Williams v. Raemisch et al

Filing 3

ORDER that plaintiff's complaint violates Rule 20. Plaintiff to identify by 10/2/09 which lawsuits he wishes to pursue. 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 E R EK WILLIAMS, ORDER Plaintiff, 0 9 - cv -4 8 5 - b b c v. M r. RICK RAEMISCH, Secretary; M s. WELCOME ROSE, Investigator; M r. WILLIAM POLLARD, Warden; L T . CAMPBELL, Security Staff; M s. DIANE LONGSINE, Program Assistant; A ny and ALL JOHN/JANE DOE Unknown Parties Subordinate to "Warden"; D efendan ts. --------------------------------------------In this prisoner civil rights case for monetary, injunctive and declaratory relief brought p u r s u a n t to 42 U.S.C. § 1983, plaintiff Derek Williams alleges violations of his rights to equ al protection and due process under the Fourteenth Amendment, his right to free speech u nd er the First Amendment and his right to be free from cruel and unusual punishment un der the Eighth Amendment. Plaintiff has paid the $350 filing fee. Because plaintiff is a prisoner, the 1996 Prison Litigation Reform Act requires the cou rt to deny him leave to proceed if his complaint is legally frivolous, malicious, fails to

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state a claim upon which relief may be granted or asks for money damages from a defendant 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 e d for these potential defects. Haines v. Kerner, 404 U.S. 519, 521 (1972). Having review ed plaintiff's complaint, I conclude that he may not proceed at this time because his com plaint violates Fed. R. Civ. P. 20. Accordingly, I will reserve ruling on the merits of his com plaint until he remedies the Rule 20 violations.

O PIN IO N R u le 20 prohibits a plaintiff from asserting unrelated claims against different defendan ts or sets of defendants in the same lawsuit. Multiple defendants may not be joined in a single action unless the plaintiff asserts at least one claim to relief against each defendant that arises out of the same transaction or occurrence or series of transactions or occurrences an d presents questions of law or fact common to all. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); 3A Moore's Federal Practice § 20.06, at 2036-45 (2d ed.1978). Although Fed. R. Civ. P. 18 allows a party to join unrelated claims against defendants in a suit, this rule applies only after the requirements for joinder of parties have been satisfied under Rule 20. Intercon Research Association, Ltd. v. Dresser Industries, Inc., 696 F.2d 53, 57 (7th Cir. 1983) (quoting 7 Charles Alan Wright et al., Federal Practice &

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Pro cedure). This means that the core set of allowable defendants must be determined under R ule 20 before a plaintiff may join additional unrelated claims against one or more of those d efen dan ts under Rule 18. In addition, under Rule 18, a party cannot join claims involving an y defendant outside the group identified under Rule 20. Fo r example, a plaintiff could have one lawsuit for breach of contract against defendants Smith, Jones, Wilson and Garcia and an unrelated lawsuit for personal injury against defendants Smith, Jones and Brown. If the plaintiff wanted to proceed with both claim s in the same lawsuit under Rules 18 and 20, he would have to dismiss Wilson and G arcia from the first lawsuit or he would have to dismiss Brown from the second lawsuit. In this way, the same "core" of defendants (Smith and Jones) is common to both claims. Applying these rules to plaintiff's complaint, I conclude that plaintiff is raising claims that belong in two different lawsuits:

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L aw su it #1: Plaintiff contends that (1) defendant Lt. Campbell vio lated plaintiff's Fourteenth Amendment procedural due process righ ts by holding an unfair disciplinary hearing to punish plaintiff for alleged ly fighting with a white inmate; (2) after the hearing, defendant C a m p b ell violated plaintiff's equal protection rights by sentencing plaintiff to a harsher punishment than was given to the white inmate invo lved in the same incident; (3) defendant Campbell violated p la in tiff's right to be free from cruel and unusual punishment by sentencing him to the segregation unit, which was unbearably cold, b righ t, noisy and aggravated his mental health problems; and (4) defendants Rick Raemisch, Welcome Rose and William Pollard violated plaintiff's due process, equal protection and Eighth A m en dm en t rights by failing to investigate and improperly rejecting

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p lain tiff's complaints of an unfair hearing, racial discrimination and harsh conditions in the segregation unit.

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L aw suit #2: Plaintiff contends that (1) defendant Pollard violated p lain tiff's equal protection rights by imposing visitation restrictions on plaintiff which are more severe than any restrictions imposed on white inm ates; (2) defendant Longsine violated plaintiff's right to free speech b y unlawfully censoring his complaints regarding his visitation privileges; and (3) defendant Rose and Raemisch violated plaintiff's rights to equal protection by failing to investigate and improperly dism issing plaintiff's complaint of racial disparity.

U nder George, I may apply plaintiff's filing fee to only one of these lawsuits. Plaintiff will have to choose which lawsuit that is. That lawsuit will be the only lawsuit assigned to this case number. As for the other lawsuit, plaintiff has a more difficult choice. If he chooses to pursue it separately, he will be required to pay a separate filing fee of $350. If plaintiff wishes to com bine his two lawsuits without paying another filing fee, he will have to dismiss the defendants who prevent him from complying with Rule 20. Alternatively, plaintiff may ch o o se to dismiss one of his lawsuits voluntarily. If he chooses this latter route, plaintiff will not owe an additional filing fee. A lawsuit dismissed voluntarily would be dismissed without prejudice, allowing plaintiff to bring it at another time. Plain tiff should be aware that because it is not clear at this time whether he will p u r su e both of his lawsuits, I have not assessed the merits of any of his claims. Once p lain tiff identifies the suit(s) he wants to continue to litigate, I will screen the individual

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actions that remain, as required under 28 U.S.C. § 1915(e)(2). Because plaintiff faces an additional filing fee for a second lawsuit, he should consider carefully the merits and relative im po rtance of both of his potential lawsuits when choosing which of them he wishes to pursu e.

OR DER IT IS ORDERED that: 1. Plaintiff Derek Williams may have until October 2, 2009, to identify for the court w hich numbered lawsuit identified in the body of this opinion he wishes to proceed on under the number assigned to this case. 2. Plaintiff may have until October 2, 2009, in which to advise the court whether he w ill prosecute the remaining lawsuit or withdraw it voluntarily. If plaintiff dismisses a law suit voluntarily, he will not owe a filing fee. If plaintiff advises the court that he intends to prosecute a second lawsuit, he will owe a separate $350 filing fee. 3. If plaintiff fails to respond to this order by October 2, I will enter an order d ism issin g the lawsuit as it presently exists without prejudice for plaintiff's failure to

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p r o s e c u t e. 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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