Gill v. Wisconsin Department of Corrections et al

Filing 20

ORDER signed by Chief Judge Pamela Pepper on 1/6/2021. Defendants Guthrie and Benike DISMISSED. Defendants Blanke and Marceau to file responsive pleading to amended complaint within 60 days. Parties may not begin discovery until after the court has issued scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel and mailed to Charles Gill)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES B. GILL, SR.
Plaintiff,
v.

Case No. 20-cv-974-pp

JACKIE GUTHRIE FSA,
NATALIE BLANKE CFSL,
JODY MARCEAU CFSL,
and OFFICER BENIKE Corr. Officer,
Defendants.
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 14).
Plaintiff Charles B. Gill, Sr., representing himself, filed a complaint
alleging that the defendants violated his civil rights under 42 U.S.C. §1983 by
interfering with his free exercise of religion in violation of the First Amendment.
Dkt. No. 1. Three months after he filed his complaint, the plaintiff filed
documents that the court construed as a request for the court to issue a
preliminary injunction, dkt. nos. 10, 10-1, and 10-2, and a letter asking the
court to compel the prison to give the plaintiff his documents and copies, dkt.
no. 11. The court screened the complaint and addressed these documents on
November 3, 2020. Dkt. No. 13. The court gave the plaintiff the opportunity to
amend his complaint, in the event he wanted to add a claim he referenced in
the documents but had not made in the original complaint. Id. at 17. The
plaintiff now has filed the amended complaint, which the court screens in this
order.

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I.

The Court’s Original Screening Order
In its November 3, 2020 screening order, the court dismissed the

Wisconsin Department of Corrections because it is not a person, nor is it a
separate legal entity that can be sued under §1983. Id. at 8 (citing Louis v.
Milwaukee Cty. Jail., No. 17-cv-113-wed-pp, 2017 WL 3037567 at *2 (E.D. Wis.
July 18, 2017 and Powell v. Cook Cty. Jail, 814 F. Supp. 757, 758 N.D. Ill.
1993)). The court also dismissed Secretary of the Department of Corrections,
Kevin Carr, because the plaintiff did not allege that Carr had any personal
involvement in the events that gave rise to his First Amendment free exercise
claim. Id. at 9. The court did not allow the plaintiff to proceed on a First
Amendment free exercise claim against Jackie Guthrie and Officer Benike
because the plaintiff had not alleged that they knew about or were involved in
the May 22, 2020 incident during which the plaintiff was forced handle and
cook ham contrary to his religious beliefs on. Id. at 12-13.
The court allowed the plaintiff to proceed on a First Amendment free
exercise claim and a claim under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) against Natalie Blanke because he alleged that she
ordered him to prepare ham on May 22, 2020 despite knowing that he was not
to handle pork because of his religious beliefs. Id. at 11. The court also allowed
him to proceed on a First Amendment free exercise claim and RLUPIA claim
against Jody Marceau under a theory of supervisor liability because the
plaintiff implied that Marceau had a responsibility to prevent Blanke from
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ordering the plaintiff to cook the ham. Id. at 12. The court noted that if, as the
case progressed, it became clear that Marceau was not Blanke’s supervisor, the
claim against Marceau could be subject to dismissal. Id.
The court also addressed the three documents the court had received
from the plaintiff some three months after he filed the original complaint. One
document was styled as a court order and titled “Order to Show Cause for a
Preliminary Injunction.” Dkt. No. 10-2. The second document was a
memorandum of law in which the plaintiff stated that after he filed his lawsuit,
Officer Benike and Jackie Guthrie retaliated against him. Dkt. No. 10-1. The
third document was the plaintiff’s declaration, asserting that Benike falsified a
conduct report in retaliation and Guthrie terminated him from his kitchen job
in retaliation. Dkt. No. 10. On September 14, 2020, the plaintiff also had filed a
supplement to these documents, detailing the events leading to the allegedly
false conduct report that Benike allegedly issued in retaliation for the plaintiff
taking extra cheese from the kitchen. Dkt. No. 12.
The court construed these documents as a motion for a preliminary
injunction and denied the motion because the plaintiff had not demonstrated
that absent injunctive relief he would suffer irreparable harm or that he had no
adequate remedy at law. Dkt. No. 13 at 16-17. The court acknowledged that
the plaintiff had not yet sued Benike and Guthrie for retaliation and gave the
plaintiff an opportunity to amend his complaint to add the retaliation claims.
Id. at 17. The court specified that in any amended complaint, the plaintiff
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“must state all the facts relating to his free exercise/RLUPIA claims and his
retaliation claims.” Id. The court also stated that if the plaintiff “prefers to
proceed on the free exercise/RLUPIA claims against Blanke and Marceau and
does not wish to add retaliation claims against Benike and Guthrie, he does
not need to do anything, and the court will require the complaint to be served
on Blanke and Marceau only.” Id. at 18.
On November 17, 2020, the court received an amended complaint. Dkt.
No. 14.
II.

Screening the Amendment Complaint
A.

Federal Screening Standard

Under the Prison Litigation Reform Act (PLRA), the court must screen
complaints brought by prisoners seeking relief from 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 prisoner 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).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,
668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include
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“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts,
accepted as true, to “state a claim for relief 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 for relief under 42 U.S.C. §1983, a plaintiff must allege
that someone deprived him of a right secured by the Constitution or the laws of
the United States, and that whoever deprived him of this right was acting
under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints to a less
stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720
(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
B.

