Smith v. Frame

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 2/13/2018 re 13 Amended Complaint. By 2/27/2018, Plaintiff to FILE a second amended complaint in accordance with this Order, or this action will be dismissed without prejudice. See Order for further details. (Attachments: # 1 Prisoner pro se complaint form and guide) (cc: all counsel, via mail to Virgil Smith at Waupun Correctional Institution)(jm)

Guide to Filing Prisoner Complaints
Without a Lawyer in The United States District Court for
the Eastern District of Wisconsin
Introduction
Welcome to the federal district court.
This Guide is intended to help you write and file a complaint. Follow these
steps and your litigation should run more smoothly.
The Guide comes with three attached documents:
(1) a blank complaint form;
(2) an optional blank application to proceed in court without
prepaying the filing fee; and
(3) examples of statements of a claim
If you are a prisoner filing a lawsuit under 42 U.S.C. § 1983, you must use
the attached complaint form. In addition, the examples of statements of a
claim may help you write your own claim.
Before you begin, consider whether your case belongs in federal court.
■ Federal district courts generally hear two types of cases:
(1) violations of federal law; and (2) violations of state law
where the parties are citizens of different states and the
amount at stake is more than $75,000.
■ Federal district courts do not review the decisions of
state courts. Do not sue in a federal district court just
because you are unhappy with the ruling of a state court.

Guide – 1

Note on the use of the prison’s grievance system:
Prisoners are generally required to submit their claims to the prison’s
grievance system before filing a federal suit about those claims. If you do
not complete the prison’s entire grievance process before filing suit, the
defendants may ask the court to dismiss your case for failure to exhaust
administrative remedies, and the court may do so.

Contents of Your Complaint
Cases in federal court start with the complaint, and so does this Guide. The
complaint is an important legal document. If you draft it correctly, it will
be short and will tell the Court and the defendants exactly how you believe
that your rights were violated.
What to put in your complaint:
Your complaint needs five things. These five parts correspond to the
five sections that you see in the form complaint.
A.

Caption and parties. Your complaint must begin with a “caption.”
The caption must include your name as the plaintiff and the names of
the people you are suing (the defendants). (If the defendants harmed
you while doing their jobs, tell the Court the name and address of the
employers, if known to you.) Do not fill in the case number on the
complaint. This will be done by the Clerk when you file your
complaint. From then on, you should put the case number on papers
that you file with the Court. This helps the Court keep all the papers
in each case together.

B.

Statement of Claim. The most important part of your complaint is
the “statement of your claim.” Describe briefly the exact problem that
you are complaining about. You should explain five things:

Guide – 2

(1)
(2)
(3)
(4)
(5)

Who violated your rights. Tell the name of each person who
injured you.
What each defendant did. Tell what action each defendant took
or failed to take that harmed you.
When they did it. Tell when each defendant harmed you.
Where they did it. Tell where each defendant harmed you.
Why they did it. If you know, tell the Court why each
defendant harmed you.

Explain the “who,” “what,” “when,” “where,” and “why” clearly and
simply. Tell the story as if you are telling it to someone who knows
nothing about what happened to you, but put only the important
facts in your statement of the claim.
A short and plain statement helps the judge to review your complaint
quickly and move on to the next step of your case. A long complaint
will take a judge longer to review and understand, and the judge
may tell you to rewrite it. This will delay your case.
You may find it helpful to look at the examples of statements of a
claim. Do not copy these examples or assume that the plaintiffs in
these examples would win their cases. The examples show you how
to write your claim, not what to say in your claim.
You may type or handwrite your complaint, so long as it is legible.
If you cannot finish your statement in the complaint form, you may
continue your statement of the claim on another sheet of paper.
C.

Why your case belongs in federal court (“Jurisdiction”). State why a
federal court can decide your case. There are two main possibilities:
(1) If your case involves a violation of federal law, a federal court
can decide your case, and you should check the first box on the
Guide – 3

form. This box refers to a federal statute, 28 U.S.C. § 1331, the law
that gives federal courts the power to decide cases involving the
violation of federal law.
(2) If your case involves only a violation of state law, you may be
able to check the second box. Generally, in order to check the
second box, all the defendants must be citizens of a state other
than the one of which you (and any other plaintiffs) are a citizen.
In addition, more than $75,000 must be in dispute.
D.

Relief Wanted. Your complaint should include a request for relief—
what you want from each defendant, such as money or some
particular action.

