Castellano v. Mahin et al

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 5/30/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff to file amended pleading curing the defects in his original complaint by 6/20/2017. Agency having custody of plaintiff to collect balance of filing fee from his prison trust account. See Order. (cc: all counsel, via mail to John J. Castellano and Warden at Racine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN J. CASTELLANO,
Plaintiff,

v.

REBECCA MAHIN and WISCONSIN
DEPARTMENT OF CORRECTIONS
DIVISION OF COMMUNITY
CORRECTIONS,

Case No. 17-CV-598-JPS

ORDER

Defendants.
Plaintiff John J. Castellano, who is incarcerated at Racine
Correctional Institution, proceeds in this matter pro se. He filed a complaint
alleging that the defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff’s petition to proceed without
prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $1.35. See 28 U.S.C. §
1915(b)(1).
The court shall 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.
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997). 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. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers mere “labels and conclusions” or a “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’s allegations
“must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
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
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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. Section 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)).
Plaintiff’s submissions total over three-hundred pages, including an
eighty-one page complaint. See (Docket #1 and #9). The general tenor of the
complaint is twofold: 1) Plaintiff believes that he was defamed by a
psychiatrist involved in his sex offender rehabilitation program, leading to
his probation revocation carried through by Defendant Rebecca Mahin
(“Mahin”), and 2) Plaintiff does not like repercussions of his conditions of
probation and his status as a sex offender. See generally (Docket #1). Though
Mahin is the only individual defendant named, his allegations seem to find
fault with the actions of many others, including those employed by the
entity defendant, the Wisconsin Department of Corrections. Id. The precise
scope of his claims is not helpfully clarified by the “relief requested” portion
either; most of the desired relief comes from persons not named as

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defendants. See id. at 63-78. Much of the complaint wastes space with
repetitive statements of similar allegations. See generally id.
This is not the first time Plaintiff has advanced these concerns. In
September 2016, he filed an extremely similar complaint. See Castellano v.
Spotts, 16-CV-1248-JPS, (Docket #1). In reviewing the initial and amended
complaints in that case, the Court repeatedly informed Plaintiff that his
claims included far too many unrelated defendants and that many of the
claims he attempts to advance here are not viable. See id. at (Docket #10, #12,
and #14). He appears to be aware of these rules, as he cites those orders in
the instant complaint, though he has largely ignored them.
Plaintiff’s current complaint is not viable for two reasons. First, if
Plaintiff seeks to assert claims against the many persons named in the
complaint, though not identified as defendants, it violates the George
principle. Namely, 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 thirdparty 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.
Second and more importantly, Plaintiff’s complaint violates another
pleading rule, FRCP 8. This Rule states that a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). Courts must enforce this
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Rule when complaints are so long that they become unintelligible, thereby
failing to give the defendants fair notice of claims asserted against them.
Lindell v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003); Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011). As noted above, Plaintiff complaint is neither
short nor plain, including wide-ranging allegations include many other
beyond the named Defendants.
The Court will permit Plaintiff the opportunity to correct these
deficiencies in his pleading. If he chooses to offer an amended complaint,
Plaintiff must do so no later than June 20, 2017. 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. Miami-Dade 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,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee (in forma pauperis) (Docket #2) be and
the same is hereby GRANTED;

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IT IS FURTHER ORDERED that on or before June 20, 2017, the
plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
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 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. If the
plaintiff is transferred to another institution, county, state, or federal, 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
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. It will only delay the processing of the 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.
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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 30th day of May, 2017.
BY THE COURT:

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

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