (requiring that the plaintiff assert at least one claim against
all of defendants “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”).
In this case, George would require dismissal because Plaintiff advances
unrelated claims against multiple defendants for various discrete episodes
occurring over a span of years. While it is arguable that most of his claims
relate to guards’ threats and other misconduct, the guards’ conduct is not
related factually unless one also accepts that they were jointly animated by
conspiratorial purpose. Query, for instance, why a claim that C.O. Meyer
dropped Plaintiff’s medication on the floor one day has anything to do with
a claim that C.O. Grabowski, at some other time that same year, once
brought an inmate to Plaintiff’s cell door to threaten him. They are linked by
conspiracy and nothing more.
Appreciating the true theory of Plaintiff’s case reveals that his
allegations are too implausible to survive even the liberal standard applied
at screening. Determining plausibility is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679. Plausibility requires the plaintiff to give the court
“enough details about the subject-matter of the case to present a story that
holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Factual allegations that are “sketchy or implausible” may be insufficient to
provide a defendant with adequate notice of the plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, the Seventh Circuit has

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made clear that for “paranoid pro se litigation” involving “a vast,
encompassing conspiracy,” a court should demand “a high standard of
plausibility” before subjecting the defendants to the time and expense of
resisting the claims. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009);
Twombly, 550 U.S. at 556 (holding that the plausibility standard “calls for
enough facts to raise a reasonable expectation that discovery will reveal
evidence” supporting the plaintiff’s allegations).
In a case astoundingly similar to this one, the Seventh Circuit upheld
dismissal where an inmate alleged a wide-ranging conspiracy by many prison
officials to kill him and encourage others to kill him in retaliation for
litigation. Walton v. Walker, 364 F. App’x 256, 257 (7th Cir. 2010). The inmate
included both claims arising under the relevant constitutional provisions and
overarching conspiracy claims. Id. First, the Seventh Circuit found that the
inmate’s rambling allegations were vague, conclusory, and implicated a wide
variety of officials over a period of many months. Id. at 258. They were,
therefore, “not backed by sufficient factual development to make them
plausible enough to state a claim.” Id. Moreover, the Court of Appeals held
that “the district court was entitled to draw upon its familiarity with [the
inmate’s] prior meritless litigation (again describing sprawling conspiracies)
to conclude that his complaint consisted only of ‘claims describing fantastic
or delusional scenarios, claims with which federal district judges are all too
familiar.’” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 328 (1989)).
Plaintiff’s allegations of a prison-wide conspiracy to kill him in order
to prevent further habeas litigation are as just implausible as those in Walton.
To be sure, Plaintiff’s complaint identifies a time frame, the relevant

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individuals, and what actions they took. But the time frame covers a period
of over a year, the relevant individuals are listed in their dozens, and their
actions are described only in the vaguest terms. Except in the instance of C.O.
Grabowski, noted above, there is not a single detail regarding when any one
threat or untoward act occurred, what transpired, or who did it. Iqbal, 556
U.S. at 678 (holding that “‘naked assertion[s]’ devoid of ‘further factual
enhancement’” do not satisfy Rule 8) (quoting Twombly, 550 U.S. at 557).
Even the Grabowski allegation is no more specific than the allegations in
Walton, where the inmate referred to specific conversations occurring on
specific days, see Walton v. Walker, Civil No. 08–cv–486–MJR, 2009 WL
1470409, at *2–3 (S.D. Ill. May 27, 2009), and the Court of Appeals
nevertheless found those allegations wanting. And, as in Walton, despite
Plaintiff’s claims of a year-long conspiracy to kill him, there has been no
mention of any attack actually being carried out, either in his complaint or in
his numerous post-complaint filings. See (Docket #2, #3, #7, #9, #10); Walton,
364 F. App’x at 257. His fears seem untethered from reality.
Furthermore, considering Plaintiff’s allegations against the backdrop
of his penchant for unrelenting frivolous litigation, which earned him a Mack
bar only last month, the Court finds that Plaintiff has not met the “high
standard of plausibility” that the Seventh Circuit requires for alleging such a
vast, paranoid conspiracy. Cooney, 583 F.3d at 971. It is notable that Plaintiff’s
prior litigation has not only been undeniably frivolous, it also, like the inmate
in Walton, contained many allegations of vast, paranoid conspiracies to harm
him. Walton, 364 F. App’x at 258. For instance, in Simpson v. Haines, 536 F.
App’x 657, 657 (7th Cir. 2013), the Court of Appeals rejected as frivolous

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Plaintiff’s allegations that prison employees were conspiring to kill him by
pumping poisonous gas into his cell, and observed that he had made the
same allegations in several prior cases. Under the approach sanctioned in
Walton, this Court need not turn a blind eye to Plaintiff’s history of belief in
paranoid conspiracies like the one he alleges here.
Thus, the Court in this instance elects to wield its “unusual power to
pierce the veil of the complaint’s factual allegations and dismiss those claims
whose factual contentions are clearly baseless,” as is evident here. Nietzke, 490
U.S. at 327; Tatum v. Wall, Case No. 15-CV-1435, 2016 WL 2636272, at *3 (E.D.
Wis. May 5, 2016) (finding that the inmate’s multitude of claims against
dozens of defendants were linked only by an implausible theory of
conspiracy). The Court concludes that Plaintiff has provided no arguable
basis for relief, having failed to make any rational argument in law or fact to
support his claims. See Gladney, 302 F.3d at 774; House v. Belford, 956 F.2d 711,
720 (7th Cir. 1992). As a result, his complaint must be dismissed with
prejudice.
Accordingly,
IT IS ORDERED that Plaintiff’s motions for leave to proceed in forma
pauperis (Docket #3, #9) be and the same are hereby GRANTED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) as
frivolous;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has brought an action that was dismissed as frivolous under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1);

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IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that the agency having custody of the
prisoner shall collect from his institution 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. If Plaintiff is transferred to another
institution, the transferring institution shall forward a copy of this Order
along with Plaintiff’s remaining balance to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless
Plaintiff offers bona fide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of April, 2017.
BY THE COURT:

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

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