Cubero v. Wisconsin Department Corrections et al

Filing 2

ORDER signed by Judge J P Stadtmueller on 1/7/2025 in Case No. 24-CV-391 ORDERING that Case No. 25-CV-22 be opened as to Plaintiff Hector Cubero, Jr and this ORDER be docketed in the action. By 1/28/2025, Plaintiff to FILE an amended complaint as directed. See Order. (cc: all counsel, via mail to Hector Cubero, Jr and Warden at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES R. WASHINGTON, HECTOR
CUBERO, JR., DERRICK JONES,
LORENZO JOHNSON, and DEYONTAE
CORNAIL STINSON,
Plaintiffs,
Case No. 24-CV-391-JPS

v.
WISCONSIN DEPARTMENT OF
CORRECTIONS, KEVIN A. CARR,
JARED HOY, MELISSA ROBERTS,
CHRISTOPHER STEVENS, and JOHN
KIND,

ORDER

Defendants.

The original plaintiffs James R. Washington (“Washington”), Hector
Cubero, Jr., (“Cubero”), Derrick Jones (“Jones”), Lorenzo Johnson
(“Johnson”), Deyontae Cornail Stinson (“Stinson”), Willie McDougle
(“McDougle”), and Mohamed Elmhdati (“Elmhdati”), who are incarcerated
at Green Bay Correctional Institution (“GBCI”) and representing
themselves, filed a complaint under 42 U.S.C. § 1983 alleging that their civil
rights were violated.
On May 24, 2024, the Court entered orders for Plaintiffs to pay their
initial partial filing fees (“IPFF”) on or before June 24, 2024. ECF Nos. 28–
33. On July 29, 2024, the Court dismissed Plaintiffs Washington, Jones, and
McDougle for the failure to pay their IPFFs.1 Following their dismissal,
The Court also dismissed Plaintiff Elmhdati based on his request for
voluntary dismissal. ECF No. 38 at 1–2. To date, Elmhdati has not filed anything,
and it does not appear that he sought re-entry into the case. The remainder of this
1

these Plaintiffs sought reinstatement into the case and the Court allowed
them an additional opportunity to pay their IPFFs. See ECF Nos. 46, 50.
Plaintiffs Washington and Jones have all now paid their IPFFs. The Court
therefore considers them as plaintiffs for the remainder of its analysis.
Plaintiff McDougle’s deadline to pay the IPFF was on November 21, 2024.
ECF No. 50. On November 18, 2024, McDougle filed a letter regarding a
disbursement request for the IPFF; however, to date, McDougle has not
paid the IPFF or otherwise sought an extension. As such, McDougle is not
reinstated in the case and the Court does not consider McDougle for the
remainder of this Order. The Court will deny McDougle’s motion to
proceed without prepayment of the filing fee, ECF No. 21, as moot. Should
McDougle wish to pursue his claims, he must file a new case.
1.

PENDING MOTIONS – RULE 11 VIOLATIONS
Currently pending before the Court are nine substantive motions:

(1) Plaintiff Washington’s motion to file initial filing and to use release
account funds; (2) Plaintiff Washington’s motion for reconsideration and
request for Plaintiffs to proceed with complaint as joinders; (3) Plaintiff
Jones’s motion to file initial filing and to use release account funds;
(4) Plaintiff Johnson’s motion for reconsideration and request for Plaintiffs
to continue to proceed with original complaint as joinders; (5) Plaintiff
Jones’s motion for reconsideration and request for all plaintiffs to continue
to proceed with original complaint as joinders; (6) Plaintiff Stinson’s motion
to certify the class; (7) Plaintiff McDougle’s motion for reconsideration and
request for all Plaintiffs to continue to proceed with original complaint as

Order does not include Elmhdati in its analysis. The Court will deny Elmhdati’s
motion to proceed without prepayment of the filing fee, ECF No. 6, as moot.

