Howard v. Braemer et al

Filing 9

ORDER signed by Chief Judge Pamela Pepper on 1/6/2021. 2 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $226 balance of filing fee from plaintiff's prison t rust account under 28 USC §1915(b)(2). Plaintiff may file amended complaint by 2/12/2021; failure to file by deadline will result in dismissal. (cc: all counsel and mailed to Warden and Joshua Howard at Green Bay Correctional Institution-with blank amended complaint form)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA HOWARD,
Plaintiff,
v.

Case No. 20-cv-1366-pp

DANIEL BRAEMER, CHAPLAIN DONOVAN,
BRIAN FOSTER, C.O. GREEN,
CARLA HARTMAN, NIKKI KAMPHUIS,
TONY MELI, JAMES OLSON,
DYLON RADTKE, CHIEF WEISGERBER,
and JOHN AND JANE DOES,
Defendants.
ORDER GRANTING MOTION TO PROCEED WITHOUT PREPAYING
FILING FEE (DKT. NO. 2) AND SCREENING COMPLAINT
Plaintiff Joshua Howard, an inmate at Green Bay Correctional
Institution who is representing himself, filed a complaint on September 3, 2020
alleging that the defendants violated his civil rights under 42 U.S.C. §1983.1
This decision resolves the plaintiff’s motion to proceed without prepaying the
filing fee, dkt. no. 2 and screens the complaint, dkt. no. 1.
I.

Motion to Proceed without Prepaying the Filing Fee (Dkt. No. 2)
The Prison Litigation Reform Act applies to this case because the plaintiff

was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows
The plaintiff has filed numerous cases in the district over the past several
years, and this is the first of three cases the plaintiff has filed in this district in
the past three and a half months. On November 30, 2020, he filed Case No. 20cv-1768 and on December 15, 2020, he filed Case No. 20-cv-1850. On
December 14, 2020, the court dismissed another of his cases, Case No. 18-cv1830, and issued the plaintiff a strike.
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a court to let incarcerated plaintiff proceed with his case without prepaying the
civil case filing fee if he meets certain conditions. One of those conditions is
that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the
plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay
the balance of the $350 filing fee over time, through deductions from his
prisoner account. Id.
On September 3, 2020, the court ordered that by September 24, 2020,
the plaintiff must pay an initial partial filing fee of $124.00. Dkt. No. 5. On
September 22, 2020, the court received from the plaintiff a motion for an
extension of time to pay the initial partial filing fee, dkt. no. 7; on September
23, 2020 the court granted that motion, giving the plaintiff a deadline of
November 2, 2020 by which to pay the fee, dkt. no. 8. The court received the
initial partial filing fee on November 17, 2020. The court will grant the
plaintiff’s motion for leave to proceed without prepaying the filing fee and will
require him to pay the remainder of the filing fee over time in the manner
explained at the end of this order.
II.

Screening the Complaint (Dkt. No. 1)
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
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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
“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 liberally construes 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
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(citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
B.