E.

Jury Demand. If you want to have your case decided by a jury, check
“Yes” in the box provided.

What NOT to put in your complaint:
DO NOT attach a lot of papers or long statements from witnesses. If you
want the judge to know about a fact, just write the fact in your
complaint. The complaint is not the place for proving facts. When the
judge needs proof, you will have a chance to submit it later.
DO NOT include lengthy quotations from statutes, laws, regulations, or
cases. If you want, you may simply list the statute, law, or regulation that
you believe the defendants violated. Later in the case, the defendants or the
judge may ask you to explain in more detail why you think that the
defendants have violated a law. You will then have an opportunity to
quote from statutes, laws, regulations, or cases.
DO NOT include unrelated claims against different defendants. You may
bring the same claim against more than one defendant only if all of the

Guide – 4

named defendants played some part in the same situation that resulted in
the alleged violation of your rights.

Filing Your Complaint
Filing Fee:
To file your complaint, you must pay a filing fee. The cost of filing a civil
action is $400.00, which includes the $350.00 filing fee and a $50.00
administrative fee. The full $400.00 must be paid at the time the action is
filed. Your check or money order should be made payable to the “Clerk of
Court.”
If you cannot afford the fee, you may ask the Court for permission to file
your complaint without prepaying the full fee. Use the form “Prisoner
Request to Proceed in District Court without Prepaying the Full Filing
Fee.” You must also submit a certified copy of your prisoner trust account
statement showing transactions for the six-month period immediately
preceding the filing of the complaint and showing the current balance of
your account. You should ask for this report from the jail or prison in
which you are housed. Note that if you have already filed three suits that a
court has dismissed, you may have lost your right to proceed without
prepaying the full filing fee.
Submitting Your Complaint:
The following institutions participate in the Court’s Prisoner E-Filing
Program: Dodge Correctional Institution, Green Bay Correctional
Institution, Waupun Correctional Institution, Wisconsin Secure Program
Facility, Columbia Correctional Institution, and Oshkosh Correctional
Institution. If you are incarcerated at one of the above institutions, submit
your original complaint and, if applicable, your Request to Proceed in
District Court without Prepaying the Full Filing Fee form to institution staff
for filing pursuant to the Court’s Prisoner E-Filing Program. All future
Guide – 5

filings with the Court must also be submitted to institution staff for
electronic filing, as long as you remain at one of these institutions.
If you are not incarcerated at one of the above institutions, mail (1) your
complaint and (2) your check or money order (if you can afford to prepay
the full filing fee) or your Request to Proceed in District Court without
Prepaying the Full Filing Fee and prisoner trust account statement to: Clerk
of Court, United States District Court for the Eastern District of Wisconsin,
517 East Wisconsin Avenue, Room 362, Milwaukee, WI 53202.
BE SURE to keep for yourself an exact copy of your complaint and any
other document you send to the Court.
DO NOT mail a copy of your complaint directly to any defendant.

Guide – 6

COMPLAINT
(for filers who are prisoners without lawyers)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

(Full name of plaintiff(s))

v.

Case Number:

(Full name of defendant(s))
(to be supplied by Clerk of Court)

A.

PARTIES
1.

Plaintiff is a citizen of

, and is located at
(State)

____________________________________________________________________
(Address of prison or jail)
(If more than one plaintiff is filing, use another piece of paper.)
2.

Defendant

__________________________________
(Name)
is (if a person or private corporation) a citizen of __________________________________
(State, if known)
Complaint – 1

and (if a person) resides at

__________
(Address, if known)

and (if the defendant harmed you while doing the defendant’s job)
worked for ___________________________________________________________________
(Employer’s name and address, if known)
(If you need to list more defendants, use another piece of paper.)
B.

STATEMENT OF CLAIM
On the space provided on the following pages, tell:
1.
Who violated your rights;
2.
What each defendant did;
3.
When they did it;
4.
Where it happened; and
5.
Why they did it, if you know.

Complaint – 2

Complaint – 3

C.

JURISDICTION

I am suing for a violation of federal law under 28 U.S.C. § 1331.
OR
I am suing under state law. The state citizenship of the plaintiff(s) is (are)
different from the state citizenship of every defendant, and the amount of
money at stake in this case (not counting interest and costs) is
$
_________.
D.

RELIEF WANTED
Describe what you want the Court to do if you win your lawsuit. Examples may
include an award of money or an order telling defendants to do something or to
stop doing something.

