Williams v. Raemisch et al

Filing 5

ORDER denying 4 Motion for Reconsideration. Plaintiff to identify by 10/20/09 which lawsuits he wishes to pursue or submit an amended complaint that complies with Fed. R. Civ. P. 8 and 20. Signed by Chief Judge Barbara B. Crabb on 10/5/09. (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 under the Eighth Amendment. On September 18, 2009, I told plaintiff that his initial co m p lain t violated Fed. R. Civ. P. 20, and I gave him until October 2 to advise the court of th e claims on which he wished to proceed. Dkt. #3. Instead of correcting his Rule 20

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pro blem s, plaintiff has filed a motion for reconsideration, asking the court to reconsider its "erron eou s" application of Rule 20. Plaintiff's motion for reconsideration will be denied. In his complaint, plaintiff alleges the following facts.

A LL EG A T IO N S OF FACT A. The Parties Plaintiff Derek Williams is a prisoner at the Green Bay Correctional Institution in G reen Bay, Wisconsin. Defendant Rick Raemisch is Secretary of the Wisconsin Department of Corrections. Defendant William Pollard is the warden of the Green Bay Correctional I n stitu ti o n . Defendant Welcome Rose is an investigator in the Inmate Complaint

Examination Department. Defendant Lt. Campbell is a hearing officer at the Green Bay C orr ection al Institution and defendant Diane Longsine is a program assistant in the Inmate C om plaint System Office.

B. Events Related to Plaintiff's Alleged Fight with Another Inmate O n December 12, 2008, plaintiff was accused of fighting with a white inmate. On D ecem ber 16, 2008, plaintiff was served with an Adult Major Conduct Violation Report, an d was told that a disciplinary hearing regarding the incident would be held on December 29 . Before the hearing, plaintiff attempted to gather witnesses and evidence, including a

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security videotape, to prove that he did not fight with the white inmate. A staff advocate m et with plaintiff to discuss the hearing, but because there was some confusion about w hether the staff advocate was correctly assigned to plaintiff's case, the advocate refused to accept the list of requested evidence and witness-contact questions that plaintiff had prep ared for his defense. Defendant Lt. Campbell presided over the disciplinary hearing. Before the hearing b egan , plaintiff requested that the hearing be postponed because the staff advocate did not gath er the witnesses or evidence that plaintiff had requested. Campbell refused to postpone the hearing, stating that "it didn't matter what the tape showed," because he already "knew w hat went on here." At the hearing, plaintiff repeatedly denied fighting, and submitted a tw o-page written statement in his defense. Campbell accepted only one page of the

statem ent, returning the second page to plaintiff. At the conclusion of the hearing, Campbell found plaintiff guilty of fighting and issued a punishment of 120 days' disciplinary separation in the segregation unit. This sentence was 30 days longer than is normally given for fighting. O n December 30, 2008, the white inmate who was allegedly involved in the fighting inciden t had a separate disciplinary hearing after which he was also found guilty of fighting. As punishment, the white inmate lost 61 days of recreation. The white inmate had a worse in stitu tio n al conduct record than plaintiff, but unlike plaintiff, the white inmate did not

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have to spend any time in the segregation unit. Plaintiff appealed his sentence to defendant William Pollard. Pollard reduced

p lain tiff's charge from "fighting" to "disruptive conduct," and reduced his sentence to 60 d ays' disciplinary separation in the segregation unit. Plaintiff appealed his sentence again. O n March 26, 2009, defendant Welcome Rose issued a recommendation that plaintiff's app eal be dismissed because Pollard had agreed to grant plaintiff a new disciplinary hearing. H ow ever, plaintiff never received a new disciplinary hearing, so he submitted a grievance to defendant Rick Raemisch. Plaintiff has not received a response from Raemisch. M eanw hile, from December 12, 2008 to February 6, 2009, plaintiff was incarcerated in the segregation unit, where a 60-watt lightbulb shone 24 hours a day, the temperature was b etw e en 40 and 50 degrees, surrounding inmates were constantly screaming and beating on the walls and plaintiff was denied accessed to clinical staff for his mental health problems. Plaintiff complained to defendant Campbell that he was cold, suffering from sleep depriv atio n, headaches, depression and loss of appetite, but nothing changed. Campbell deliberately ignored plaintiff's complaints. Plaintiff then filed grievances regarding the segregatio n conditions, but defendant Pollard dismissed the complaints and defendant R aem isch "rubber-stamped" Pollard's dismissal.

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C . Plaintiff's Visitation Rights In 2003, while incarcerated at Waupun Correctional Institution, plaintiff's visitation rights had been suspended because one of his visitors had attempted to deliver prohibited item s to him through the assistance of a staff member. After he was transferred to Green B a y, plaintiff sought reinstatement of his visitation rights. In 2008, plaintiff regained nocon tact visitation privileges. In 2009, plaintiff requested full contact visitation privileges fro m defendant Pollard, noting that no white prisoner has ever been deprived visitation righ ts for more than five years, or been restricted to no-contact visitation for more than one year. Defendant Pollard denied the request and plaintiff filed an inmate complaint.

D e fen dan t Diane Longsine filed plaintiff's complaint, but first she censored it, removing lan guage plaintiff had used to describe the racially offensive treatment that he was receiving. Plainti ff appealed the denial of visitation rights and Longsine's censorship. Defendants Po llard, Rose and Raemisch dismissed plaintiff's appeals.

