Tran et al v. Timberlake et al

Filing 13

ORDER dismissing 12 Proposed Amended Complaint filed by Eric Fankhauser, Hung Nam Tran. (Amended Pleading due by 11/6/2009.) Signed by Chief Judge Barbara B. Crabb on 10/23/2009. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------H U N G NAM TRAN and ERIC L. FANKHAUSER, ORDER Plaintiffs, 0 9 - cv -5 0 7 - b b c v. KA R EN TIMBERLAKE, Secretary of the W iscon sin Department of Health Services, S T EV E WATTERS, Director at Sandridge Secure Treatment Facility and BYRON BARTOW, Director at Wisconsin R esource Center, D efendan ts. --------------------------------------------In an order entered October 5, 2009, I dismissed plaintiffs' original complaint because it failed to comply with Fed. R. Civ. P. 8 and told plaintiffs that they could file an am ended complaint to address the problems with the original complaint. Among other p ro blem s with plaintiffs' original complaint, it included conclusory statements instead of factu al allegations and failed to include allegations about how each defendant's actions affected each plaintiff. Plaintiffs' amended complaint does slightly better, but it still falls short. I will dismiss the amended complaint for failure to comply with Rule 8 and give

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plaintiffs one last opportunity to file a pleading that complies with the rule. In their amended complaint, plaintiffs allege that they are civilly committed under the Sexually Violent Persons Commitment Act, Wis. Stat. ch. 980. Most of plaintiffs' allegations can be organized into three groups. First, there is a list of conclusory statements sum m arizing defendants' "failures," ¶¶ 13(a)-(g) and 24(a)-(e), including, among other things, a failure to "properly train staff," "draft and implement fair and reasonable grievance pro cedures," and "afford reasonable opportunities to all residents for educational, religious, vo catio n al and recreational activities." As I said in the previous order, dkt. #11, at 3, conclusory statements such as these must be disregarded. What plaintiffs need to allege are facts from which these conclusions can be inferred, not the conclusions themselves. S eco n d, there is a long list of restrictions plaintiffs allegedly suffer, ranging from lo ck do w n times to coerced "waivers," and a list of general statements about the conditions o f confinement within the Wisconsin Resource Center and Sand Ridge facilities. As with the first list, most of the allegations are conclusory, including, among other things, plaintiffs' allegations about things that are "adequate," "excessive," "meaningful," "most restrictive," "unreaso na ble," "unnecessary," "force[d]," "not provided with the essential elements," "failed," "unaware or indifferent," "more like prisoners," "inappropriately," "unrelated to," "u nreaso n ab ly restrictive," "substantial departure," and "substantially below [certain] [s]tan dards." These are conclusions unsupported by factual allegations.

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T h is list includes other problems, as well. For one, many of the allegations, where not conclusory, are vague or overly general. To take one example, plaintiffs allege that they are no t provided with certain "treatments ordered by the court." What treatments are they talking about? As another example, plaintiffs allege they are "subject to segregation, social isolation and physical assaults." By whom? In what ways? The remaining allegations are legal arguments. As I explained before, dkt. #11, at 3, legal arguments are unnecessary. A fter scraping away the legal arguments, conclusory statements and vague or overly general statements, what is left are a few statements about the ways plaintiffs are restricted, su ch as in lockdown time, their inability to pursue independent business initiatives, their inability to eat in the cafeteria (instead of in their housing unit) and their inability to use the dayro om . However, even the few remaining factual allegations fail in one important respect: th ey do not tie defendants to plaintiffs' restrictions. Defendants are three high-ranking officials: the Secretary of the Department of Health Services and the two directors of the tw o separate facilities housing sexually violent persons. Moreover, defendants' only alleged role is that they have "established and maintained" the treatment policies plaintiffs are challengin g and are "collectively responsible" for those policies. What remains unclear is w h a t role each defendant plays in forming and maintaining these policies. How are the restriction s plaintiffs identify a part of the policies formed and maintained by each defendan t? This is particularly important because at least some of the restrictions plaintiffs

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identify do not appear to be policies at all, but rather the actions of individual officials. (The alleged ly unreasonable searches and use of excessive force are one example.) Moreover, one defendan t is a director at the Wisconsin Resource Center; plaintiffs are at the Sand Ridge S ecure Treatment Facility). Plaintiffs do not explain how that defendant (Byron Bartow) has affected the policy at plaintiffs' treatment facility or was involved in any other way in plaintiffs' restrictions. Likew ise, plaintiffs' generalities regarding each of their "restrictions" suggests that they are struggling to identify particular incidents in which either of them has suffered a given restriction . They will have to do more to describe their own particular restrictions if they ho pe to establish standing for the challenges to defendants' policies. One final matter requires attention. The return address of the envelope used to file the proposed amended complaint is for Marcellous Walker, suggesting that plaintiffs may b e receiving Walker's assistance. Walker brought a lawsuit similar to this one challenging policies related to the Sexually Violent Persons Commitment Act. Walker v. Hayden, 07-cv675-b b c . That lawsuit was ultimately dismissed on the merits for failure to state a claim. Id., slip op., dkt. #71 (W.D. Wis. June 18, 2008). In Walker's lawsuit, his original

com plaint included a number of plaintiffs who did not sign the complaint and it appeared that Walker intended to proceed on their behalf. Plaintiffs Tran and Fankhauser were am on g those plaintiffs. Because they did not join that lawsuit, there is no preclusive effect

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to the dismissal of that case. However, to the extent Walker is the driving force behind this law suit, he should be aware that the case is about the named plaintiffs. The allegations must be about how the policies affect them; moreover, any favorable outcome in this case will not app ly to Walker, only to the named plaintiffs. On a related note, the named plaintiffs must keep in mind that this is their case. They sh ou ld make sure they read carefully everything they receive from the court and everything they sign, if they receive help with drafting their documents. Under Fed. R. Civ. P. 11(b), w h en a party submits something to the court, he is certifying that the document "is not being presented for any improper purpose," that all factual allegations have evidentiary supp ort or are likely to have support "after a reasonable opportunity for further investigation" and all legal contentions "are warranted by existing law or by a nonfrivolous argum ent" for extending current law. Any party who violates this rule may be subject to sanction s, including monetary ones. Plaintiffs may have one last opportunity to submit a complaint that complies with R u le 8. They should read this order carefully to insure that they include the proper

allegatio ns in their complaint. If their second amended complaint fails to comply with Rule 8, it will be dismissed with prejudice for failure to state a claim.

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OR DER IT IS ORDERED that 1. Plaintiffs Hung Nam Tran's and Eric L. Fankhauser's amended complaint is D I S M IS S E D because it is in violation of Fed. R. Civ. P. 8. 2. Plaintiffs may have until November 6, 2009, in which to submit a proposed secon d amended complaint that conforms to Rule 8. If, by November 6, 2009, plaintiffs fail to respond to this order, the clerk of court is directed to close this case for plaintiffs' failure to prosecute. 3. If, by November 6, 2009, plaintiffs submit a proposed second amended complaint as required by this order, I will take that complaint under advisement for screening pursuant to 28 U.S.C. § 1915. E n tered this 23r d day of October, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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