Jackson v. Kuepper et al
ORDER signed by Judge Lynn Adelman on 03/13/2018. IT IS ORDERED that plaintiffs motion for leave to proceed without prepayment of the filing fee 2 is GRANTED. FURTHER ORDERED that plaintiffs motion to appoint counsel 4 is DENIED. ALSO ORDERED tha t plaintiffs motion to allow use of release account fund 9 is DENIED. IT IS ORDERED that on or before April 7, 2018, plaintiff shall file an amended pleading curing the defects in the original complaint as described herein. ORDERED that the agency having custody of plaintiff shall collect from his institution trust account the $349.03 balance of the filing fee by collecting monthly payments from plaintiff's prison trust account. ORDERED that a copy of this order be sent to the officer in charge of the agency where plaintiff is confined. (cc: all counsel, Plaintiff, Warden) (lls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LONNIE L. JACKSON,
Case No. 17-C-0627
CO II OFFICER KUEPPER, et al.,
DECISION AND ORDER
Plaintiff Lonnie L. Jackson is a pro se transgender Wisconsin state prisoner who
identifies as female. She filed this action under 42 U.S.C. § 1983 alleging that
defendants violated her constitutional rights. (Docket No. 1.) Plaintiff has moved for
leave to proceed without prepayment of the filing fee (in forma pauperis) (Docket No. 2),
to appoint counsel (Docket No. 4), and to allow the use of her release account for
copies, postage, and other litigation expenses for this lawsuit (Docket No. 9). This order
screens plaintiff’s complaint and resolves her motions.
I. Motion for Leave to Proceed Without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff
was incarcerated when she filed her complaint. 28 U.S.C. § 1915. The PLRA allows a
court to give an incarcerated plaintiff the ability to proceed with her lawsuit without
prepaying the case filing fee, as long as she meets certain conditions. One of those
conditions is that plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b).
Plaintiff has been assessed and paid an initial partial filing fee of $.97. See 28
U.S.C. § 1915(b)(1). Therefore, I will grant her motion to proceed without prepayment of
the filing fee.
II. Screening Plaintiff’s Complaint
I am 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). I 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).
To state a cognizable claim under the federal notice pleading system, plaintiff is
required to provide a “short and plain statement of the claim showing that [she] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for plaintiff to plead specific
facts and her 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)). 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  plaintiff pleads factual content that allows
the court to draw the reasonable inference that  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
In considering whether a complaint states a claim, I 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)
she was deprived of a right secured by the Constitution or laws of the United States;
and 2) the deprivation was by defendants acting under color of state law. BuchananMoore 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). I am 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)).
A. Complaint’s Allegations1
At all times relevant to this complaint, plaintiff was an inmate at Oshkosh
Correctional Institution (OCI). Defendants Range Correctional Officer II Officer Kuepper,
Sergeant Keller, Lieutenant Norman, Center Director Chris Kunchinski,2 Deputy Warden
Plaintiff asserts an interaction with “defendant Zanon” regarding her medical ice bag
incident, but Zanon is not a named defendant.
Plaintiff spells this defendant’s name as “Kuchinski” in other places in her complaint.
Robert Hable, Warden Judy Smith, Captain Haas Kuster,3 Correctional Officer III
Sergeant West, and Inmate Complaint Examiner Teresa Murphy were employed at OCI.
Defendants Secretary Jon Litscher, Former Secretary Edward Wall, and Deputy
Secretary Cathy Jess were employed at the Department of Corrections (DOC).
Defendant Administrator James R. Schwochert was employed at the DOC’s Division of
Adult Institutions (DAI).
1. Industrialized Hand Soap in Plaintiff’s Medical Ice Bag
Plaintiff alleges the following facts. On April 25, 2017, plaintiff asked defendant
Kuepper to fill her medical ice bag with ice in accordance with her medical restriction. At
the time, OCI used dark blue bags for their medical bags. Docket No. 1 ¶ 12. Defendant
Kuepper took the bag and returned it to plaintiff half full of ice. Plaintiff placed the bag
on her back and went to sleep.