OPINION A s I previously explained to plaintiff, Rule 20 prohibits a plaintiff from asserting un related claims against different defendants or sets of defendants in the same lawsuit. M ultiple defendants may not be joined in a single action unless the plaintiff asserts at least o n e claim to relief against each defendant that arises out of the same transaction or

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occurren ce or series of transactions or occurrences and presents questions of law or fact com m on 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). Plaintiff alleges that multiple constitutional violations were committed by multiple people. In his motion for reconsideration, however, plaintiff contends that his right to relief arises out of a series of related occurrences and there is a common issue of law or fact that must be resolved as to all parties. Specifically, plaintiff contends that all of his claims are connected by defendants Rick Raemisch's, William Po llard's and Welcome Rose's decisions to "turn[] a blind eye to [the] well documented histo ry and problem of race based discriminatory treatment within the State Prison system" an d their "inaction on addressing [the] continuing regime of racial terrorism." Plaintiff seems to be relying on one of two theories. First, plaintiff contends that defend an ts Raemisch, Pollard and Rose violated his right to equal protection by turning a " b li n d eye" to defendants Lt. Campbell's and Diane Longsine's violations of plaintiff's co nstitutio nal rights. Thus, plaintiff argues, Campbell and Longsine are "procedurally r equired" parties because their behavior provides the necessary evidence to show that R a em isch , Pollard and Rose are liable in their supervisory capacity for racial discrimination. H ow ever, whether defendants Raemisch, Pollard and Rose "turned a blind eye" to either C a m p b ell's or Longsine's behavior is not an issue of law or fact that is common to all of the defendan ts. There is still no connection between plaintiff's claims against Campbell and his

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claim s against Longsine. As I explained to plaintiff in September 18, 2009 order, dkt. #3, claim s against Campbell and Longsine must be brought in two separate lawsuits. Plaintiff's second theory is that defendants Raemisch, Pollard and Rose operate a policy of "racial terrorism," and Campbell and Longsine are subordinate employees who im plem ent the policy by discriminating against inmates based on race. As proof, plaintiff has attached an April 2, 2002 letter written by a state senator to the warden of Taycheedah Co rrectional Institution regarding racial and sexual discrimination of female inmates at T aycheedah and a newspaper article discussing a federal investigation at Columbia C o rrectio n al Institution. Plaintiff argues that Rule 20 is satisfied because there is a question o f law or fact common to all parties, namely, whether defendants Raemisch, Pollard and R ose promote a policy of racial discrimination. However, plaintiff has alleged no facts to suggest that Raemisch, Pollard and Rose have personally fostered and encouraged a policy o f racial terrorism. Evidence of possible discrimination at other institutions alone does not establish plausible grounds for inferring that a department-wide policy exists. In other words, plaintiff's theory that a pattern and policy of racial discrimination ties h is claims together is one that violates Fed. R. Civ. P. 8, which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." The primary purpose of this rule is rooted in fair notice. The standards enunciated b y the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

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(20 07 ) and Ashcroft v. Iqbal, __ U.S.__, 129 S. Ct. 1937 (2009), instruct litigants that they m ust plead "factual content that allows the court to draw the reasonable inference that the defendan t is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949; see also Hecker v. Deere & Co., 569 F.3d 708, 710-11 (7th Cir. 2009). Because plaintiff's bald assertion of a policy of "racial terrorism" fails to satisfy Rule 8 he cannot rely on it to transform his separate and distinct allegations of constitutional violations into "a series of transactions" that satisfies Rule 20. Although I will deny plaintiff's motion for reconsideration, I will extend the deadline in which plaintiff may amend his complaint and advise the court what claims he wishes to prosecute under the number assigned to this case. As I explained to plaintiff in the

S eptem ber 18, 2009 order, dkt. # 3, his claims belong in two separate lawsuits:

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L aw su it #1: Plaintiff contends that (1) defendant Lt. Campbell violated 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 e ll 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 plaintiff'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) defendan ts 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 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. If plaintiff chooses to pursue the other lawsuit separately, he will be required to pay a separate filing fee of $350. If plaintiff wishes to combine his two lawsuits without p ayin g another filing fee, he will have to dismiss the defendants who prevent him from com plying with Rule 20. For example, plaintiff could dismiss his claims against defendants C a m p b ell and Longsine and proceed on all claims against defendants Raemisch, Pollard and R ose. Alternatively, plaintiff may choose to dismiss one of his lawsuits voluntarily. If he cho oses this latter route, plaintiff will not owe an additional filing fee. A lawsuit dismissed vo lun tarily would be dismissed without prejudice, allowing plaintiff to bring it at another tim e.

OR DER IT IS ORDERED that

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1 . Plaintiff Derek Williams's motion for reconsideration of the September 18, 2009 order, dkt. # 4, in which I found plaintiff's complaint to be in violation of Fed. R. Civ. P. 20 is DENIED. 2. Plaintiff may have until October 20, 2009, to either identify for the court which num bered lawsuit identified in the body of this opinion he wishes to proceed on under the n um b er assigned to this case, or submit an amended complaint that complies with Fed. R. C iv. P. 8 and 20. 3. Plaintiff may have until October 20, 2009, in which to advise the court whether he will 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 20, 2009, I will enter an order dism issing the lawsuit as it presently exists without prejudice for plaintiff's failure to p r o s e c u t e. E n tered this 5t h day of October, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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