Dietrich, Jacob v. Wisconsin Department of Corrections et al

Filing 15

ORDER that Dietrich's complaint is dismissed without prejudice for failure to comply with Fed. R. Civ. P. 8. Alternatively, Dietrich's complaint is dismissed without prejudice for failure to comply with the federal pleading rules found in Fed. R. Civ. P. 18(a) and 20(a). Signed by District Judge William M. Conley on 5/25/2012. (jef),(ps)

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

JACOB T. DIETRICH,
Plaintiff,

OPINION AND ORDER

v.
11-cv-862-wmc
WISCONSIN DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.

The plaintiff, Jacob T. Dietrich, has filed a complaint under 42 U.S.C. § 1983,
alleging violations of his civil rights in connection with the conditions of his confinement in
the Wisconsin Department of Corrections (DOC). Dietrich proceeds pro se and he has paid
an initial partial filing fee in compliance with the in forma pauperis statute. See 28 U.S.C.
§ 1915(b)(4). The complaint is now before the court for screening pursuant to 28 U.S.C.
§ 1915A. As had the Eastern District of Wisconsin, this court concludes that the proposed
complaint fails to comply with federal pleading requirements. Moreover, the court can see
no basis for Dietrich to proceed further in this court. Accordingly, his complaint will be
dismissed.
ALLEGATIONS OF FACT
Presently incarcerated at the Green Bay Correctional Institution, Dietrich’s complaint
stems from his attempt to participate in one or more educational programs. In that regard,
Dietrich references an “IIP correspondence course” offered by the Milwaukee Area Technical
College (MATC), a “distance learning program” offered by University of Wisconsin System

through the University of Wisconsin at Plattville, and a “testing center” for inmates at the
Oshkosh Correctional Institution.
The complaint filed by Dietrich names more than 40 defendants, including: (1) the
DOC; (2) DOC General Counsel Kathryn R. Anderson; (3) Warden Michael Baenen of the
Green Bay Correctional Institution; (4) Education Director Russ Corcoran of the Oshkosh
Correctional Institution; (5) Teacher/IIP Site Coordinator Susan G. Casper; (6) Education
Director John Doruff; (7) Education Director Chris Eplett; (8) Complaint Examiner Tom
Gozinksi; (9) DOC Secretary Gary Hamblin; (10) Former DOC Secretary Rick Raemisch;
(11) Education Director David Hines; (12) Michael Mohr; (13) Cathrine Francois; (14)
Therasa Murphy; (15) Timothy Pierce; (16) Ismael Ozanne; (17) Amy Basten; (18) Ms. J.
Dinse; (19) Warden Judy Smith of the Oshkosh Correctional Institution; (2) Warden
William Pollard; (21) Education Director DeWayne Street; (22) the University of Wisconsin
System; (23) Academic Advisor/Outreach Specialist Kelly Curtiss; (24) Distance Learning
Center Staff Debbra Becker; (25) Distance Learning Center Staff Dawn Drake; (26) the
Chancellor of the University of Wisconsin at Plattville; (27) University of Wisconsin System
President James P. Riely; (28) UW General Counsel Paige Reed; (29) Assistant William F.
Trezevant; (30) Distance Learning Center Chair Susan Hansen; (31) the ChairpersonAdmissions and Academic Appeals Committee; (32) Distance Learning Center Staff
Christine Storelie; (33) MATC; (34) MATC Mathematics Instructor Judy Tokan; (35)
MATC “College of the Air” Dean Carl Morency; (36) the Affirmative Action Officer/General
Counsel for MATC; (37) Former Wisconsin Governor Jim Doyle; (38) Wisconsin Governor

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Scott Walker; (39) Brown County; (40) Waukesha County; (41) Grant County; and (42)
Winnebago County.
Dietrich alleges that all defendants have engaged in a “conspiracy” of “coordinated
retaliatory actions” by refusing to grant him leave to take or re-take exams in a “quiet room”
in violation of the First Amendment and the Americans with Disabilities Act. Dietrich
further alleges that he was falsely accused of sending threatening letters to personnel and
removed as a student without due process because of his status as an inmate. Dietrich also
alleges that the named municipal defendants refused to help him in “deliberate indifference”
to his right to a college education. Finally, Dietrich adds that he has been deprived of the
“minimal civilized measure of life’s necessities” and tortured in violation of the Eighth
Amendment.

