Smith v. GRAMS, WARDEN GREG et al

Filing 17

ORDER denying plaintiff's request for leave to proceed. Complaint dismissed for violating Rules 8 and 20. 3 Motion for Preliminary Injunction denied; 4 Motion to Amend Complaint denied ; 7 Motion to Appoint Counsel denied. Proposed amended complaint due by 10/8/09. Signed by Chief Judge Barbara B. Crabb on 9/17/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------D ER R IC K L. SMITH, ORDER Plaintiff, 0 9 - cv -3 8 7 - b b c v. G R E G GRAMS, Warden, JAN E DOE, SULIENE, Doctor, JA N E DOE Nurse #1, JA N E DOE Nurse #2, JA N E DOE Nurse #3, JAN E DOE, Security Director, D efendan ts. --------------------------------------------In this prisoner civil rights case, plaintiff has filed a document entitled "Emergency petition for restraining order & emergency injunctive relief." From a review of the

d ocu m e nts submitted by plaintiff, it is apparent that he is pursuing a civil suit against prison officials under 42 U.S.C. § 1983. In addition, plaintiff has moved for a preliminary

in ju nctio n , dkt. #3, for leave to amend his complaint, dkt. #4, and for appointment of counsel, dkt. #7. He has requested leave to proceed without prepayment of costs and has paid an initial partial filing fee.

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Because plaintiff is a prisoner, the 1996 Prison Litigation Reform Act requires the co urt to deny leave to proceed on his case if he has had three or more lawsuits or appeals dism issed for lack of legal merit, or if his complaint is legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks for money damages from a respondent w ho by law cannot be sued for money damages. 28 U.S.C. § 1915(e). However, plaintiff is also a pro se litigant, which means his complaint will be construed liberally as it is review ed for these potential defects. Haines v. Kerner, 404 U.S. 519, 521 (1972). In his proposed complaint, and later in his proposed amended complaint, plaintiff identifies three claims: that he is not receiving adequate medical treatment for his skin condition, that he is not receiving adequate medical treatment for his neck and head injury an d that the warden is denying his access to the courts. Several procedural problems prevent m e from screening his complaint to determine the merits of these claims. As a result of these pro blem s, I will dismiss plaintiff's proposed complaint and deny his request for leave to am end his complaint. For related reasons, I will deny his motion for a preliminary

in junctio n and motion for appointment of counsel. Plaintiff will have an opportunity to file a second amended complaint to address the problems with his complaint. He may then file a new motion for preliminary injunction pursuant to this court's procedures and move for appo intm ent of counsel, as explained below. U nder Fed. R. Civ. P. 8, plaintiff must provide adequate notice to defendants of the claim s he is asserting against them. To satisfy Rule 8 in this case, plaintiff must describe his m edical needs and explain how each defendant related to those claims was involved in

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pro viding him treatment for those needs or disregarded his requests for treatment. Plaintiff d oes not describe what any of the medical care providers knew about his need for treatment or provide many details about what each did to address those needs. Plaintiff's head injury treatm ent is mentioned only in passing and the skin condition treatment is described only generally except with regard to a couple of incidents involving skin cream that caused plaintiff to suffer an allergic reaction. Plaintiff must describe each incident of medical disregard or mistreatment with enough detail to put defendants on notice of what plaintiff says each one did to violate the Eighth Amendment. In addition, plaintiff does not describe how any defendant provided him treatment or disregarded his requests for treatment. Plaintiff does not mention defendant Suliene at all in his complaint (or amended complaint), although he names her as a defendant. As for th e "Jane Doe" nurses he names, he does discuss "nurses," but there is no way of no way of kn ow ing which nurse did what. In his proposed amended complaint, plaintiff should explain w hich "Jane Doe" nurse (##1-3) was involved in each incident of treatment or disregard. As for plaintiff's access to the courts claim, plaintiff does not describe how the w arden 's alleged interference has blocked or impeded his ability to proceed on any specific law suit. To proceed on this claim, plaintiff must provide sufficient details about one or more specific lawsuits and how the warden's alleged interference has hurt plaintiff's ability to litigate those lawsuits. Next, although plaintiff attaches several documents to his proposed amended com plaint such as grievances and patient reports, those documents cannot be considered part