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joinders; (8) Plaintiff McDougle’s motion to file initial filing and request to
use release account after funds are deducted from regular account; and
(9) Plaintiff Jones’s motion for reconsideration and request for all plaintiffs
to continue to proceed with original complaint as joinders. ECF Nos. 39, 40,
41, 42, 44, 45, 47, 48, 49.
The Court will strike these nine pending motions as improperly filed
pursuant to Federal Rule of Civil Procedure 11(a). In discussing the general
issues of multi-plaintiff suits, the Court specifically warned Plaintiffs in
bold font that the Court would strike every future filing that is not signed
by every plaintiff. ECF No. 7 at 3. None of the pending motions are signed
by more than one plaintiff. The Court wishes to emphasize that it does not
enforce this rule in order to be difficult or to impede Plaintiffs’ ability to
litigate their case. However, the duplicative nature of the nine pending
motions makes it clear that this case simply cannot proceed efficiently with
each plaintiff filing their own motion on each and every subject matter. As
such, the Court will therefore strike these pending motions as improperly
filed.
2.

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

because Plaintiffs were prisoners when they filed the 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.

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On May 24, 2024, the Court ordered Plaintiffs to pay their respective
initial partial filing fee amounts. ECF Nos. 28-33. The remaining plaintiffs
have all now paid their IPFFs. The Court will therefore grant Plaintiffs’
motions for leave to proceed without prepaying the filing fee. ECF Nos. 2,
3, 4, 5, 24. They must each pay the remainder of the filing fee over time in
the manner explained at the end of this Order.
3.

CLASS ACTION
The Court previously informed Plaintiffs that this case could likely

not go forward as a class action lawsuit without class counsel. ECF No. 38
at 2–3. After denying a motion to appoint counsel, the Court provided
Plaintiffs with several months to locate class counsel. See ECF No. 46 at 4.
To date, no counsel has appeared. The Court therefore considers the
propriety of this case moving forward as a class action without counsel.
The Court does not find that Plaintiffs can adequately represent a
class action case with multiple claims for all the inmates at GBCI. The
Seventh Circuit has noted in the past that “it is generally not an abuse of
discretion for a district court to deny a motion for class certification on the
ground that a pro se litigant is not an adequate class representative.” See
Howard v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (emphasis in original); see
also Lawrence v. Sec’y of State, 467 F. App’x 523, 525 (7th Cir. 2012) (“[The
plaintiff] attempted to bring a class action pro se, which was dismissed,
because pro se plaintiffs cannot represent others.”) (emphasis in original).
Recently, one district court found that it would be plain error to allow an
unrepresented inmate to represent his fellow inmates in a class action. See
Garcia v. Cornett, No. 3:23-CV-1056-HAB-SLC, 2023 WL 9051247, at *2 (N.D.
Ind. Dec. 20, 2023) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.
1975) and Hagan v. Rogers, 570 F.3d 146, 159 (3rd Cir. 2009)). The Court
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cannot see how Plaintiffs—who were unable to comply with Rule 11’s
signature requirement—would be able to navigate the legal and
administrative complexities of a class action lawsuit while incarcerated. As
such, the Court will not allow this case to proceed as a class action and the
remainder of this Order screens the complaint and considers whether
Plaintiffs may jointly proceed going forward.
4.

SCREENING THE COMPLAINT
4.1

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).
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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
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)).
4.2

Plaintiffs’ Allegations

Plaintiffs’ allegations involve the conditions of GBCI during a prison
lockdown in 2023. ECF No. 1 at 2. Plaintiffs allege that GBCI does not
provide adequate medical and dental treatment for all inmates. Id. Plaintiffs
also allege various unconstitutional conditions they experienced during the
seven-month lockdown, including the restriction of movement, rodent
infestation, unsanitary living conditions, the denial of recreation and
exercise, and the denial of vocational and educational opportunities. Id. at
2–24. Plaintiffs seek damages and injunctive and declaratory relief for their
claims. Id. at 1, 26.
4.3

Analysis

The Court finds that Plaintiffs cannot proceed jointly in this case.
District courts must accept joint complaints filed by multiple prisoners, but
only if the criteria of permissive joinder under Federal Rule of Civil
Procedure 20 are satisfied. Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir.

