Eubanks v. Foster et al

Filing 12

ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. IT IS FURTHER ORDERED that 9 Motion for Leave to Amend the Complaint is GRANTED. The Clerk of Cou rt's office shall substitute defendant Capt. Theander for defendant Supervisor John Doe. IT IS FURTHER ORDERED that the plaintiff file an amended complaint on or before July 27, 2018, which contains only related claims as described in this Order . IT IS FURTHER ORDERED that the clerk of court's office mail the plaintiff a prisoner complaint form along with order. IT IS FURTHER ORDERED that if the plaintiff does not file an amended complaint by July 27, 2018, that complies with the requirements of Rules 18 and 20, Federal Rules of Civil Procedure, this action may be dismissed for failure to prosecute. (cc: all counsel, via US mail to Plaintiff with complaint form, Warden at Waupun) (blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN EUBANKS,
Plaintiff,
v.

Case No. 18-CV-663

BRIAN FOSTER,
CO J. DORN,
GWENDOLYN VICK,
CO POHL, AND
CAPT. THEANDER1,
Defendants.
SCREENING ORDER
Shawn Eubanks, a state prisoner who is representing himself, filed a complaint under
42 U.S.C. § 1983, alleging that the defendants violated his civil rights. This matter is before
me on Eubanks’ motion for leave to proceed without prepayment of the filing fee and for
screening of his complaint.
MOTION ON FILING FEE
The Prison Litigation Reform Act applies to this case because Eubanks was
incarcerated when he filed his complaint. 28 U.S.C. § 1915. That law allows a court to give
an incarcerated plaintiff the ability to proceed with his case without prepaying the civil case
filing fee, as long as he meets certain conditions. One of those conditions is that Eubanks
pay an initial partial filing fee. 28 U.S.C. § 1915(b). Once Eubanks pays the initial partial
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In the complaint, Eubanks named Supervisor John Doe as a defendant. Eubanks subsequently filed a
document titled motion to amend the complaint. (ECF No. 9.) In this document, Eubanks states that he has
determined that the name of the John Doe defendant is Capt. Theander and he requests that the Court add
Capt. Theander as a party on place of John Doe. The Court will grant Eubanks’ motion.

filing fee, the Court may allow him to pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
On April 30, 2018, I ordered Eubanks to pay an initial partial filing fee of $10.75.
Eubanks paid that fee on May 7, 2018. Therefore, I will grant his motion for leave to
proceed without prepayment of the filing fee. Eubanks must pay the remainder of the filing
fee over time in the manner explained at the end of this order.
SCREENING THE COMPLAINT
1.

Federal Screening Standard

The law requires the court 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). The Court must dismiss a complaint if the plaintiff raises 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 claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows a court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim 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 United States; and 2) the
defendant was 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
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(7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se
plaintiff’s 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)).
2.

Eubanks’ Allegations

Eubanks is incarcerated at the Waupun Correctional Institution He alleges that on
April 22, 2018, defendant Officer Dorn closed Eubanks’ hand in the “trap” (presumably, the
trap door of his cell through which officers can pass things to inmates), causing pain and
blood. Eubanks states that it is unclear why Dorn closed his hand in the trap.
On April 23, 2018, Dorn allegedly told Eubanks that Eubanks had no other choice
but to allow Dorn to take him to see the nurse, or he would not see the nurse at all. Eubanks
allowed Dorn to take him to the nurse. On the way back, Officer Dorn said, “how do that
hand feel just be lucky I didn’t break it [sic].” (ECF No. 1 at 2.)
Eubanks alleges that on April 23, 2018, he wrote a letter to defendant Warden Brian
Foster stating that Officer Dorn had assaulted him the previous day. Warden Foster
allegedly allowed Officer Dorn to have contact with Eubanks after the incident.
Next, Eubanks alleges that on April 24, 2018, while Officer Dorn was taking him to
the showers, Dorn locked his hand around Eubanks’ arm very hard, causing him pain.
When Eubanks was locked in the shower he asked Dorn, “why are you assaulting me?” (Id.)
Dorn allegedly replied, “you haven’t seen nothing yet,” gave Eubanks his clothes, and
walked off. (Id.) Eubanks filed an inmate complaint because he feared for his safety.
Eubanks alleges that defendant Nurse Gwendolyn Vick saw Officer Dorn close
Eubanks’ hand in the trap and did not give him medical attention right away.

