El Ghadban, Omar v. State of Wisconsin et al

Filing 6

ORDER dismissing 1 complaint pursuant to Fed. R. Civ. P. 8. Amended complaint due 11/26/2012. Signed by District Judge William M. Conley on 11/2/2012. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

OMAR NABIL El GHADBAN,
Plaintiff,

OPINION AND ORDER

v.
STATE OF WISCONSIN, DANE COUNTY JAIL,

11-cv-40-wmc

SGT. PRICE and LT. BAHLER,
Defendants.

This is a proposed civil action in which plaintiff Omar Nabil El Ghadban alleges that
he was denied his right to practice his Muslim religion while housed in Dane County Jail.
El Ghadban asks for leave to proceed under the in forma pauperis statute, 28 U.S.C. § 1915.
From the financial affidavit El Ghadban has given the court, the court concludes that he
unable to prepay the full fee for filing this lawsuit. El Ghadban has made the initial partial
payment of $8.17 required of him under § 1915(b)(1).
The next step is determining whether El Ghadban’s proposed action is (1) frivolous
or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks money
damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Unfortunately, the court cannot reach the merits of plaintiff's claims at this time because his
pleading does not provide enough information to support his claims, as required by Rule 8
of the Federal Rules of Civil Procedure. However, the plaintiff will be given an opportunity
to submit an amended complaint that provides more information to support his claim.

ALLEGATIONS OF FACT
In addressing any pro se litigant’s complaint, the court must read the allegations of
the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). Based on his
complaint, the court will assume the following facts for purposes of this screening order.
Plaintiff Omar Nabil El Ghadban is an inmate confined at the Dane County Jail.
Defendants Sgt. Price and Lieutenant Bahler are employed at the Dane County Jail.
Plaintiff’s cell has a toilet in it. El Ghadban is a Muslim. According to Islamic law,
he cannot worship, study, pray, pronounce the name of Allah or read his Qur!an in a
bathroom, which means that he cannot do these things in his cell. El Ghadban asked the jail
chaplain to bring an Iman from the Mosque to advise him what to do in the situation, but
the chaplain ignored his requests. El Ghadban was unable to practice his religion for over
three and a half months.

OPINION
Under Rule 8(a)(2), a complaint must include (1) a short and plain statement of the
grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and (3) a demand for the relief sought. Rule 8 also requires
that the complaint contain enough allegations of fact to make a claim for relief plausible on
its face. Aschcroft v. Iqbal, 555 U.S. 662, 678-79 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
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Plaintiff has made a short and plain statement of his claim, alleging that he was
denied the right to practice his religion at the Dane County Jail. This allegation is sufficient
to support an inference that his rights under the First Amendment are implicated. Kaufman
v. McCaughtry, 419 F.3d 678, 683-84 (7th Cir. 2005). The Rule 8 problems with his
complaint, however, arise from who he names as defendants. First, plaintiff names the State
of Wisconsin as a defendant. The state cannot be sued because it is entitled to immunity
under the Eleventh Amendment, regardless of whether a plaintiff seeks money damages or
injunctive relief. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 102
(1984) (citing Cory v. White, 457 U.S. 85, 91 (1982)). Second, there is no allegation that
any state official or employee had any authority over the day-to-day operation of the Dane
County Jail. Third, the Dane County Jail is not a suable entity under Wis. Stat. § 59.01.
Therefore, El Ghadban’s claims against defendants State of Wisconsin and Dane County Jail
must be dismissed.
While plaintiff may sue defendants Sgt. Price and Lieutenant Bahler, he must explain
their involvement in the denial of his First Amendment rights. At this point, it is unclear
what, if anything, either did or did not do to deny the practice of his religion. The closest
thing to an arguable “violation” is El Ghadban’s mention of a chaplain who ignored his
request to bring an Iman to advise him personally on the propriety of practicing key parts
of his religion in a cell with a toilet. Unfortunately, El Ghadban does not name the chaplain
as a defendant, nor does he explain why the chaplain could not play this role, he could not
personally consult an Iman in writing or other means to resolve this issue were not available,
since plaintiff cannot be the first to face this or a similar issue.
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Because plaintiff's complaint does not comply with Rule 8, the court must dismiss it
without prejudice. Plaintiff is free to file an amended complaint that fixes these problems.
In particular, he should include allegations that identify how defendants Price and Bahler
were involved in preventing him from practicing his religion, if at all, and name any other
individuals who were involved. Plaintiff should draft the complaint as if he were telling a
story to people who know nothing about his situation. Someone reading the complaint
should be able to answer the following questions:
•

What are the facts that form the basis for plaintiff's claims?

•

What did the individual defendants do that makes them liable for
violating plaintiff's rights?

•

How was plaintiff injured by defendants’ conduct? (In the case of his
apparent First Amendment claim, plaintiff should explain specifically
why defendants’ conduct precluded him from practicing his religion.)

Plaintiff also should take care to name the individuals whom he is suing in the caption of his
complaint. If plaintiff's amended complaint satisfies Rule 8, the court will then consider the
merits of his claims.

ORDER
IT IS ORDERED that plaintiff’s Omar Nabil El Ghadban’s complaint is DISMISSED
without prejudice for his failure to comply with Fed. R. Civ. P. 8. Plaintiff may have 20 days
from date of order to file an amended complaint that complies with Rule 8. If plaintiff
submits a revised complaint by that date, the court will take that complaint under
advisement for screening pursuant to 28 U.S.C. § 1915(e)(2). If he does not file an

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amended complaint by that date, the clerk of court is directed to close this case.
Entered this 2d day of November, 2012.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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