Leiser, Loren v. Voeks, Jeannie et al

Filing 3

ORDER that plaintiff may have until June 23, 2011 to file an amended complaint that address the problems identified in this order and give defendants fair notice of plaintiff's claims, as required by Fed. R. Civ. P. 8. If plaintiff does not respond to that date, I will screen plaintiff's original complaint under 28 U.S.C. §§ 1915 and 1915A. Signed by District Judge Barbara B. Crabb on 6/9/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LOREN L. LEISER, SR.,
OPINION AND ORDER
Plaintiff,
11-cv-328-slc1
v.
JEANNIE ANN VOEKS, R.N., DR. BRIAN J. BOHLMANN,
DR. KENNETH ADLER, DR. BRUCE GERLINGER,
DR. BRAUNSTEIN, DR. JOAN M. HANNULA,
DAVE ROCK, Nurse Practitioner,
PAMELA WALLACE, former SCI Warden,
BRADLEY HOMPE, former SCI Warden,
JOHN/JANE DOE(S) “SPECIAL NEEDS COMMITTEE” MEMBERS,
JOHN/JANE DOES(S) “COMMITTEE” APPROVING SURGICAL PROCEDURES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Loren L. Leiser, a prisoner at the Stanley Correctional Institution, has filed
a proposed complaint under 42 U.S.C. § 1983. It is 22 pages long and includes many claims,
all but one of which involve allegations that defendants failed to give him needed medical
care, primarily related to his knees. The other claim is that defendant Brian Bohlmann
sexually assaulted him during what was supposed to be a medical exam. These claims may

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I am exercising jurisdiction over this case for the purpose of this order.

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be joined under Fed. R. Civ. P. 18 and 20 because Bohlmann is included in plaintiff’s claim
for inadequate medical care as well.
Plaintiff has made an initial partial payment in accordance with 28 U.S.C. §
1915(b)(1), so his complaint is ready for screening pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A. Under those provisions, a district court must review complaints filed by prisoners
against public officials and dismiss any claims that fail to state a claim upon which relief may
be granted.
I cannot allow plaintiff to proceed at this time because many portions of his
complaint do not comply with Fed. R. Civ. P. 8, which requires plaintiffs to give defendants
fair notice of his claims against them. In particular, plaintiff’s complaint suffers from a
problem that is common among pleadings filed by pro se parties: with respect to many
claims, he does not explain how a particular defendant was involved in the alleged
constitutional violation. These allegations are necessary because a prison official cannot be
held liable under § 1983 for anyone’s actions but his own. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) ("[E]ach Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.") Even with respect to high-ranking officials such as
a warden, the plaintiff must show that he participated in the constitutional violation in some
manner. In other words, a supervisor cannot be held liable simply because individuals he
supervises violated the constitution.

Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir.

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2009) ("Liability depends on each defendant's knowledge and actions, not on the knowledge
or actions of persons they supervise.").
First, with respect to defendant Pamela Wallace, plaintiff includes no allegations
about her other than that she is the former warden of the Stanley prison. That is not
sufficient to show that she was personally involved in a violation of plaintiff’s rights.
The same is true for the John Does who plaintiff says are part of the “Special Needs
Committee.” The problem is not that plaintiff does not know the names of the individuals
on that committee; it is that plaintiff does not mention the “special needs committee”
anywhere in the body of his complaint. Plaintiff must explain what he believes these
committee members did to violate his rights.
A more prevalent problem is that plaintiff fails to identify which defendant or
defendants he believes is responsible for an alleged constitutional violation.

In many

instances, he (1) alleges generally that “defendants” took a particular action (or refused to
take action) without identifying which defendants are the subject of the allegation or what
the involvement of each was; (2) uses the passive voice without identifying anyone who was
responsible; and (3) seems to blame an official who is not named in the caption of his
complaint. Some of these allegations include:
•

Plaintiff was forced to endure significant physical pain for a long period
of time while “the Defendants” obtained approval for the surgeries.
Cpt. ¶ 29, dkt. #1. See also id. at ¶ 30.

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•

Plaintiff “was only allowed to stay in the hospital three (3) days” after
his first knee surgery, which “denied him access to the hospital’s
physical therapy machines”; after discharge, plaintiff suffered from “a
lack [of] access to appropriate physical therapy.” Security director
Reed Richardson (who is not a defendant) “refused to authorize
physical therapy at the Stanley Hospital.” Id. at ¶ 34.

•

Plaintiff “injured his shoulders because the Defendants failed to
provide adequate facilities to Leiser.” Id. at ¶ 47.

•

“[S]ecurity staff refused to use the soft cuffs.” Id. at ¶ 71.

I cannot consider these allegations unless they are tied to a defendant who is named in the
caption.
Even when plaintiff identifies particular defendants, he does not always describe the
context of his allegation. For example, he alleges generally that defendants Adler, Gerlinger.
Braunstein and Bohlmann “refused to issue any narcotic pain medications to alleviate
Leiser’s pain or reduce the level of pain prior to surgery.” Id. at ¶ 56. However, he does not
describe the circumstances of these alleged denials, except with respect to Gerlinger. He does
not explain what these defendants knew about his pain, what treatment they prescribed, if
any, and what reasons they gave for their actions. In addition, he does not say when these
alleged denials occurred or in what setting. To satisfy Rule 8, plaintiff must identify the
particular actions of each defendant that he believes violated his rights.
Another problem is that plaintiff lists the Americans with Disabilities Act and the
Rehabilitation Act in his complaint, but he does not include allegations tied to these legal

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theories. If he wishes to proceed under these statutes, he must identify the disability he has.
That is, he must identify a “physical or mental impairment that substantially limits one or
more of the major life activities.” 42 U.S.C. § 12102(2)(A). In addition, he must identify
“the services, programs, or activities” of the prison that are being denied him because of his
disability. 42 U.S.C. § 12132. Finally, he must identify the “reasonable accommodation”
he is seeking that a particular defendant has refused to provide. 42 U.S.C. § 12131(2).
Plaintiff has not included any of these allegations in his complaint.
A more general problem with his complaint is that it includes so many different
incidents and defendants that it is difficult for the court to determine what is a claim and
what is simply background. It would be useful if plaintiff included a summary of his claims
and the defendant or defendants he means to sue for each claim. This will help the court
understand more precisely which actions or inactions by which defendants plaintiff believes
led to the violation of his constitutional rights.
I will give plaintiff an opportunity to file an amended complaint that addresses these
concerns. Plaintiff should review his entire complaint and consider whether each claim
provides adequate notice. In particular, plaintiff should make sure that for each claim he
has included: (1) the facts that form the basis for the claim; and (2) what a particular
defendant did that makes him or her liable for violating plaintiff's rights. More generally,
plaintiff should view the exercise as telling a story to people who know nothing about his

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situation. If plaintiff chooses not to file an amended complaint, I will screen his original
complaint, but I will dismiss any claims that do not comply with Rule 8.

ORDER
IT IS ORDERED that plaintiff Loren Leiser may have until June 23, 2011 to file an
amended complaint that addresses the problems identified in this order and gives defendants
fair notice of plaintiff’s claims, as required by Fed. R. Civ. P. 8. If plaintiff does not respond
by that date, I will screen plaintiff’s original complaint under 28 U.S.C. §§ 1915 and 1915A.
Entered this 9th day of June, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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