Killebrew v. Vogel et al

Filing 5

SCREENING ORDER re #1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 6/4/2024. #2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. By 7/9/2024, Plaintiff to FILE an amended complaint; failure to timely do so will result in dismissal of this action. See Order. (cc: all counsel, via mail to Shondell Killebrew with prisoner amended complaint form and pro se/prisoner guides)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHONDELL KILLEBREW,
Plaintiff,

v.

HEATHER RIEHLE VOGEL and
MARQUELEANA MCMURTRY,

Case No. 24-CV-514-JPS

ORDER

Defendants.

Plaintiff Shondell Killebrew, a former inmate filed a pro se complaint
under 42 U.S.C. § 1983 alleging that the defendants violated his
constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for
leave to proceed without prepaying the filing fee and screens his complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
Plaintiff was not incarcerated at the time of filing and Plaintiff filed a

motion to proceed without prepayment of the filing fee. ECF No. 2. On the
question of indigence, although Plaintiff need not show that he is totally
destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), the privilege of
proceeding without prepayment of the filing fee “is reserved to the many
truly impoverished litigants who, within the District Court’s sound
discretion, would remain without legal remedy if such privilege were not
afforded to them.” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th
Cir. 1972).
In his motion, Plaintiff avers that he currently has no assets ECF No. 2.
Plaintiff indicates that he was recently released from prison and therefore
has not received his social security income. Id. at 4. He does not own a car

or a home; has nothing in checking or savings accounts; and does not own
any other property of value. Id. at 3–4. Given these facts, the Court accepts
that Plaintiff is indigent and will grant his motion to proceed without
prepayment of the filing fee. However, the inquiry does not end there; the
Court must also screen the action.
2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Notwithstanding the payment of any filing fee, when a plaintiff
requests leave to proceed in forma pauperis, the Court must screen the
complaint and dismiss it or any portion thereof if it 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. § 1915(e)(2)(B). A claim is legally
frivolous when it lacks an arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The Court may dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
To state a claim, a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). In other words, the complaint must give “fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The allegations must “plausibly suggest
that the plaintiff has a right to relief, raising that possibility above a
speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016)
(internal citation omitted). Plausibility requires “more than a sheer
possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Twombly, 550 U.S. at 556). In reviewing the complaint,
the Court is required to “accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the plaintiff.”
Kubiak, 810 F.3d at 480–81. However, the Court “need not accept as true
‘legal conclusions, or threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.’” Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009) (citing Iqbal, 556 U.S. at 678) (internal bracketing omitted).
2.2

Analysis
To state a claim under the federal notice pleading system, a plaintiff

must provide a “short and plain statement of the claim showing that [he] is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff should not plead every
fact supporting his claims; he only has to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). There is a reason that the rule specifies a “short and plain”
statement. “Rule 8(a) requires parties to make their pleadings
straightforward, so that judges and adverse parties need not try to fish a
gold coin from a bucket of mud.” U.S. ex rel. Garst v. Lockheed-Martin Corp.,
328 F.3d 374, 378 (7th Cir. 2003). “[L]ength may make a complaint
unintelligible, by scattering and concealing in a morass of irrelevancies the
few allegations that matter.” Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir.
2013) (quoting U.S. ex rel. Garst, 328 F.3d 374, 378 (7th Cir. 2003)). “District
judges are busy, and therefore have a right to dismiss a complaint that is so
long that it imposes an undue burden on the judge, to the prejudice of other
litigants seeking the judge’s attention.” Id.
Here, the Court finds that Plaintiff’s complaint violates Rule 8(a)(2)
of the Federal Rules of Civil Procedure and will therefore be dismissed with
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leave to amend. The complaint does not include “a short plain statement of
the claim showing that the pleader is entitled to relief,” as the rule
requires. Fed. R. Civ. P. 8(a)(2). Instead, Plaintiff filed a twenty-five-page
complaint, that is extremely difficult to read, with boilerplate legal
provisions and factual allegations unrelated to the named defendants. See
ECF No. 1. Plaintiff names as defendants his parole agent and the agent’s
supervisor. Id. at 4. For unknown reasons, however, Plaintiff’s complaint
contains pages of details related to an ex-girlfriend and another female
friend. “[T]his branch of the court has neither the time nor the resources to
engage in what might be charitably described as an archeological dig or
truffle hunt.” Sinthasomphone v. Ally Fin. Inc., No. 21-CV-863-JPS, 2022 WL
1486512, at *1 (E.D. Wis. May 11, 2022); see also United States v. Dunkel, 927
F.2d 955, 956 (7th Cir.1991) (“Judges are not like pigs, hunting for truffles
buried in briefs.”).
As such, the Court finds that the complaint fails to comply with Rule
8(a)(2). Therefore, the Court will dismiss the complaint for the failure to
state a claim upon which relief may be granted. If Plaintiff wishes to
proceed, he must file an amended complaint curing the deficiencies in the
complaint as described herein. An amended complaint must be filed on or
before July 9, 2024. Failure to file an amended complaint within this time
period may result in dismissal of this action without further notice.
Plaintiff should include only the facts necessary in relation to the
Defendants’ action and what they did or did not do that violated his
constitutional rights. When writing his amended complaint, Plaintiff
should provide the Court with enough facts to answer the following
questions: (1) Who violated his constitutional rights?; (2) What did each
person do to violate his rights; (3) Where did each person violate his rights?;
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and (4) When did each person violate his rights? Plaintiff’s amended
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 or did not do to violate
his rights.
The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should 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, Plaintiff may use up to five
additional sheets of paper.
Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th
Cir. 1998). In Duda, the appellate court emphasized that in such instances,
the “prior pleading is in effect withdrawn as to all matters not restated in
the amended pleading.” Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3.

CONCLUSION
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 the complaint fails to state a claim;
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IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before July
9, 2024. If Plaintiff files an amended complaint by the deadline, the Court
will screen the amended complaint under 28 U.S.C. § 1915; if Plaintiff fails
to timely file an amended complaint, the Court will dismiss the case for the
failure to state a claim; and
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and 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 4th day of June, 2024.
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.
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:

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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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