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of his complaint. They fail to satisfy Rule 8's requirement that a complaint include only a "sh ort and plain" statement of the facts. Moreover, a stack of documents such as the one plaintiff attaches does not itself give defendants adequate notice of plaintiff's concerns with those documents. To the extent plaintiff has attached the documents because he thinks he needs to "prove up" his claims, he is mistaken. At this early stage, plaintiff may simply allege th o se facts he needs to state a claim. The need to provide evidence to support his claims will com e at a later date, when defendant files a motion for summary judgment or when the case pro ceeds to trial. R ule 8 is not the only problem with plaintiff's complaint (and amended complaint). P ursu an t to Rule 20 of the Federal Rules of Civil Procedure, a plaintiff may not bring u nrelated claims in a single lawsuit. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (co m plaint raising unrelated issues against different defendants "should be rejected" by district court in accordance with Rule 20). Only those claims that arise out of the same tran sactio n or occurrence or series of transactions or occurrences and that present questions of law or fact common to all may proceed together in a single lawsuit. Id. (There is an exception that allows unrelated claims to be joined if the defendants are identical or the d efen dan ts of one claim are a subset of the other, Fed. R. Civ. P. 18, but that rule does not app ear to apply to the facts of this case.) At this stage, it is impossible to tell whether plaintiff's claims against the Jane Doe nu rses may proceed in a single lawsuit, but it is safe to say that plaintiff's access to the courts claim is not related to his medical care claims and cannot proceed in the same lawsuit. To

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address this problem, plaintiff will have to choose whether in this case he wishes to pursue his access to the courts claim or his medical care claims and direct his second amended com plaint to one or the other. If he still wishes to pursue the claim he removes from this case, he will have to file a separate lawsuit. If, upon reviewing the second amended

com plaint, it continues to suffer from Rule 20 problems, the separate claims will have to be severed into separate lawsuits, each of which will be subject to a separate filing fee (starting w ith an initial partial payment) and subject to screening and the potential for a strike p ursu an t to 28 U.S.C. § 1915. Because plaintiff's proposed complaint fails to meet the requirements of Fed. R. Civ. P . 8 and 20, it will be dismissed. Because plaintiff's proposed amended complaint fares no better, I will deny plaintiff's motion for leave to amend his complaint as well. Plaintiff may have until October 8, 2009 in which to file a second amended complaint that satisfies these requ irem ents. On a related note, plaintiff should not expect that he will have unlimited opportunities to amend his complaint on an ongoing basis. (Before making his initial partial paym ent, plaintiff had already filed a complaint, an amended complaint and several "letters" in which he provides details related to his claim. Dkts. ##9, 11, 13.) A complaint cannot b e a moving target and defendants cannot be expected to piece together plaintiff's allegations fro m different "letters" and other documents. Plaintiff must file a single document that includes sufficient details to state a claim. At a later date, plaintiff will have an opportunity to amend his complaint once more to fill in the names of the Doe defendants, but other attem pts to add details through letters or supplement his complaint will likely be

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d is re ga r de d. T h is leaves plaintiff's motions for a preliminary injunction and appointment of co un sel. Because I will dismiss his complaint for failure to comply with Rules 8 and 20, th ese motions are moot. He may file these motions again after he submits a viable First, plaintiff's motion for a

com plaint, but he should keep the following in mind.

prelim inary injunction must follow this court's procedures. I have attached a copy of those p ro ced ures to this order. Second, before the court considers plaintiff's request for

appo in tm ent of counsel, plaintiff will have to show the court that he has made reasonable efforts to find a lawyer on his own and has been unsuccessful or that he has been prevented fr o m making such efforts. Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 19 92 ). Even if plaintiff makes such a showing, his request for appointment of counsel is likely to be denied at such an early stage in the proceedings. Appointment of counsel is appropriate in those relatively few cases in which it appears from the record that the legal an d factual difficulty of the case exceeds the petitioner's demonstrated ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff's stated concerns are related to his difficulty speaking in front of others (he describes his lisp and his anxiety problem s), but nothing suggests he would have an especially hard time performing the tasks req uired to litigate his case at its present stage (which might include making and responding to discovery requests and preparing responses to any motions defendant might prepare in the case).

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OR DER IT IS ORDERED that: 1. Plaintiff Derrick L. Smith's motion for leave to amend his complaint, dkt. #4, is D E N IE D . 2 . Plaintiff's request for leave to proceed in this action is DENIED and the complaint is DISMISSED because it is in violation of Fed. Rs. Civ. P. 8 and 20. 3. Plaintiff's motion for a preliminary injunction, dkt. #3, and motion for

app oin tm ent of counsel, dkt. #7, are DENIED as moot. 4. Plaintiff may have until October 8, 2009, in which to submit a proposed amended com plaint that conforms to the requirements of these rules. If, by October 8, 2009, plaintiff fails to respond to this order, the clerk of court is directed to close this case for plaintiff's failure to prosecute. 5. If, by October 8, 2009, plaintiff submits a revised complaint as required by this order, I will take that complaint under advisement for a determination whether plaintiff may p ro ceed in this action pursuant to 28 U.S.C. § 1915. E n tered this 17 t h day of September, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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