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Eubanks alleges that on April 23, 2018, defendant Officer Pohl told Eubanks to get
down and bend over in order to get his morning meal tray. Eubanks asked Pohl to repeat
what he said and Pohl then stated, “get the fuck down bend over if you want this tray.” (Id.)
Eubanks states that he refused because he felt the comment was sexual, and then Pohl said
“to[o] bad I can’t look at you today but you won’t be getting your tray as well.” (Id.)
Eubanks reported a sexual complaint based on Pohl’s conduct.
Next, Eubanks alleges that on April 20, 2018, defendant Captain Theander (formerly
Supervisor John Doe) used a Taser on Eubanks without warning. The Taser hurt Eubanks’
middle back and now he has “nonstop pain” there. Captain Theander allegedly did this
because Eubanks was defending himself when another inmate attacked him on the
basketball court. Eubanks states that Captain Theander did not warn him to get on the
ground and that Theander did not use the Taser on the other inmate.
For relief, Eubanks seeks monetary damages and injunctive relief.
3.

Analysis

It appears that Eubanks is attempting to improperly bring unrelated claims in a single
case. Pursuant to Federal Rule of Civil Procedure 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). “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, joinder of multiple
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defendants into one action is proper only if “any right to relief is asserted against them
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(a)(2).
The complaint violates Rules 18 and 20 insofar as it advances unrelated claims
against multiple defendants. The George court instructed that such “buckshot complaints”
should be “rejected.” Id. Therefore, Eubanks may not proceed on the original complaint.
Eubanks will be allowed to file an amended complaint in this case incorporating only
properly related claims. He may bring any unrelated claim not pursued in this case in a
separate action.
Specifically, Eubanks’ claims against Officer Dorn, Warden Foster, and Nurse Vick
belong in one case. He states an excessive force claim against Officer Dorn based on
allegations that Dorn closed his hand in the trap on April 22, 2018, and allegedly assaulted
him on April 24, 2018. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012) (citing Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992)). Eubanks appears to advance a failure to protect claim
against Warden Foster. In his amended complaint, Eubanks should include more
allegations against Foster, such as what he told Foster in the April 23, 2018 letter, so that I
can better evaluate whether Eubanks states a claim against him. Eubanks also alleges that
Nurse Vick witnessed the incident on April 22, 2018, and denied him immediate medical
attention. Eubanks should include more information about this claim in his amended
complaint, should he choose to file one. For example, did he ask Nurse Vick for medical
attention and where was she in relation to him when the incident happened.

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Eubanks’ claim against Pohl does not appear to be related to his claims against Dorn,
Foster, and Vick. Eubanks may file another case raising this claim, but he should also
include more information so that the court may better evaluate the allegations to determine
whether they state a claim.
Lastly, Eubanks’ claim against Theander is not related to his other allegations and
Eubanks would need to file another case if he wanted to proceed on an excessive force claim
against Theander.
When writing his amended complaint, Eubanks should provide the Court with
enough facts to answers to the following questions: 1) Who violated his constitutional
rights?; 2) How did each person violate his rights?; 3) Where did each person violate his
rights?; and 4) When did each person violate his rights? Eubanks’ complaint does not need
to be long, or contain legal language or citations to statutes or cases, but it does need to
provide the Court and each defendant with notice of what each defendant allegedly did to
violate the plaintiff’s rights.
A copy of the court’s complaint form and instructions will be enclosed with this
order. Eubanks should write the word “AMENDED” in front of the word “COMPLAINT”
at the top of the first page, and then put the case number for this case—18-cv-663—in the
field for “Case Number.” He must list all of the defendants in the caption of the complaint.
He must use the spaces on pages two and three to allege the key facts that give rise to the
claims he wishes to bring, and to describe which defendants he believes committed the
violations that relate to each claim. If the space is not enough, he may use up to five
additional sheets of paper (putting page numbers on each additional page). The amended
complaint takes the place of the prior complaint, and must be complete in itself. Eubanks
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cannot simply say, “Look at my first complaint for further information.” See Duda v. Bd. of
Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998).
If Eubanks files the amended complaint by the deadline, I will screen it under 28
U.S.C. § 1915A.
CONCLUSION
NOW, THEREFORE, IT IS ORDERED that the plaintiff’s motion for leave to
proceed without prepayment of the filing fee (Docket # 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave to amend the
complaint (Docket # 9) is GRANTED. The clerk of court’s office shall substitute defendant
Capt. Theander for defendant Supervisor John Doe.
IT IS FURTHER ORDERED that the plaintiff file an amended complaint on or
before July 27, 2018, which contains only related claims as described in this Order.
IT IS FURTHER ORDERED that the clerk of court’s office mail the plaintiff a
prisoner complaint form along with order.
IT IS FURTHER ORDERED that if the plaintiff does not file an amended
complaint by July 27, 2018, that complies with the requirements of Rules 18 and 20,
Federal Rules of Civil Procedure, this action may be dismissed for failure to prosecute.
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall
collect from his institution trust account the $339.25 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
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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 ALSO ORDERED that a copy of this order be sent to the officer in charge of
the agency where the inmate is confined.
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 EFiling Program 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.
Dated at Milwaukee, Wisconsin this 27th day of June, 2018.
BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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