By about 3:00 a.m., the ice in the bag had melted, and plaintiff was awakened by
its leaking contents. She removed the bag from her bed. And because she was thirsty,
she drank some of its contents and then went back to sleep.
Moments later, plaintiff began feeling pains in her stomach, lightheaded, dizzy,
and “quizzy.” Docket No. 1 ¶ 4. She vomited twice. After which she noticed “a great deal
of ‘bubbles’ in the toilet water.” Id. She reviewed the medical ice bag contents and
surmised that the bag contained “industrial hand sanitizing hand soap” (soap), a product
used throughout the institution for cleaning. Id.
Plaintiff spells this defendant’s name as “Bass Kuster” and as “Hass Kuster” in other
places in her complaint.
Plaintiff spoke with a third shift range officer about what had happened and
asked him if the use of soap in medical ice bags was a practice. Docket No. 1 ¶ 5. The
range officer said that it was common practice to use salt and pepper in medical ice
bags to prevent abuse but not soap or any other products. The range officer also stated
that the officer is supposed to inform the inmate of any additives he may have put in the
bag prior to giving it to the inmate.
Plaintiff knew that using the medical ice bag for purposes other than prescribed is
a prison violation that could result in the cessation of her use. She, however, did not
know that drinking the melted ice—thus after having used the medical ice bag for its
intended purpose—was a purported violation as well. According to plaintiff, nothing in
the DOC policies or the Bureau of Health Services Operational Manual makes this kind
of restriction known to an inmate who is issued a medical ice bag.
After the range officer left plaintiff’s cell, plaintiff vomited once more and then
informed the housing sergeant of what had happened and how she was not told that
soap had been put into her medical ice bag. Plaintiff asked the sergeant to inform the
health services unit (HSU) right away. He did, and he also wrote an incident report for
the matter but did not identify the range officer with whom plaintiff initially spoke.
At about 6:30 a.m., plaintiff was evaluated by medical staff, including Registered
Nurse Cory (not a defendant). Cory explained to plaintiff that he had contacted poison
control regarding plaintiff’s ingestion of the soap and was told that plaintiff would simply
have to let the soap pass through her system. There was nothing else that could be
done. Cory told plaintiff that she would be sick for three to seven days but that she was
to let the HSU know if her symptoms worsened or if she became very ill so that they
could provide further treatment.
At the time, plaintiff was taking “feminizing hormones,” “psychotropic medication,”
high blood pressure medication, diabetic medication, and pain medication, and so she
asked Cory about the effects the soap ingestion would have. Docket No. 1 ¶ 32. Cory
stated he would monitor plaintiff’s progress. Plaintiff was returned to her cell.
Later that day, defendant Kuepper came to plaintiff’s cell smiling and laughing.
He asked plaintiff whether she drank from the medical bag. When plaintiff responded
yes, defendant Kuepper admitted to putting the soap in plaintiff’s medical bag. After
plaintiff told defendant Kuepper that she had gotten very sick from it, defendant Kuepper
responded “oh well, you should not have drunk the water from the medical bag.” Docket
No. 1 ¶ 10. Plaintiff asked defendant Kuepper why he did not tell her about the soap.
Defendant Kuepper responded that he did not have to tell plaintiff anything and that he
is allowed to put whatever he wants in the medical ice bags to prevent abuse of the
privilege. Plaintiff asserted that under the DOC policy and Wisconsin law she had a right
to know what was in the medical bag. Defendant Kuepper again stated that he did not
have to tell her anything and that plaintiff would find out when she drank it. He also
stated that if he really wanted to poison plaintiff, “[he] would have used ‘rat poison.’” Id.
Defendant Kuepper further asserted that it was just soap and that plaintiff was making a
big deal out of it.
Plaintiff notes that at no time did defendant Kuepper tell his supervisors that he
witnessed plaintiff abusing her medical ice bag privilege and no other staff had informed
defendant Kuepper that plaintiff had been caught abusing her medical ice bag privilege.
Plaintiff states that defendant Kuepper caused her injury and suffering because she is
African American and transgender. She asserts that defendant Kuepper made it known
that he dislikes African Americans and transgender people. He sees African Americans
as "drug dealers poisoning his community,” and he dislikes transgender people because
they want to be the opposite sex but are not. Docket No. 1 ¶ 33.