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2004).2 Under Rule 20, “Persons may join in one action as plaintiffs if
(A) they assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to
all plaintiffs will arise in the action.” A district court also has the discretion
to sever a party at any time. See Fed. R. Civ. P. 21. The Seventh Circuit has
stated,
[T]his discretion allows a trial court to consider, in addition to
the requirements of Rule 20, other relevant factors in a case in
order to determine whether the permissive joinder of a party
will comport with the principles of fundamental fairness.
Chavez v. Ill. State Police, 251 F. 3d 612, 632 (7th Cir. 2001) (internal
quotations and citations omitted). Even if the requirements of Rule 20 are
found to be met, courts can still require Plaintiffs to proceed separately with
their claims if joinder would create unnecessary “prejudice, expense or
delay[.]” Id. at 632.
Here, the Court finds that allowing five plaintiffs to jointly proceed
will “foreseeably delay, complicate, and increase the costs of litigating the
claims.” See Williams v. Mitchell, No. 22-CV-2340-NJR, 2023 WL 5289441, at
*2 (S.D. Ill. Aug. 17, 2023). Indeed, the case has only just begun and
Plaintiffs, as identified above, have been unable to comply with the basic
requirement that all Plaintiffs sign every filing concerning their claims. See
Fed. R. Civ. P. 11. Further, Plaintiffs all must have exhausted their
administrative remedies in order to proceed. The exhaustion requirement
“must be individually adjudicated” even if Plaintiffs have similar claims.

The Court previously advised the individual Plaintiffs of the possible
consequences of proceeding jointly and gave them the opportunity to withdraw.
See ECF No. 7.
2

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See Garcia, 2023 WL 9051247, at *2. Analyzing the exhaustion requirement
for each Plaintiff separately may lead to separate scheduling deadlines and
unnecessary delay. Finally, although Plaintiffs’ claims are certainly similar
in nature, Plaintiffs experienced different treatment in relation to some of
their claims. For example, Plaintiffs identify their unique healthcare needs;
Plaintiff Washington has a severe skin disorder and mental health issues,
Plaintiff Cubero has serious dental issues and stomach pain, and Plaintiff
Jones has an advanced sinus condition. See ECF No. 1 at 6–11.
Given these factors together, the Court finds that severance of
Plaintiffs’ claims into five separate lawsuits is necessary in order for the
claims to move forward in a just and efficient manner. The Court will
reinstate Plaintiff Washington into this case as the first named plaintiff and
only his claims will proceed in this case going forward. The Court will
instruct the Clerk of Court to open four new cases for Plaintiffs Cubero,
Jones, Johnson, and Stinson to separately adjudicate their claims. Because
the current complaint deals with claims related to all Plaintiffs and the
proposed class, the Court will require that all five Plaintiffs must
individually file amended complaints on or before January 28, 2025. The
amended complaint should address only the claims relevant to each
individual Plaintiff and the conditions they personally experienced.
Plaintiffs are warned that the failure to file an amended complaint or
otherwise respond may result in the dismissal of that plaintiff’s case for the
failure to prosecute. Plaintiffs have already paid the IPFFs and therefore
will not be required to pay any new IPFFs. The Clerk of Court will be
instructed to file a copy of the complaint, ECF No. 1, and this Order in each
new case.

