Castellano v. Kuepper et al

Filing 14

SCREENING ORDER signed by Judge J P Stadtmueller on 7/29/2022. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as direct ed. 13 Plaintiff's Motion for an Order Regarding Exhaustion of Administrative Remedies is DENIED. 11 Plaintiff's Motion to Amend Complaint is GRANTED; Plaintiff's Amended Complaint (ECF No. 11-1) to be docketed as the OPERATIVE complaint. Defendants Cheryl Eplett, Ashley Walther, Alyssa Maloney, Todd Gillingham, Jeffrey Freund, and Daniel McMillan are DISMISSED from this action. Plaintiff may PROCEED against Defendants Ryan Kuepper and Patricia Lis on a First Amendment retaliation claim. A copy of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related ch allenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (Attachments: # 1 Prisoner & Pro Se Guides) (cc: all counsel, via mail to John J Castellano and Warden (Order only) at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN J. CASTELLANO,

v.

Plaintiff,

RYAN KUEPPER, CHERYL EPLETT,
PATRICIA LIS, ASHLEY WALTHER,
ALYSSA MALONEY, TODD
GILLINGHAM, JEFFREY FREUND,
and DANIEL MCMILLAN,

Case No. 21-CV-962-JPS

ORDER

Defendants.

Plaintiff John J. Castellano, an inmate confined at Oshkosh
Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983
alleging that the defendants violated his First Amendment constitutional
rights by retaliating against him. ECF No. 1. On December 8, 2021, Plaintiff
filed a motion to amend the complaint with the proposed amended
complaint attached. ECF No. 11. On March 9, 2022, Plaintiff filed a motion
for an order that Plaintiff has exhausted administrative remedies. ECF No.
13.
Federal Rule of Civil Procedure 15 allows a plaintiff to amend the
complaint once as a matter of course in certain circumstances and the Court
should freely grant leave to amend when justice so requires. Here, Plaintiff
filed his motion to amend prior to the Court screening the original
complaint, and the Court will grant Plaintiff’s motion to amend. As such,
the Court will screen ECF No. 11-1 at the operative complaint in this matter.

Plaintiff’s motion for an order regarding exhaustion is premature.
Because exhaustion is an affirmative defense, the defendants bear the
burden of proving that Plaintiff failed to exhaust. See Pavey v. Conley, 544
F.3d 739, 74041 (7th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Plaintiff’s motion is therefore premature as no defendants have been served
and the issue of exhaustion is not before the Court. As such, the Court will
deny Plaintiff’s motion for an order that Plaintiff has exhausted
administrative remedies. ECF No. 13.
This remainder of this Order resolves Plaintiff’s motion for leave to
proceed without prepaying the filing fee and screens his amended
complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On August 23, 2021, the Court ordered Plaintiff to pay an initial
partial filing fee of $5.85. ECF No. 5. Plaintiff paid that fee on September 3,
2021 and on September 8, 2021. The Court will grant Plaintiff’s motion for
leave to proceed without prepaying the filing fee. ECF No. 2. He must pay
the remainder of the filing fee over time in the manner explained at the end
of this Order.

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2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an 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 applies to dismissals 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)). 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 Atl. 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 Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
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liberally and holds them 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)).
2.2

Plaintiff’s Allegations

Plaintiff’s allegations revolve around retaliation claims for exercising
his First Amendment rights to file prisoner complaints. On or about May 9,
2021, or May 10, 2021, Plaintiff complained, verbally, to Defendant Ryan
Kuepper (“Kuepper”) about the mistreatment of another special needs
inmate. ECF No. 11-1 at 2, 4. On May 13, 2021, Kuepper called for a staff
meeting with Plaintiff, Defendant Patricia Lis (“Lis”), Defendant Daniel
McMillan (“McMillan”), Defendant Ashley Walther (“Walther”) and
Defendant Alyssa Maloney (“Maloney”) for the purpose of admonishing
Plaintiff for his original complaint of Kuepper. Id. at 4. During this meeting,
these defendants threatened Plaintiff with the deprivation of his ISNW job
if he did not cease and desist from meddling in Transitional Treatment
Center (“TTC”) affairs. Id. McMillan allegedly did all the talking during this
meeting. Although McMillan did not have a personal interest in the matter,
Kuepper instructed McMillan to put Plaintiff in his place, to stand down,
and to use his authority to intimidate Plaintiff. Id. On May 25, 2021, Plaintiff
filed a DCO-400 inmate complaint against Kuepper and Lis regarding their
mistreatment of another special needs inmate. Id. at 2. On June 2, 2021, in
Kuepper’s office with Plaintiff’s complaint in hand, Kuepper and Lis made
good on their threat and terminated Plaintiff from his ISNW job and had
him “booted” off the unit. Id at 4.
Plaintiff further alleges that Defendant Jeffrey Freund (“Freund”)
systematically rejected, returned, or dismissed Plaintiff’s inmate complaint
on June 11, 2021. Id. at 9–10. Defendant Todd Gillingham (“Gillingham”)
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also allegedly retaliated against him by dismissing his administrative
complaints on various dates in June and July of 2021. Id. at 8–9. Finally,
Plaintiff alleges that Defendant Warden Cheryl B. Eplett (“Eplett”) made
herself a party to the retaliation when she dismissed Plaintiff’s inmate
complaint on June 15, 2021. Id. at 7. Eplett deferred to the complaint
examiner’s recommendation to dismiss Plaintiff’s retaliatory First
Amendment claims. Id.
2.3

