Carter v. Huibregtse et al

Filing 18

Order dismissing complaint for failure to comply with Fed. R. Civ. P. 8. Amended complaint due 4/2/2010. Signed by Chief Judge Barbara B. Crabb on 3/12/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------JA CK IE CARTER, ORDER Plaintiff, 0 9 - cv -4 3 7 - b b c v. PET ER HUIBREGTSE (Warden); MONICA H O R N ER (Security Director); Mrs. JUDITH H U IB R EG T S E (Sgt. Mail Room); Capt. BOISE; Lt. TOM; Ms. CHRISTINE BEERKIRCHER; C.O. SCULLION; MARY MILLER (HSU); Captain DYLAN RADTKE; Warden GREG GRAMS; Security Director JANEL NICKEL; Assist. Warden MARC CLEMENTS; Lieutenant D. LIPINSKI; ICE MARY LEISER; Sergeant KOTTA; Captain CANFEILD; M.D. BURTON COX JR.; Assist Warden GARY B O U G H T O N ; Sergeant SICKENGER; R.N. JOLINDA WATERMAN; Captain MASON; IC E KELLY TRUMM; Sergeant CARPENTER; ICE ELLEN K. RAY; C.O. TAYLOR; Capt. SHARPE; C .O . MULLUSK; C.O. FREDRICK; C.O. GABENGER; C .O . COKROFT; R.N. DARREN FOSTER; C.O. BRINKMEN; C.O. JONES; R.N. MARIAN H AR T M AN ; C.O. PEAK; C.O. FINNELL; C.O. BELZ Sr.; Sgt. BLOYER; C.O. LEFTLER; C.O. BELZ Jr.; R.N. DEBORAH CAMPELL; and WDOC Secretary RICK RAEMISCH, D efendan ts.

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--------------------------------------------Plaintiff Jackie Carter, a prisoner at the Columbia Correctional Institution in Portage, W isconsin, has brought this civil complaint alleging that staff at the Columbia Correctional In stitu tio n and Wisconsin Secure Program Facility have violated his Eighth Amendment rights against cruel and unusual punishment. Also, he seeks leave to proceed in forma pau peris. I dismissed plaintiff's original complaint because his vague allegations violated Fed. R. Civ. P. 8 and 20. Now plaintiff has filed an amended complaint. I conclude that plaintiff's amended complaint continues to violate Rule 8 and possibly Rule 20 as well. In ad ditio n , because plaintiff has struck out under 28 U.S.C. § 1915(g), he is disqualified from pro ceeding in forma pauperis on claims other than those containing allegations that he is in im m in en t danger of serious physical harm. Therefore, I will allow plaintiff a final

o ppo rtunity to amend his complaint and give him the chance to explain how his claims against staff at the Columbia Correctional Institution qualify under the imminent danger e x c e p ti o n .

D I S C U S S IO N 1 . Fed. R. Civ. P. 8 and 20 As is the case with many of plaintiff's filings in his several cases currently before the court, plaintiff's amended complaint contains extremely vague claims that staff at the

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C o lo m b ia Correctional Institution and Wisconsin Secure Program Facility "abused" him and "subjected him to torture," but he does not provide the names of the individual defendants w ho abused him or explain what these defendants actually did to abuse him. Also, plaintiff giv e s the names of officials who "allowed" staff to abuse him but provides very little explanation about how each of these officials knew about plaintiff's abuse and failed to act. As I have previously explained to plaintiff, under Fed. R. Civ. P. 8, a complaint must include a "short and plain statement of the claim showing that the pleader is entitled to r e li e f . " Although the "notice pleading" of Rule 8 does not require "detailed factual

allegations" supporting each element of a claim, it is not enough for a pleader to make "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statem ents." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). The pleader must provide sp ecific allegations that, if true, make plaintiff's claim for relief more than speculative, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). I will dismiss plaintiff's amended com plaint because it continues to violate Rule 8, but I will give him a final chance to submit a complaint that complies with the rule. Plaintiff should draft his second amended

co m plaint as if he is telling a story to people who know nothing about his situation. Someone readin g the complaint should be able to answer the following questions: · What are the facts that form the basis for plaintiff's claims? · What did each defendant do that makes him liable for violating plaintiff's rights?