Plaintiff subsequently wrote a formal complaint to defendant Smith seeking to file
criminal charges against defendant Kuepper regarding the incident. She also filed an
Plaintiff received a memorandum from defendant Smith about the formal
complaint. It told plaintiff that the warden’s “office will take no further action on the issue
because  plaintiff filed an inmate complaint, citing that it would be inappropriate for her
to discuss the matter outside of the ICRS system.” Docket No. 1 ¶ 13.
After her inmate complaint investigation got underway, defendant Murphy
informed plaintiff that her complaint would “probably be dismissed pursuant to DOC
Executive Directive 16 ‘Confidentiality Reasons.’” Docket No. 1 ¶ 12. The complaint was
dismissed due to “confidentiality policy protecting DOC staff.” Id.
The blue medical ice bags were subsequently changed to clear. Also, defendant
Kuepper left the institution for a sergeant position at another unknown institution.
In May 2015, plaintiff filed a formal complaint with defendant Wall requesting a
full investigation regarding “plaintiff’s poisoning.” Docket No. 1 ¶ 14. Defendant Wall did
not take any action.
In June 2015, plaintiff wrote a letter to defendant Jess explaining the incident and
requesting to press charges against defendant Kuepper for assault. Plaintiff received no
response from defendant Jess’s office.
Plaintiff also sent a letter regarding the incident to each of the following agencies:
Oshkosh District Attorney's Office, Oshkosh Sheriff Department, and Oshkosh Police
Department. In those letters, plaintiff requested a criminal Investigation and to be
interviewed for possible criminal charges against defendant Kuepper.
On August 19, 2015, Detective Paul Frey (not a defendant) came to the
institution to see plaintiff and conducted a criminal interview. Frey told plaintiff that his
office would get back in touch with her once the investigation was completed. He asked
plaintiff to send him any documentation she had relating to the incident. Plaintiff
complied. Weeks later, Plaintiff received a letter from Frey stating that the matter was
investigated but the Deputy District Attorney Scott A. Ceman (not a defendant) decided
not to file criminal charges.4
On September 2, 2015, the Corrections Complaint Examiner Deputy Secretary
Morgan (not a defendant) issued a decision regarding plaintiff’s complaint directing the
OCI to place it on the "prioritized investigation list" citing that the institution failed to
follow the DOC policies. Docket No. 1 ¶ 18. However, according to plaintiff, the
correctional officers continued to put dangerous chemicals in inmates’ medical ice bags.
Plaintiff provides an example of Ceman’s history of refusing to file criminal charges
against correctional staff unless the institution's complaint department makes a formal
request to the warden of that institution for criminal charges to be filed. Docket No. 1
¶ 15. Plaintiff also discusses a conversation she had with OCI’s Lead investigator
Captain Tony (not a defendant), who affirmed this practice. Id.
Morgan also recommended that plaintiff’s complaint against defendant Kuepper be
dismissed “as standard practice of complaints against institutional staff.” Id.
On September 15, 2015, plaintiff spoke with defendant Murphy about the practice
of allowing officers to put dangerous chemicals into medical ice bags. Defendant
Murphy said that there is no such policy that allows for that to happen but that if the act
occurs then the officer can be liable for any injury sustained by the inmates. She stated
that correctional staff are allowed to use products like "salt or pepper'' as preventive
measures, so as long as the inmates do not suffer from any allergies relating to pepper.
Defendant Murphy also said that the officers still have to consult with medical staff
before placing this kind of substance into the medical ice bag. But defendant Murphy
further added that inmates need not be told that they cannot drink out of the medical ice
bags. She said it should be "common sense.” Docket No. 1 ¶ 20.
In November 2015, while plaintiff was being seen for her scheduled diabetic
insulin appointments, she asked the HSU staff about whether officers can place
substances in medical bags. The staff explained that the use of any chemical in medical
ice bags other than ice is prohibited. If abuse of medical ice bags is suspected, the
officer is instructed to call the HSU and let the HSU deal with the matter. The staff
further noted that there is no written policy instructing inmates on what to do with the
melted ice from the medical ice bag.