Allegations in the Complaint

The plaintiff alleges five separate incidents, each involving a different set
of defendants.
First, he states that on July 14, 2016, he received a memo from
defendant Carla Hartman, “a member of the DOC business office staff,” stating
that J.L. Marcus, a DOC-approved vendor, had received a property order from
the plaintiff, but “they required a return address before they could process it.”
Dkt. No. 1 at ¶¶1-2. The plaintiff states that he “did not receive the envelope or
letter and he did not receive a Notice of Non-delivery.” Id. at ¶3. The plaintiff
says that he wrote to Hartman about not receiving his mail and “being afforded
the due process of receiving a DOC-243 identifying the properly along with an
option to mail it out.” Id. at ¶4. The plaintiff says he did not receive a response.
Id. The plaintiff says that he “filed a complaint”—the court assumes he means
that he filed a grievance through the inmate complaint review system—but that
the complaint was dismissed. Id. at ¶5. The plaintiff asserts that “by
intercepting [his] mail without using the applicable forms for due process,”
Hartman, her supervisor defendant Nikki Kamphuis, and unidentified John
and Jane Does illegally seized and deprived him of his property in violation of
his rights under the First and Fourteenth Amendments. Id. at ¶6.
Second, the plaintiff alleges that between 2014 and 2017 “the
Defendants repeatedly engaged in the practice of automatically barring prison
newsletters only to reverse themselves weeks later.” Id. at ¶9. The plaintiff
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states that this practice resulted in only a small percentage of inmates
receiving a newsletter entitled “Voices From Behind WI Prison Gates;” he says
the newsletters were delivered only to those inmates who timely filed
complaints about non-delivery, which delayed delivery by about a month. Id. at
¶¶ 8-9. The plaintiff also alleges that on June 14, 2014, a newsletter entitled
“Bridges of Voices” “was not allowed in upon a finding that the newsletter”
posed a security threat; was inconsistent with the safety, treatment and
rehabilitative purposes of confinement; and contained information that would
“create a clear danger of physical or mental harm to any person.” Id. at ¶10.
The plaintiff says that he filed a complaint and that over a month later, on July
16, 2014, the defendants reversed their position and the newsletter was
delivered to the plaintiff. Id. at ¶11.
The plaintiff asserts that on November 15, 2016, the defendants barred
“Voices From Behind WI Prison Gates” “upon a finding that the newsletter”
discussed an activity that, if completed, would violate the law or the DOC’s
administrative rules; posed a security threat; and was inconsistent with the
safety, treatment and rehabilitative purposes of confinement. Id. at ¶12. The
plaintiff says he filed a complaint, and over a month later, on December 16,
2016, the defendants reversed their decision, allowing him to have the
newsletter. Id. at ¶13. The plaintiff says that this newsletter included a
complaint form for inmates to use when complaining about prison conditions.
Id. at ¶14. The plaintiff says that at this point, he filed a complaint—
presumably a grievance through the ICRS—“about the apparent practice,” but
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that the complaint examiner and the warden rejected it, finding that “the issue
raised does not personally affect the inmate.” Id. at ¶15.
The plaintiff alleges that on July 25, 2017, “an IWOC”2 newsletter” was
not delivered because it reported on “disruptive conditions at MSDF [Milwaukee
Secure Detention Facility].” Id. at ¶16. The plaintiff filed a complaint, and the
Division of Adult Institutions Deputy Security Chief3 reversed “Defendant
Braemer, Olson, Meli and Foster’s banning.” Id. at ¶17. Although the Deputy
Security Chief reversed the ban, the plaintiff states he never received the
newsletter. Id. at ¶18. The plaintiff alleges that in September 2017 and
November 2018 issues of the IWOC newsletter were banned by the Office of the
DAI Security Chief “upon a finding that they posed a threat to the security and
orderly operation of the institution.” Id. at ¶21. The plaintiff believes that those
newsletters were banned “by Defendant Weisgerber and Does without a
rational connection to a legitimate penological interest,” and he alleges that
this violated his First Amendment rights. Id. at ¶ 22.
Third, the plaintiff—who identifies as a practicing Buddhist—alleges that
defendants Chaplain Donovan and C.O. Green violated his First Amendment
rights when they did not allow the plaintiff to have a book on the Buddhist
religion that included a set of prayer beads. Id. at ¶¶ 24-27. The plaintiff

The plaintiff mentions prison advocacy groups in the complaint; while he does
not say so, the court suspects that “IWOC” refers to the Incarcerated Workers
Organizing Committee. https://incarceratedworkers.org/branches/milwaukee.
2

In the section of the complaint identifying the parties, the plaintiff says that
defendant Weisgerber was the DAI Security Chief. Dkt. No. 1 at page 2, ¶10.
3

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explains that the DOC-contracted vendors do not offer Buddhist prayer beads,
but that in September 2019, he purchased a Buddhist book that included a set
of prayer beads. Id. at ¶¶23-24. He says that when the book and the prayer
beads arrived at the institution, they weren’t allowed because the staff hadn’t
properly entered the plaintiff’s religion into the WICS system.4 Id. at ¶25. The
plaintiff asserts that once that error was corrected, defendants Donovan and
Green refused to let him have the book or the prayer beads “because Muslim
prayer beads were available in the DOC vendor catalogs and the book could not
be separated from the beads.” Id. at ¶26. The plaintiff asserts that this violated
his First Amendment rights. Id. at ¶27.
Fourth, the plaintiff alleges that inmates at Green Bay Correctional
Institution do not have the ability to send or receive mail on Saturdays, even
though the U.S. Postal Service operates on Saturdays. Id. at ¶28. The plaintiff
says that Green Bay has the infrastructure to allow inmates access to phones
on a daily basis, but that inmates are allowed to make calls from the cell hall
only twice a week “and if they have a pass during their time to use the phone,
they lose the opportunity to do so.” Id. at ¶29. He explains that most inmates’
families live far away, so their primary means of communication is the mail. Id.
at ¶30. The plaintiff alleges that defendant Dylon Radtke violates his First
Amendment rights by denying him his ability to freely and reasonably

The Wisconsin Integration Correction System, custom software that manages,
among other things, inmate identification. https://www.microfocus.com/
media/success-story/wisconsin_doc_ss.pdf.
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communicate with other people “by sending and receiving mail and
publications on Saturdays.” Id. at ¶32.
Finally, the plaintiff explains that the DOC used to have an interinstitutional mail system that allowed inmates to send each other legal
materials and letters. Id. at ¶33. He asserts that “most” DOC institutions allow
inmates to bring their legal materials to recreation so that inmates can help
each other, and he says that it is “nearly impossible to provide an opinion or
assessment of an inmate’s legal situation without being able to review relevant
documents from their case.” Id. at ¶34. The plaintiff says that it is against DOC
rules to pass legal materials to each other and “paying the required postage to
send voluminous materials through the mail is not feasible.” Id. The plaintiff
concedes that inmates can help each other at the prison library, but says that
this is not feasible due to differing inmate schedules; he also indicates that
there are “court deadline passes” that prevent inmates from working on
anything other than the case in which they have a deadline or going to the part
of the library where talking is allowed. Id. at ¶35. The plaintiff alleges that by
barring inmates from bringing their legal materials to recreation, Radtke is
violating the plaintiff’s First Amendment rights. Id. at ¶39.
C.