Dietrich seeks compensatory, actual and punitive damages, as well as

injunctive relief.
Dietrich filed a similar complaint against many of the same defendants in the United
States District Court for the Eastern District of Wisconsin. See Dietrich v. Wisconsin Dep’t
of Corr. et al., No. 11-cv-352 (E.D. Wis.). It appears that Dietrich withdrew that complaint
after the district court issued its screening order, which pointed out the same deficiencies
outlined further below. Dietrich then re-filed his complaint in this court.

OPINION
A. Screening Standard
The court is required to screen all complaints filed by prisoners who seek relief from
a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it determines that the
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.
See 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(b) (authorizing dismissal of an in
forma pauperis complaint “at any time” on the same grounds).
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). Even under a liberal
standard of review, however, a pro se complaint is subject to dismissal as frivolous if it lacks
an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is
factually frivolous if its allegations are “bizarre, irrational or incredible.” Edwards v. Snyder,
478 F.3d 827, 829 (7th Cir. 2007) (citations omitted); see also Denton v. Hernandez, 504 U.S.
25, 32-33 (1992) (A complaint lacks an arguable basis in fact when the plaintiff’s allegations
are so “fanciful,” “fantastic,” and “delusional” as to be “wholly incredible.”). A claim lacks
an arguable basis in law if it is based on “an indisputably meritless legal theory.” Edwards,
478 F.3d at 830 (citing Neitzke, 490 U.S. at 325). “Malicious,” although sometimes treated
as a synonym for frivolous, “is more usefully construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citing Pittman v. Moore, 980 F.2d 994,
995 (5th Cir. 1983) (noting that “it is ‘malicious’ for a pauper to file a lawsuit that
duplicates allegations of another pending federal lawsuit by the same plaintiff”) (citations
omitted).
A complaint may be dismissed for failure to state a claim where the plaintiff alleges
too little, failing to meet the minimal federal pleading requirements found in Rule 8 of the
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Federal Rules of Civil Procedure. Rule 8(a) requires a “‘short and plain statement of the
claim’ sufficient to notify the defendants of the allegations against them and enable them
to file an answer.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). It is not necessary
for a plaintiff to plead specific facts. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). In that respect, “[a] document filed pro se is ‘to be liberally construed,’ Estelle[ v.
Gamble, 429 U.S. 97, 106 (1976)], and ‘a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nevertheless, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2007) (citing Twombly, 550 U.S. at 555) (observing that courts “are not
bound to accept as true a legal conclusion couched as a factual allegation”).
B.

Dietrich’s Complaint Fails to State a Claim

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was
deprived of a right secured by the Constitution or laws of the United States; and (2) the
deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (2009) (citing Kramer v. Village
of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)). To demonstrate liability under
§ 1983, a plaintiff must allege sufficient facts showing that an individual personally caused
or participated in the alleged constitutional deprivation. See Zimmerman v. Tribble, 226 F.3d
568, 574 (7th Cir. 2000); Walker v. Taylorville Correctional Ctr., 129 F.3d 410, 413 (7th Cir.
1997) (noting that “personal involvement” is required to support a claim under § 1983).
Dismissal is proper “if the complaint fails to set forth ‘enough facts to state a claim to relief
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that is plausible on its face.’” St. John’s United Church of Christ v. City of Chicago, 502 F.3d
616, 625 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Dietrich’s complaint alleges the following causes of action: (1) retaliation, (2)
violations of the Americans with Disabilities Act, (3) violations of the right to due process,
and (4) violations of the Eighth Amendment. Dietrich’s proposed complaint does not meet
the pleading standard found in Fed. R. Civ. P. 8, because it does not provide a short and
plain statement of the facts in support of his claims. The court concludes, therefore, that
Dietrich may not proceed with the current complaint. Given that he had already been
provided an opportunity to revise his complaint by the Eastern District of Wisconsin to no
good effect, his complaint will be dismissed.
1.

