Hartung v. Raemisch

Filing 7

Order Dismissing 5 Proposed Amended Complaint pursuant to Fed. R. Civ. P. 20. Plaintiff has until 4/22/2010 to tell the court which lawsuit he wishes to litigate under this case number. Signed by District Judge Barbara B. Crabb on 4/9/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------W IL L IA M HARTUNG, ORDER Plaintiff, 1 0 -c v -7 5 -s lc 1 v. O FFIC ER PONTOW, OFFICER KRUGER, J.O . DONOVAN, LIEUTENANT SCHULTZ, T H ER ES A MURPHY, MICHAEL THURMAN, W IL L IA M GROSSHANS and RICK RAEMISCH. D efendan t. --------------------------------------------In this proposed civil action for injunctive and monetary relief, plaintiff William H artu ng contends that defendants Officer Pontow, Officer Kruger, J.O. Donovan, Lieutenant S chultz, Theresa Murphy, Michael Thurman, William Grosshans and Rick Raemisch violated his Eighth and Fourteenth Amendment rights. On March 1, 2010, I dismissed plain tiffs' original complaint because it violated Fed. R. Civ. P. 8 and gave plaintiff an o p po rtu nity to file an amended complaint that provided proper notice to defendants. Now before the court is plaintiff's proposed amended complaint.

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For the purpose of issuing this order, I am assuming jurisdiction over this case.

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Because plaintiff is a prisoner, the 1996 Prison Litigation Reform Act requires the co urt to deny plaintiff leave to proceed 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 defend a n t who by law cannot be sued for money damages. 28 U.S.C. § 1915(e). In a d dressin g any pro se litigant's complaint, the court must read the allegations of the co m p lain t generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). After reviewing p lain tiff's complaint, I conclude that he may not proceed at this time because his complaint vio lates Fed. R. Civ. P. 20. Accordingly, I will reserve ruling on the merits of his complaint un til he remedies the Rule 20 violations. In his amended complaint, plaintiff alleges the following facts.

A LL EG A T IO N S OF FACT P lain tiff is incarcerated at the Waupun Correctional Institution in Waupun, W i sc o n s i n . On September 8, 2007, Officer Rosenthal came to plaintiff's cell in the

segregation unit to take him to the shower. Rosenthal handcuffed plaintiff and plaintiff started to lose his balance. Several officers ran down the hall toward plaintiff, got on top of h im and told him to stop resisting. Plaintiff told the officers repeatedly that he was not resisting. Defendant Kruger hit plaintiff three times on his head, causing him to bleed. Kruger picked him up in a headlock position and dragged him down some stairs and into the

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strip cage. Officers cut off plaintiff's clothes and conducted a strip search. After the search w as completed, a nurse saw plaintiff. Then Kruger dragged plaintiff back up the stairs to an o bservatio n cell. Plaintiff's head was swelling, so he pushed the emergency button multiple tim es. After two hours, someone responded and asked plaintiff the nature of his emergency. P l a i n t i ff asked to see a nurse, but the responder told plaintiff that he had already had his chan ce to see a nurse and plaintiff needed to "put in a blue slip." Plaintiff told the responder that his head was in great pain, but the responder repeated that plaintiff needed to put in a blue slip. Plaintiff received conduct report #1816269 for the September 8, 2007 incident. H e was punished with 360 days'disciplinary segregation and 5 days' "adjustment." O n June 16, 2008, plaintiff pushed the emergency button and said he was having bad head pain. A moment later, a team of officers, including defendant Officer Pontow, came to plaintiff's cell. Plaintiff told Pontow that he needed to see a nurse. Pontow responded b y telling plaintiff to put his hands out of his cell. After plaintiff complied, Pontow

h an dcu ffed plaintiff, removed him from his cell, placed him in leg irons and began escorting him down the cell range. Pontow took plaintiff to an observation cell and chained him to th e cell. Defendant Lieutenant Shultz arrived and asked the officers about the situation. P lain tiff asked why he was being placed in observation for having migraines. Pontow resp o nd ed by placing plaintiff in a headlock, lying on top of him and yelling at him to stop resistin g. Plaintiff was in pain, started to cry and said he was not resisting. Defendant

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S hultz told plaintiff to "shut up" or Shultz would "tase" him. After two or three minutes, P on to w released plaintiff from the choke hold. Plaintiff was having difficulty breathing and ask ed to see a nurse. Shultz refused to call a nurse, saying that plaintiff was faking his pain, an d put plaintiff in the observation cell. About 20 minutes later a nurse came to see plaintiff. Plaintiff tried to tell the nurse that his head and hand were in serious pain, but the nu rse said that everything appeared to be all right and left. Plaintiff complained about his pain throughout the night and the next morning. In th e morning, a supervisor and officer took him to the health services unit. After examining p lain tiff's wrist, a doctor told plaintiff to keep his wrist elevated and take ibuprofen to reduce any pain and swelling. Since this incident, another doctor has ordered plaintiff to un dergo therapy for his right wrist. Plaintiff continues to suffer pain in his wrist that makes it difficult for him to sleep. The recommended ibuprofen causes him to have headaches and a n upset stomach. He has filed institutional grievances regarding his pain directed to defendan ts Murphy, Grosshans and Raemisch. Plaintiff received a conduct report written by defendant Pontow related to the June 16 , 2008 incident. Plaintiff was found guilty of battery and threats and was punished with 3 6 0 days' disciplinary segregation.

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D I S C U S S 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. As the court of appeals held in George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), plaintiff may join separate claims in a single law suit only if they are asserted against the same defendant, Fed. R. Civ. P. 18, or if the allegatio n s "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20. Thus, a claim that one set of prison officials used excessive force on plaintiff in September 2007 does not belong in the same lawsuit as a claim that a com pletely a different set of prison officials used excessive force or failed to provide plaintiff m ed ical treatment in an unrelated incident in June 2008. A pplying these rules to plaintiff's complaint, I conclude that plaintiff is raising claims that belong in two different lawsuits: L aw suit #1: Plaintiff's allegations regarding the September 2007 incident. L aw suit #2: Plaintiff's allegations regarding the June 2008 incident. Under 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

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it separately, he will be required to pay a separate filing fee of $350. Alternatively, plaintiff m ay choose to dismiss one of his lawsuits voluntarily. If he chooses this latter route, plaintiff w ill not owe an additional filing fee. A lawsuit dismissed voluntarily would be dismissed w ithout prejudice, allowing plaintiff to bring it at another time. P la in tiff should be aware that because it is not clear at this time whether he will pursu e both of his lawsuits, I have not assessed the merits of any of his claims. Once p la in t iff identifies the suit or suits he wants to continue to litigate, I will screen the individu al 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 importance of both of his potential lawsuits when choosing which of them he wishes to pursue.

OR DER IT IS ORDERED that 1. Plaintiff William Hartung's complaint is DISMISSED without prejudice for his failure to comply with Fed. R. Civ. P. 20. Plaintiff may have until April 22, 2010,to tell the cou rt which numbered lawsuit identified in the body of this opinion he wishes to litigate un der the number assigned to this case. 2. Plaintiff may have until April 22, 2010, in which to advise the court whether he

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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 April 22, 2010, 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 9t h day of April, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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