Analysis

In this single complaint, the plaintiff claims that eleven defendants, not
including the John and Jane Does, violated his constitutional rights in five
separate and distinct ways. The plaintiff is attempting to bring unrelated
claims against unrelated defendants in a single suit, violating Federal Rules of
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Civil Procedure 18(a) and 20(a). Under these rules, a plaintiff may allege in one
complaint all the relevant claims he has against a single defendant. Wheeler v.
Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012) (citing George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). A plaintiff may bring separate
claims against separate defendants (claim #1 against Defendant A and claim #2
against Defendant B) only where the claims “arise out of the same transaction,
occurrence, or series of transactions or occurrences,” or where “any question of
law or fact common to all defendants will arise in the action.” Id. See also Fed.
R. Civ. P. 20(a)(1)(A), (2).
The plaintiff alleges multiple claims against multiple defendants that do
not arise out of the same transactions, occurrences or series of occurrences
and do not have questions of law or fact in comment. The events he describes
in this single complaint span a period from 2014 through 2019. One claim
involves a failure to deliver mail to the plaintiff. Another claim concerns various
Green Bay staff banning newsletters over a four-year span. Another claim
alleges that that Green Bay’s chaplain and a correctional officer denied him a
book about Buddhism and Buddhist prayer beads. Yet another claim
complains that Green Bay does not allow mail on Saturdays. The final claim
takes issue with Green Bay’s policy barring inmates from bringing legal
materials to recreation.
Though all these claims concern alleged violations of the plaintiff’s First
Amendment rights, the First Amendment is not a question of law common to
all defendants. The First Amendment issues in each of the five fact scenarios
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are different. The claims regarding receipt and access to mail involve the Free
Speech Clause of the First Amendment. The claim about the prayer beads
involves the Free Exercise of Religion Clause. The claim about bringing legal
materials to recreation involves the right to petition for redress of grievances
(an “access to courts” claim). Even the claims involving access to mail or
newsletters involve different defendants and different timeframes. The Seventh
Circuit requires this court to reject such “buckshot complaints.” George, 507
F.3d at 607.
The court will give the plaintiff the opportunity to amend his complaint.
The plaintiff must use the court’s standard amended complaint form (the court
is enclosing a blank copy). He must either select one defendant and put in the
complaint all his claims against that one defendant, or select one occurrence or
series of occurrences and include all the defendants involved in that
occurrence. The plaintiff must file a separate complaint for each separate series
of occurrences involving the same defendants.
The plaintiff must put the case number for this case—20-cv-1366—on
the line under “Case Number.” He must list the name of each of the defendants
involved in the occurrence in the caption of the complaint. The amended
complaint takes the place of the prior complaint and must be complete in itself,
so the plaintiff 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). He must describe in the space
provided the who, what, when, where and why information about the
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occurrence he has chosen to pursue in this case. The plaintiff should be able to
fit all the relevant facts into the space provided on the form complaint. If not,
he may use up to three additional pages, double-spaced, to include the
remaining facts. The plaintiff does not need to cite case law or provide legal
argument. He needs only to tell the court who violated his constitutional rights,
when, where, how and, if he knows, why. If the plaintiff files the amended
complaint by the deadline listed below, and it complies with this order, the
court will screen it under 28 U.S.C. §1915A
III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepaying the filing fee. Dkt. No. 2.
The court ORDERS that if the plaintiff wishes to amend his complaint,
he must do so in time for the court to receive the amended complaint by the
end of the day on February 12, 2021. If the court does not receive the
amended complaint by the end of the day on February 12, 2021, the court will
dismiss the case for the plaintiff’s failure to diligently prosecute it, as allowed
under Civil Local Rule 41(c).
The court ORDERS that the agency that has custody of the plaintiff shall
collect from his institution trust account the $226.00 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 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).
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The agency must clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution must forward a copy of this order, along with the
plaintiff’s remaining balance, to the receiving institution.
The court will send a copy of this order to the officer in charge of the
agency where the plaintiff is confined.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff must submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the court.5 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
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises 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 prosecute. The parties must notify the clerk of

The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
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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 in Milwaukee, Wisconsin this 6th day of January, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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