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· How was plaintiff injured by a particular defendant's conduct? It is particularly important that plaintiff give the names of the defendants who he claims abu sed him; it is not enough for him to claim he "was abused" by unnamed staff. If plaintiff do es not know the names of the defendants who abused him, he should add "John Doe" defendants to the caption and include allegations explaining that he does not know the nam es of those who abused him. B ecause plaintiff seeks relief against staff members at two different Wisconsin prisons, it is extremely likely that plaintiff's complaint also violates Fed. R. Civ. P. 20, which limits pro per claims in a single complaint to those "arising out of the same transaction, occurrence, or series of transactions or occurrences." If plaintiff files a second amended complaint that com plies with Rule 8 but violates Rule 20, I will sever the separate claims into separate law suits. At that point, plaintiff will have to decide which of the separate lawsuits he wishes to pursue. I will give plaintiff until April 2, 2010 to file his second amended complaint. If his co m p lain t again fails to comply with Rule 8, I will dismiss his claims with prejudice for failure to state a claim upon which relief can be granted. If plaintiff fails to submit a proposed amended complaint by April 2, 2010, I will direct the clerk of court to close the case.

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2. Imminent danger T here is another hurdle for plaintiff to overcome in order to proceed in forma pau peris in this case. On at least three prior occasions, plaintiff was denied leave to proceed in forma pauperis in lawsuits that were legally frivolous. Carter v. Frank, 07-cv-713-bbc (W .D . Wis. June 4, 2008); Carter v. Raemisch, 09-cv-75-wcg (E.D. Wis. Mar. 3, 2009); and C arter v. Huibregtse, 09-427-bbc (W.D. Wis. Mar. 3, 2010). Therefore, under 28 U.S.C. § 1915(g), plaintiff may proceed in forma pauperis only on claims alleging that he is in im m inen t danger of serious physical injury. "The `imminent danger' exception to § 1915(g)'s `three strikes' rule is available `for genuin e emergencies,' where `time is pressing' and `a threat ... is real and proximate.'" H eim erm an n v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (quoting Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)). Allegations of past harm do not suffice; the harm must be im m inen t or occurring at the time the court considers his request for leave to proceed in form a pauperis. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Plaintiff is attempting to bring claims against staff at the Columbia Correctional Institution and Wisconsin Secure Program Facility. Plaintiff is no longer incarcerated at the W iscon sin Secure Program Facility, so his claims against staff members there do not qualify un der the imminent danger exception. It is unclear whether plaintiff's claims against staff at the Columbia Correctional Institution could qualify under the imminent danger exception

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because his claims refer to events that took place in early 2009, before his current stint there. (H e was transferred to the Wisconsin Secure Program Facility in early 2009 and then transferred back to the Columbia Correctional Institution in August 2009.) Because it is likely that the Columbia defendants are still at the institution, it is possible that plaintiff con tinues to face abuse at the present time. However, if any of those claims against these d efen dan ts are to qualify under the imminent danger exception, plaintiff will have to amend his complaint to explain what imminent danger he faces at present. Even if none of plaintiff's claims qualify under the imminent danger exception, he is free to pursue his case as a paying litigant. To do so, he must submit a check or money order m ade payable to the clerk of court for $338.70, which is the remainder of the $350 filing fee he owes in this case. In the usual case, I would set a deadline for plaintiff to submit these fu nds, but because it is still unclear whether he can state an imminent danger claim, I will w a it until I receive plaintiff's second amended complaint before setting a deadline for paym ent of the full filing fee.

ORDER IT IS ORDERED that 1. Plaintiff's proposed amended complaint, dkt. #16, is DISMISSED without

prejudice for plaintiff's failure to comply with Fed. R. Civ. P. 8.

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2.

Plaintiff will have until April 2, 2010 to file a second proposed amended

com plaint. If his complaint again fails to comply with Rule 8, I will dismiss his claims with p reju dice for failure to state a claim upon which relief can be granted. If plaintiff fails to subm it a proposed amended complaint by April 2, 2010, I will direct the clerk of court to close the case. E n tered this 12t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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