Also in November 2015, plaintiff spoke with Housing Unit Supervisor Jenny
Delvaux5 (not a defendant) about whether there is an OCI policy authorizing the use of
Plaintiff refers to Jenny Delvaux as the “housing unit director” in other places in her
soap in medical ice bags. Delvaux stated that to her knowledge there is no such policy
but was generally unsure as to whether such a policy existed. She stated, however, that
she did not understand why it was so important for the inmates not to drink the water
that was left from the melted ice. During a conversation with Delvaux later that same
month, Delvaux stated that it would be "dumb" for an officer to use soap on an inmate
because the officer would not know the inmate’s overall health condition to make a
dangerous decision. Docket No. 1 ¶ 38. Delvaux stated that the officers she spoke with
said that they would never use soap in a medical ice bag.
At some point, plaintiff met with defendant Hable about the use of soap in
medical ice bags. Hable supported its use. He stated that it was a practice and custom
to curtail medical ice abuse and that the product does no harm to inmates. When
plaintiff informed Hable of the ill effects she suffered from the soap, Hable replied, "then
I guess you will not drink the water again would you Mr. Jackson." Docket No. 1 ¶ 41.
At some point, plaintiff also spoke with defendant Kuster about her medical ice
bag incident. Defendant Kuster stated that he was not stopping the practice in the
segregation unit. He further said that training the staff on handling medical ice bags was
not his area but the HSU’s. He said “his job [was to] deal with security." Docket No. 1 ¶
34. He further stated, "I train my staff the way they are to be trained, and [plaintiff has]
no input into how that's done." Id.
Plaintiff’s other alleged facts regarding the medical ice bag are conflicting and
murky, at best. She asserts generally that she spoke with defendants, and they refused
to stop the use of dangerous cleaning products in medical ice bags. She states that the
defendants see nothing wrong with the methodology and that if plaintiff does not drink
the medical ice bag contents then she has nothing to worry about. Plaintiff says that the
defendants claim the practice is to teach plaintiff a lesson regarding following the rules.
Plaintiff then states that at some point, she was told that it was not the policy of
the segregation housing unit to allow officers to put whatever they chose into medical
ice bags and that defendant Kuepper did not have verbal or written authority to do what
he did. But since “they were not there, there was nothing that could be done to correct
the matter.” Docket No. 1 ¶ 34.
Plaintiff alleges that defendants are hiding behind the DOC policy of
"Confidentiality" for not doing anything to stop the practice of harming inmates. Docket
No. 1 ¶ 43. She states that they use the terms "in the interest of institutional security"
and "need to know basis" to keep from sharing information regarding the investigation.
Id. Plaintiff alleges that “every one of these defendants neglected their responsibility”
and failed to address “a serious problem that caused plaintiff to be both harmed and
injured.” Docket No. 1 ¶ 43.
Plaintiff further states that all of the administrators could have stopped the abuse
that she was receiving but failed to do so because of what is known throughout the
prison community as a "Code of Silence" among Correctional Staff of the Department of
Corrections. Id. No officer is held accountable for their actions, even if it does cross the
line into criminal activities.
2. All Defendants’ Gender Discrimination
Plaintiff alleges that all of defendants, with the exception of defendants Jess,
Schwochert, and Wall, treated plaintiff differently because she is transgender. Docket
No. 1 ¶ 21. They were all fully aware that plaintiff is transgender, and plaintiff had been
housed on the P-Building Housing unit—the transgender unit—since she had come to
3. Defendant West’s Race Discrimination
Plaintiff alleges that defendant West, who is Caucasian, treated her differently
because she is African American. Defendant West was on staff in the P-Building, and at
that time, the P-Building housed mostly white transgender inmates.
Defendant West made it known to others that she disliked African Americans.
She refused to deal with African American inmates. She would turn her back and walk
away from those inmates without saying a word. Defendant West would not address
African American inmates’ concerns and delegated those duties to other officers.
Plaintiff relayed this disparate treatment to defendant Kunchinski, who is also
Caucasian. He said he would speak to defendant West about this treatment because it
is not allowed in his unit. But defendant West continued to deal with African American
inmates in the same manner.