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Finally, the Court notes that this Order does not limit Plaintiffs from
continuing to cooperate and assist one another or coordinate their litigation
going forward. Additionally, it does not preclude future consolidation
under Federal Rule of Civil Procedure 42(a) if it became appropriate at a
later time in the proceedings. While the Court understands its ruling today
may be frustrating to Plaintiffs, it finds that “[s]eparate lawsuits will ‘secure
the just, speedy, and inexpensive determination of [this] proceeding.’”
Garcia, 2023 WL 9051247, at *2 (quoting Fed. R. Civ. P. 1).
Accordingly,
IT IS ORDERED that Plaintiffs Washington, Cubero, Jones,
Johnson, and Stinson’s motions to proceed without prepayment of the filing
fees, ECF Nos. 2, 3, 4, 5, 24 be and the same are hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff Elmhdati’s and Plaintiff
McDougle’s motions to proceed without prepayment of the filing fees, ECF
Nos. 6, 21, be and the same are hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff Washington’s motion to
file initial filing and to use release account funds, Plaintiff Washington’s
motion for reconsideration and request for Plaintiffs to proceed with
complaint as joinders, Plaintiff Jones’s motion to file initial filing and to use
release account funds, Plaintiff Johnson’s motion for reconsideration and
request for Plaintiffs to continue to proceed with original complaint as
joinders, Plaintiff Jones’s motion for reconsideration and request for all
plaintiffs to continue to proceed with original complaint as joinders,
Plaintiff Stinson’s motion to certify the class, Plaintiff McDougle’s motion
for reconsideration and request for all Plaintiffs to continue to proceed with
original complaint as joinders, Plaintiff McDougle’s motion to file initial
filing and request to use release account after funds are deducted from
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regular account, and Plaintiff Jones’s motion for reconsideration and
request for all plaintiffs to continue to proceed with original complaint as
joinders, ECF Nos. 39, 40, 41, 42, 44, 45, 47, 48, 49, be and the same are hereby
STRICKEN for their failure to comply with Rule 11;
IT IS FURTHER ORDERED that the Clerk of Court is instructed to
reinstate Plaintiff Washington in this case;
IT IS FURTHER ORDERED that the Clerk of Court is instructed to
open four separate cases for Plaintiffs Cubero (25-CV-22), Jones (25-CV-23),
Johnson (25-CV-24), and Stinson (25-CV-25) and to terminate Plaintiffs
Cubero, Johnson, and Stinson on the docket in this action; the Clerk of Court
shall file a copy of the complaint, ECF No. 1, and this Order in the four new
cases; Plaintiffs have already paid their IPFFs and will not have to pay any
additional IPFFs for the four new cases;
IT IS FURTHER ORDERED that all five Plaintiffs must individually
file amended complaints on or before January 28, 2025; The amended
complaints should address only the claims relevant to each individual
Plaintiff; Plaintiffs are warned that the failure to file an amended complaint
or otherwise respond may result in the dismissal of that plaintiff’s claims
for the failure to prosecute;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff Washington shall collect from his institution trust account the
$306.23 balance of the filing fee by collecting monthly payments from
Plaintiff’s prison trust 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
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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 the agency having custody of
Plaintiff Cubero shall collect from his institution trust account the $345.39
balance of the filing fee by collecting monthly payments from Plaintiff’s
prison trust 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 new case name and number assigned to Plaintiff Cubero’s
case (Cubero v. Wisconsin Department of Corrections et al., 25-CV-22). 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 the agency having custody of
Plaintiff Jones shall collect from his institution trust account the $349.11
balance of the filing fee by collecting monthly payments from Plaintiff’s
prison trust 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 new case name and number assigned to Plaintiff Jones’s
case (Jones v. Wisconsin Department of Corrections et al., 25-CV-23). 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;
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IT IS FURTHER ORDERED that the agency having custody of
Plaintiff Johnson shall collect from his institution trust account the $339.80
balance of the filing fee by collecting monthly payments from Plaintiff’s
prison trust 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 new case name and number assigned to Plaintiff Johnson’s
case (Johnson v. Wisconsin Department of Corrections et al., 25-CV-24). 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 the agency having custody of
Plaintiff Stinson shall collect from his institution trust account the $348.33
balance of the filing fee by collecting monthly payments from Plaintiff’s
prison trust 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 new case name and number assigned to Plaintiff Stinson’s
case (Stinson v. Wisconsin Department of Corrections et al., 25-CV-25). 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; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiffs are confined.

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Dated at Milwaukee, Wisconsin, this 7th day of January, 2025.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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