Allegations in the Amended Complaint

The amended complaint is substantially similar to the plaintiff’s original
complaint. There are only three significant differences between the two
documents—otherwise, they are identical. First, the amended complaint no
longer names the Wisconsin Department of Corrections or Kevin Carr as
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defendants. Dkt. No. 14 at 1, 2. Second, regarding the allegations against
defendant Marceau, the plaintiff replaced the allegation that Marceau “did not
correct Defendant Blanke’s actions, nor did she help plaintiff Gill,” dkt. no. 1 at
¶ 22, with “she did at times instruct Gill to actually pull the ham out of the
oven and take the temperature when Blanke was doing other things and
couldn’t watch the cooking being done.” Dkt. No. 14 at ¶ 20. In other words,
the plaintiff now alleges that Marceau knew that on May 21, 2020, the plaintiff
was not supposed to handle or cook the pork because of his religious beliefs,
and despite that knowledge, she instructed him handle and cook ham the next
day. Id. Third, the plaintiff changed his damages demand from $300,000 in
compensatory damages and $300,000 in punitive damages in the original
complaint to $1,750,000 in compensatory damages and $1,750,000 in punitive
damages in the amended complaint. Id. at ¶¶39-40.
Despite the fact that the reason the court allowed the plaintiff to file an
amended complaint was so that he could add retaliation claims against Benike
or Guthrie if he so chose, the amended complaint makes no allegations of
retaliation against either of those defendants.
C.

Analysis

Because the amended complaint is substantially identical to the original
complaint, most of the court’s analysis from its November 3, 2020 order
screening the original complaint stands. The plaintiff still has not stated a First
Amendment free exercise against Benike and Guthrie and cannot proceed on
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these claims against them. Because he did not amend the complaint to include
the retaliation claims from his preliminary injunction, the plaintiff has stated
no claims against them and the court dismisses them from the case.
The plaintiff still may proceed on a First Amendment free exercise claim
and RLUPIA claim against Blanke because the allegations in the amended
complaint are identical to the allegations in the original complaint as to Blanke.
The only substantial change in the amended complaint relates to Marceau. In
the amended complaint, the plaintiff implies that Marceau knew on May 21,
2020 that he was not supposed to handle pork because of his religious beliefs.
Dkt. No. 14 at ¶ 20. He alleges that the next day, despite this knowledge,
Marceau still made him handle and cook pork. Given these allegations, the
plaintiff may proceed on a First Amendment free exercise claim and a RLUPIA
directly against Marceau (rather than under a theory of supervisor liability),
because the amended complaint alleges that Marceau “caused or participated
in a constitutional violation.” Hildebrant v. Ill. Dep’t of Nat. Res., 347 F.3d
1014, 1039 (7th Cir. 2003) (quoting Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996)).
III.

Miscellaneous Issues
Although the court gave the plaintiff a deadline of December 18, 2020 by

which to file the amended complaint (a deadline he beat by one day), and
although the court has not yet ordered service of any pleading on the
defendants or required them to answer, on December 28, 2020, the court
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received from defendants Blanke and Marceau an answer to the original
complaint. Dkt. No. 19. That answer likely will need to be amended, at least as
to Marceau, given this order.
On December 14, 2020, the court received a letter from the plaintiff. Dkt.
No. 18. The plaintiff notified the court that on December 1, 2020, he had
received a notice of appearance from counsel for defendants Blanke and
Marceau, indicating that the plaintiff should serve any discovery requests on
counsel. Id. The plaintiff stated, “[e]ven though your Honor has yet to order a
scheduling order, I am sending Assistant Attorney General Paulson my request
for Discovery as soon as the staff here at DACC gets a chance to print it out for
me. God willing it will by before the 18th, of December 2020.” Id.
If the parties will forgive the colloquialism, everybody needs to cool their
jets. The defendants should have waited until the court ordered the complaint
served on them and instructed them to answer, to avoid having to amend their
answer. The plaintiff must not serve discovery demands until the court issues
the scheduling order giving him leave to do so. The defendants’ lawyers sent
him that notice, not as an invitation to jump the gun and start the discovery
process early, but simply to let the plaintiff know where he should send the
discovery demands once the court issued the scheduling order.
III.

Conclusion
The court DISMISSES Jackie Guthrie FSA and Officer Benike as

defendants.
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Under an informal service agreement between the Wisconsin Department
of Justice and this court, a copy of the amended complaint and this order have
been electronically transmitted to the Wisconsin Department of Justice for
service on defendants Natalie Blanke and Jody Marceau. Under the informal
service agreement, the court ORDERS Natalie Blanke and Jody Marceau to file
a responsive pleading to the amended complaint within 60 days.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for completing discovery
and filing dispositive motions.
The court ORDERS that plaintiffs who are inmates at Prisoner E-Filing
Program institutions1 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs
who are inmates at all other prison facilities must submit the original
document for each filing to the court to the following address:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.

The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional
Institution, and Oshkosh Correctional Institution.
1

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The court advises the plaintiff that if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. The parties must notify the
clerk of court of any change of address. The court also advises the plaintiff that
it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. The plaintiff’s failure to keep
the court advised of his address may result in the court dismissing this case
without further notice.
Dated in Milwaukee, Wisconsin this 6th day of January, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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