At some point, plaintiff caused a disruption concerning a mix up of her special
diet from the HSU. The confrontation purportedly involved defendant West. In response
to that disruption, plaintiff was put into segregation housing.
After plaintiff completed her time in segregation, defendant West had her placed
in W-Building, which is a general population unit that did not have any transgender
inmates at the time of plaintiff’s placement. Defendant Kunchinski’s response to
plaintiff’s query regarding her move from P-Building to W-Building was that "the staff is
afraid of you because they feel that you'll sue them and one way to get past this, be
quiet, and don't complain a lot, just do your time, and leave, and stop suing correctional
staff." Docket No. 1 ¶ 21. He further explained that defendant “West  does not like you,
and she is afraid of you." Docket No. 1 ¶ 23. When plaintiff asked defendant Kunchinski
what plaintiff had done to defendant West, he stated that defendant "West told him that
the last time plaintiff was on her unit, [plaintiff] assaulted [defendant] West by way of
‘shoulder checking her in an aggressive manner.’” Id. Defendant West then felt
threatened by plaintiff. Plaintiff asserted that she never touched defendant West and
that defendant West was lying. Plaintiff also asked why defendant West did not report
the alleged assault to the supervisor. Defendant Kunchinski stated that he did not know
why defendant West refused to report the alleged assault, but in any event plaintiff was
not allowed back on the unit. Plaintiff was moved to W-Building in May 2015.
Plaintiff went to Delvaux, the housing unit supervisor, and made a request that
she be sent back to the P-Building. Delvaux asked plaintiff why she wanted to be
transferred back to that unit. Plaintiff told Delvaux what defendant Kunchinski said
regarding defendant West. Delvaux said she would speak to Kunchinski about the
matter and see what she could do to get plaintiff back to P-Building.
On July 1, 2015, plaintiff was transferred back to P-Building. Plaintiff was later
warned by defendant Kunchinski “to stay clear” of defendant West because she was not
happy plaintiff had returned to the unit. Docket No. 1 ¶ 24.
Plaintiff filed an inmate complaint alleging both racial and gender discrimination
against defendant West. Plaintiff’s complaint was rejected by defendant Murphy.
Defendant Murphy found nothing was wrong with plaintiff’s treatment on the unit.
While plaintiff was in P-Building, she stayed in her cell fearful that defendant
West was out to make trouble for her. Whenever defendant West wanted to tell plaintiff
to do something, she would scream plaintiff’s name, an action defendant West did not
do to the other inmates. When plaintiff was outside of her cell, defendant West closely
watched plaintiff. She also did not address plaintiff with gender neutral names in
accordance with DAI guidelines regarding transgender inmates. Plaintiff reported this to
defendant Kunchinski, who told plaintiff that he would have a talk with defendant West.
But he also said that because plaintiff was in a male institution neither he nor the
administration can make the staff comply with the new policies. Defendant Kunchinski
further stated that it is not mandatory for the staff to address the inmate with gender
Nevertheless, because of her fear of being retaliated against and further
harassed by defendant West, plaintiff limited her contact with defendant West by
refusing to take her prescribed medication.
Sometime during the month of October 2015, defendant Kunchinski told plaintiff
that she was again being moved to W-Building at the request of defendant West. The
reason for the move was that defendant West was afraid of plaintiff. That fear was again
based on the incident regarding plaintiff’s alleged assault of defendant West. Plaintiff
again told defendant Kunchinski that the alleged assault never happened. Defendant
Kunchinski agreed but told plaintiff that it was his job to make his staff happy.
Plaintiff was moved to W-Building on October 14, 2015. Two days later, plaintiff
was moved back to the P-Building by Delvaux. When defendant West saw plaintiff was
back, she became very angry. She went to defendant Kunchinski and demanded that
plaintiff be sent back to W-Building so that all of the transgender inmates were no longer
housed on her unit.
Later when plaintiff met with defendant Kunchinski, he stated he had no problem
with her, but that defendant West did not want her there because she feared for her
safety. Notwithstanding plaintiff’s repeated assertion that she did not harm defendant
West and the fact that Delvaux—a person in authority over defendant Kunchinski—had
moved plaintiff back to P-Building, defendant Kunchinski stated he would move plaintiff
back to W-Building. Defendant Kunchinski said that the move would not only be
because of defendant West’s claim of fear but also because of plaintiff’s poor behavior.
