Phoneprasith et al v. Clarke

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 8/16/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING 8 and 10 Plaintiff's Motions for Leave to Amend Complaint; and ORDERING Plainti ff to file Amended Complaint by 9/6/2017. Agency having custody of Plaintiff to COLLECT balance of filing fee from Plaintiff's prison trust account. See Order. (cc: all counsel, via mail to Robert Phoneprasith and Warden at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT PHONEPRASITH and A.P.,
Plaintiffs,

v.

Case No. 17-CV-970-JPS

DAVID A. CLARKE, JR.,
Defendant.

ORDER

Plaintiff Robert Phoneprasith, who is incarcerated at Dodge
Correctional Institution, proceeds in this matter pro se. He filed a complaint
alleging that Defendant 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 $23.78. 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
assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
supported by factual allegations. Id. If there are well-pleaded factual
Page 2 of 6

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 complaint presents claims regarding denial of visitation
for his child and inadequate law library access while he was incarcerated in
the Milwaukee County Jail. See generally (Docket #1). Without addressing
the merits of the claims, two initial problems are apparent. First, Plaintiff
has named his daughter, A.P., as a co-plaintiff. The Court has used her
initials because it is not clear whether she is a minor. Even if she were an
adult, A.P. did not sign the complaint, and thus cannot be a plaintiff in this
action. See Fed. R. Civ. P. 11(a). Second, since the filing of his complaint,
Plaintiff has offered motions to amend or supplement his pleading. (Docket
#8 and #10). Piecemeal amendments to a pleading are not permitted;
Plaintiff’s complaint must be contained in one complete document. The
motions will be denied.
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 September 6, 2017. The amended
Page 3 of 6

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;
IT IS FURTHER ORDERED that on or before September 6, 2017,
the plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that Plaintiff’s motions for leave to
amend the complaint (Docket #8 and #10) be and the same are hereby
DENIED;
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
Page 4 of 6

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, 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. If the
plaintiff is no longer incarcerated at a Prisoner E-Filing institution, 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
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.
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.

Page 5 of 6

Dated at Milwaukee, Wisconsin, this 16th day of August, 2017.
BY THE COURT:

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

Page 6 of 6