Analysis

First, the Court finds that Plaintiff can proceed against Kuepper and
Lis on First Amendment retaliation claims. To prevail on this claim, Plaintiff
must ultimately show that: “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation likely to deter such activity; and
(3) the First Amendment activity was at least a motivating factor in the
decision to impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996
(7th Cir. 2014).
Here, Plaintiff alleges that the defendants retaliated against him for
filing inmate grievances. It is well established that a prisoner’s ability to file
complaints is protected by the First Amendment. See Hughes v. Scott, 816
F.3d 955, 956 (7th Cir. 2016). As for the second element, he alleges suffering
a deprivation—getting fired from his prison job and “booted” from the
unit—that, we can infer, would likely dissuade a person of ordinary
firmness from exercising further First Amendment activity. See Gomez v.
Randle, 680 F.3d 859, 866 (7th Cir. 2012) (prison transfer likely to deter First
Amendment activity). Finally, Plaintiff alleges that Kuepper and Lis fired
him from his job, with his administrative complaint in their hands, which
suggests it was at least a motivating factor in the deprivation. At the

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pleading stage, the Court finds these allegations sufficient to state First
Amendment retaliation claims against Kuepper and Lis.
The Court does not, however, find that these allegations state a
retaliation claim against McMillan, Walther, or Maloney. These defendants
participated in Kuepper’s May 13, 2021, meeting where Plaintiff was
threatened with the loss of his job for verbally complaining about
Kuepper’s treatment of the special needs inmate. Plaintiff did not submit
his inmate complaint, however, until well after this meeting on May 25,
2021. Additionally, there are no facts to suggest McMillan, Walther, or
Maloney took any part in the retaliatory act—getting Plaintiff fired from his
prison job and “booted” from the unit—to meet the third prong needed to
state a retaliation claim. As such, the Court will dismiss McMillan, Walther
and Maloney from this action for the failure to state a claim against them.
Finally, the Court will dismiss Eplett, Freund, and Gillingham from
this action. Plaintiff’s only allegations regarding these defendants involve
their failure rule in his favor on the administrative prisoner complaints.
“Ruling against a prisoner on an administrative complaint does not cause
or contribute to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007). As such, the Court will dismiss Eplett, Freund, and Gillingham from
this action as well.
3.

CONCLUSION
In light of the foregoing, the Court finds that Plaintiff may proceed

on the following claim pursuant to 28 U.S.C. § 1915A(b):
Claim One: First Amendment retaliation against Defendants
Kuepper and Lis.
The Court has enclosed with this Order guides prepared by court
staff to address common questions that arise in cases filed by prisoners.
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These guides are entitled, “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions.” They
contain information that Plaintiff may find useful in prosecuting his case.
Defendants should take note that, within forty-five (45) days of
service of this Order, they are to file a summary judgment motion that raises
all exhaustion-related challenges. The Court will issue a scheduling order
at a later date that embodies other relevant deadlines.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for an order
regarding exhaustion of administrative remedies, ECF No. 13, be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to amend the
complaint, ECF No. 11, be and the same is hereby GRANTED; the Clerk of
Court shall docket ECF No. 11-1, the amended complaint, as the operative
complaint in this action;
IT IS FURTHER ORDERED that Defendants Eplett, Walther,
Maloney, Gillingham, Freund, and McMillan be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that 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 Kuepper and Lis;

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IT IS FURTHER ORDERED that under the informal service
agreement, those Defendants shall file a responsive pleading to the
amended complaint within 60 days;
IT IS FURTHER ORDERED that Defendants raise any exhaustionrelated challenges by filing a motion for summary judgment within fortyfive (45) days of service;
IT IS FURTHER ORDERED that if Defendants contemplate a
motion to dismiss, the parties must meet and confer before the motion is
filed. Defendants should take care to explain the reasons why they intend
to move to dismiss the complaint, and Plaintiff should strongly consider
filing an amended complaint. The Court expects this exercise in efficiency
will obviate the need to file most motions to dismiss. Indeed, when the
Court grants a motion to dismiss, it typically grants leave to amend unless
it is “certain from the face of the complaint that any amendment would be
futile or otherwise unwarranted.” Harris v. Meisner, No. 20-2650, 2021 WL
5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting Runnion ex rel. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015)).
Therefore, it is in both parties’ interest to discuss the matter prior to motion
submissions. Briefs in support of, or opposition to, motions to dismiss
should cite no more than ten (10) cases per claim. No string citations will be
accepted. If Defendants file a motion to dismiss, Plaintiff is hereby warned
that he must file a response, in accordance with Civil Local Rule 7 (E.D.
Wis.), or he may be deemed to have waived any argument against dismissal
and face dismissal of this matter with prejudice;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $338.30 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
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account in an amount equal to 20% of the preceding month’s income
credited to 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). The payments shall be clearly identified by the
case name and number assigned to this case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his 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 Plaintiff is confined; and
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
copy of the guides entitled “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions,” along
with this Order.
Dated at Milwaukee, Wisconsin, this 29th day of July, 2022.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge
Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.

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Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, 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 COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply 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. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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