Plaintiff, however, had not gotten into trouble on the unit and did not have any write-ups
from other staff.
On October 30, 2015, Defendant Kunchinski again made plaintiff relinquish her
job on the unit and moved her back to W-Building.
Because plaintiff was the only transgender inmate in W-Building, maintenance
installed a “false shower setup” on the unit so the plaintiff could shower. Docket No. 1
¶ 30. The plaintiff, however, was only allowed to shower once a day, either between
5:30 a.m. to 6:00 a.m. or 10:00 p.m. to 10:30 p.m. She was not allowed to shower at the
same time as the other transgender inmates in the institution, who were allowed to
shower either between 2:15 p.m. to 2:45 p.m. or 10:00 p.m. to 10:30 p.m.
Ultimately, plaintiff was subjected to Delvaux and defendant Kunchinski’s
housing rotation plan where plaintiff was moved back and forth from P-Building to WBuilding every 90 days. This was to ensure plaintiff would not “get on the other staff[‘s]
nerves.” Docket No. 1 ¶ 30.
Delvaux and defendant Kunchinski consider plaintiff a "Jailhouse Lawyer," and
plaintiff is being targeted because of what she knows about the DOC's polices, rules
and regulations. Id. Plaintiff asserts that she is also being targeted because she is
outspoken about those who infringe on her constitutional rights and liberties.
Plaintiff seeks declaratory and injunctive relief as well as compensatory and
B. Court’s Analysis
Based on these allegations, plaintiff is attempting to improperly bring unrelated
claims in a single case. The Seventh Circuit instructs that under the controlling principle
of Rule 18(a) of Federal Rules of Civil Procedure “[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, Rule 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.”
Fed. R. Civ. P. 18(a). 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 of the
Federal Rules of Civil Procedure, applies as much to prisoner cases as it does to any
other case. Id. Under Rule 20, joinder of multiple defendants into one action is proper
only if “they assert any right to relief 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.” Fed. R. Civ. P. 20.
I find that the complaint violates both Rules because it advances at most two
unrelated claims against multiple defendants. Plaintiff’s primary claim seems to be an
Eighth Amendment claim of deliberate indifference against defendant Kuepper for his
alleged act of putting soap in her medical ice bag. Plaintiff seems to assert the same
claim against the other defendants. Yet, she does not allege any facts regarding the
other defendants’ personal involvement in the medical ice bag incident, which is a
requirement for stating a claim under section 1983. Morfin v. City of East Chicago, 349
F.3d 989, 1001 (7th Cir. 2003). Plaintiff then seems to insert a second constitutional
claim of a violation of her Fourteenth Amendment equal protection rights against
defendants West and Kunchinski and another individual that is not a named defendant,
Delvaux. This claim is based on defendant West’s alleged discriminatory acts against
plaintiff that were purportedly condoned and facilitated by defendant Kunchinski and
As instructed by the George court, such “buckshot complaints” should be
“rejected.” Id. Plaintiff will be allowed to file an amended complaint incorporating only
properly related claims. Such amended complaint must be filed on or before April 12,
Failure to file an amended complaint within this time period may result in
dismissal of this action. Any unrelated claim not pursued in this case may be brought in
a separate action.
Plaintiff is further advised that because an amended complaint supersedes a
prior complaint, any matters not set forth in the amended complaint are, in effect,
withdrawn. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d
1054, 1056 (7th Cir. 1998). The amended complaint must bear the docket number
assigned to this case and must be labeled “Amended Complaint.” If plaintiff files an
amended complaint, it will become the operative complaint in this action, and I will
screen it in accordance with 28 U.S.C. § 1915A.
I also advise plaintiff that 42 U.S.C. § 1983 “creates a cause of action based on
personal liability and predicated upon fault; thus liability does not attach unless the
individual defendant caused or participated in a constitutional violation.” Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996). Additionally, the doctrine of respondeat
superior (supervisory liability) does not apply to actions filed under 42 U.S.C. § 1983.