Complaint – 4

E.

JURY DEMAND
I want a jury to hear my case.
– YES

– NO

I declare under penalty of perjury that the foregoing is true and correct.
Complaint signed this

day of

20_____.

Respectfully Submitted,

Signature of Plaintiff

Plaintiff’s Prisoner ID Number

(Mailing Address of Plaintiff)
(If more than one plaintiff, use another piece of paper.)
REQUEST TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING THE
FULL FILING FEE
I DO request that I be allowed to file this complaint without paying the filing fee.
I have completed a Request to Proceed in District Court without Prepaying the
Full Filing Fee form and have attached it to the complaint.
I DO NOT request that I be allowed to file this complaint without prepaying the
filing fee under 28 U.S.C. § 1915, and I have included the full filing fee with this
complaint.

Complaint – 5

EXAMPLES OF STATEMENTS OF A CLAIM
Statement of Claim (Example 1)

Where

The plaintiff Peter Jackson is an inmate at Stateville Correction Center in

When

Joliet, Illinois. During lunch on July 15, 2013, an inmate threatened to stab
Who 1 and 2

Jackson. Jackson reported the threat to two guards, Tom Perez and John
Why it happened

What happened

White, but they ignored the threat because they wanted to retaliate against Jackson
What else happened

for filing an earlier grievance. The next day, the inmate stabbed Jackson in the
neck, causing profuse bleeding. Jackson went to the infirmary, where
Who 3

doctor Timothy Jones told him that stab wounds, if untreated, would likely
What else happened

get infected. Yet the Dr. Jones deliberately refused to treat Jackson, ignoring
Why it happened

the risk of infection for no reason. Jackson seeks damages from the
Gonzalez and White for ignoring the threat of injury and from the doctor
for refusing to treat him.

Sample Claims – 1

Statement of Claim (Example 2)

Where

Plaintiff Luther Jackson is an inmate at Stateville Correction Center in Joliet,
Who 1 and 2

Illinois. He suffers from asthma. Two guards, Hector Gonzalez and Bradley
When

White, knew that he is asthmatic. On January 15, 2014, they put him in a cell
What happened

with a broken window. The open window cooled the cell down to 20 degrees
Why it happened

Fahrenheit. Unconcerned with his well-being, the guards knew that by putting
What else happened

him in a cell with freezing-cold air healthy breathing would be difficult for
What else happened

Jackson. The two guards also knew that the cell had no running water, further
increasing the risk of infection. Because of these circumstances, Jackson
What else happened

contracted pneumonia and was hospitalized for two weeks for which he seeks
damages.

Sample Claims – 2

Statement of Claim (Example 3)
Where

Plaintiff Manny Jackson is an inmate at the Wisconsin Secure Program
Facility in Boscobel, Wisconsin. He possessed two items, a newspaper article

When

and diary, both of which criticize the warden. On August 10, 2013, two
Who 1 and 2

What happened

guards, Hector Gonzalez and Bradley White, took these items from his cell and
What else happened

charged him with violating a rule of the Wisconsin Department of
Corrections that prohibits inmate “insubordination.” The Department’s
Who 3

Why it happened

Secretary, Ed Smith, requires that guards enforce this rule. A prison
disciplinary board found Jackson guilty of insubordination because he
What else happened

possessed these two items. It punished him with three weeks’ segregation.
Who 4

Two months later, Warden Timothy Jones approved the board’s discipline
What else happened

and authorized the segregation.
Jackson wants the guilty finding and punishment overturned, his items
returned to him, damages for the time that he spent in segregation, and a
ruling that prohibits the Department from banning written criticisms of the
warden.

Sample Claims – 3

Statement of Claim (Example 4)

Where

The plaintiff Guy Johnson is an inmate at Stateville Correction Center in Joliet,
Illinois. As he was working at his regular job in the prison library on
Who

When

February 18, 2014, Brian Whelan, a prison guard, approached him and
What happened

accused him of stealing a prison book. When Johnson denied the accusation,
What else happened

Whelan put Johnson into a choke-hold, kicked him in the groin several times,
and shoved him into a table where he cut his head and lost consciousness.
Why it happened

Whelan said he did this because Johnson was disrespecting a prison guard
Johnson seeks damages from Whelan for the use of unnecessary and
excessive force and compensation for his injuries.

Sample Claims – 4