See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). Indeed, section 1983 does not
create collective or vicarious responsibility. Id. Thus, with respect to any claim or claims
advanced in plaintiff’s amended complaint, she must identify the individual defendants
and specify the manner in which their actions, or failure to take action, violated her
III. Motion to Appoint Counsel
In her motion to appoint counsel, plaintiff asserts that she is unable to sufficiently
litigate her case because her incarceration limits her access to the internet and the
number of medical claims against each defendant along with the number of defendants
makes this case factually complex. Plaintiff also states that the anticipation of conflicting
opinions and facts and her limited knowledge of the law warrant the appointment of
counsel. Plaintiff asserts that counsel would also be able to secure information outside
the prison such as scientific data with regard to her case.
In a civil case, I have discretion to decide whether to recruit a lawyer for
someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013);
28 U.S.C § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th
Cir. 2013). First, however, the person has to make a reasonable effort to hire private
counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). After that
person makes a reasonable attempt to hire counsel, I then must decide “whether the
difficulty of the case – factually and legally – exceeds the particular plaintiff’s capacity as
a layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at
655). To decide that, I look, not only at the plaintiff’s ability to try her case, but also at
her ability to perform other “tasks that normally attend litigation,” such as “evidence
gathering” and “preparing and responding to motions.” Id.
Here, plaintiff does not state that she attempted to find an attorney on her own.
She does attach three letters to her motion that appear to evince her attempts to secure
one. Notwithstanding the lack of clarity on this issue, I will deny plaintiff’s request to
appoint counsel for the following two reasons. First, plaintiff has been allowed to amend
her complaint. So the complexity of this matter as well as the number of defendants has
yet to be determined. Second, plaintiff asserts in her complaint that “she knows about
the DOC’s polices, rules and regulations” and alleges a clear understanding of her
constitutional rights. Docket No. 1 ¶ 30. Therefore, plaintiff is competent to amend her
complaint without the assistance of counsel. I will deny without prejudice plaintiff’s
motion to appoint counsel.
IV. Motion to Allow Use of Release Account
Plaintiff has also moved to be allowed used of release account funds to pay for
copies, postage, and other legal expenses. She states that she has depleted all of the
legal loans available to her, and the use of her release account funds will allow her to
finance this case.
I will deny plaintiff's motion. There is no federal law permitting me to require state
officials to allow prisoners use of release account funds for litigation costs. Although the
Prison Litigation Reform Act permits me to order an institution to access a prisoner's
release account to pay an initial partial filing fee, such fees are required to proceed with
the case. See, e.g., Mosby v. Wommack, No. 08-cv-677, 2009 WL 2488011 (W.D. Wis.
Aug. 12, 2009) ("[W]ith the exception of initial partial payments, [federal district courts]
do not have the authority to tell state officials whether and to what extent a prisoner
should be able to withdraw money from his release account."); see also Artis v. Meisner,
No. 12-cv-589, 2015 WL 5749785, at *5-6 (W.D. Wis. Sept. 30, 2015) ("Absent some
authority requiring the prison to disburse [petitioner's] release account funds, the court
declines to interfere in the administration of Wisconsin state prisons . . . ." (emphasis in
original)). I will not undermine the intent behind the concept of the prisoner release
account by allowing the plaintiff to access the release account to fund litigation costs.
See Wis. Adm. Code. § DOC 309.466 (stating that disbursements from a prisoner's
release account are authorized "for purposes that will aid the inmate's reintegration into
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Docket No. 2) is GRANTED.
IT IS FURTHER ORDER that plaintiff’s motion to appoint counsel (Docket No. 4)
IT IS ALSO ORDERED that plaintiff’s motion to allow use of release account
fund (Docket No. 9) is DENIED.
IT IS FURTHER ORDERED that on or before April 7, 2018, 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 plaintiff shall
collect from his institution trust account the $349.03 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 plaintiff’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, 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 ALSO ORDERED that a copy of this order be sent to the officer in charge
of the agency where plaintiff is confined.
IT IS FURTHER ORDERED that 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.
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 13th day of March, 2018.
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