Retaliation

Dietrich’s primary claim appears to assert retaliation in violation of the First
Amendment. However, he does not allege facts showing that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a deprivation that would likely deter such
activity in the future; and (3) the First Amendment activity was “at least a motivating factor”
in the defendant’s decision to take a retaliatory act. Bridges v Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009) (citations omitted).

Of equal importance, Dietrich does not attempt to

demonstrate the requisite personal involvement of each defendant in the alleged retaliation.
See Zimmerman, 226 F.3d at 574. Thus, his allegations are insufficient to afford notice to the
defendants and the court of the nature of his claim. See Higgs v Carver, 286 F.3d 437, 439
(7th Cir. 2002).

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2.

Americans with Disabilities Act

Dietrich also appears to claim that he was subjected to retaliation under the
Americans with Disabilities Act.1 Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132. The Supreme Court has held
that the term “public entity” includes state prisons. United States v. Georgia, 546 U.S. 151,
153-54 (2006) (citing Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 2010 (1998)).
To state a claim, a plaintiff must be a “qualified individual with a disability” as
defined by the ADA. Jackson v. City of Chicago, 414 F.3d 806, 810-11 (7th Cir. 2005). As
a result, he must allege facts showing that he is “an individual with a disability who -- with
or without reasonable modifications to rules, policies or practices, the removal of
architectural, communication, or transportation barrier, or the provision of auxiliary aids and
services -- meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
Dietrich’s complaint refers to his removal from more than one educational program.
From the complaint, it is not clear whether Dietrich claims that he was terminated from
participating in one or more of the programs because of a disability or whether his

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Along with his asserted cause of action under the ADA, Dietrich references the
Rehabilitation Act, 29 U.S.C. § 794, the Civil Rights of Institutionalized Persons Act, 42
U.S.C. § 1997, and the “Higher Education Act.” (Dkt. 1, at 9). However, he provides no
facts in support of a claim under these separate statutory frameworks. Thus, the court
addresses only his claim under the ADA.
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termination was done in retaliation for his request for accommodations. Likewise, it is
unclear which defendants were personally responsible for terminating his participation in the
program(s) at issue.
3.

Due Process

Dietrich alleges that he was removed from one or more educational programs without
due process. A prisoner cannot complain of procedural due process violations under 42
U.S.C. § 1983 unless he first demonstrates that the State has deprived him of a protected
interest created either by state law or by the Due Process Clause itself. Sandin v. Connor, 515
U.S. 472, 483-84 (1995); Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989)
(“We examine procedural due process questions in two steps: the first asks whether there
exists a liberty or property interest which has been interfered with by the State, the second
examines whether the procedures attendant upon that deprivation were constitutionally
sufficient.” (citations omitted)); Williams v. Ramos, 71 F.3d 1246, 1248-49 (7th Cir. 1995)
(“When a plaintiff brings an action under § 1983 for procedural due process violations, he
must show that the state deprived him of a constitutionally protected interest in ‘life, liberty,
or property’ without due process of law.”) (citing Zinermon v. Burch, 494 U.S. 113, 125-26
(1990)).
Dietrich has not alleged facts showing that he had any constitutionally-protected
liberty or property interest in remaining in a particular educational program. Nor does he
identify which of the defendants are responsible for violating his right to due process. Thus,
he has not stated a claim upon which relief can be granted.

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4.

Eighth Amendment

Dietrich complains that he was terminated from an educational program in violation
of the Eighth Amendment. An inmate claiming a violation of the Eighth Amendment must
allege that prison officials knew about but ignored conditions resulting “in the denial of ‘the
minimal civilized measure of life’s necessities.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see Townsend v. Fuchs, 522 F.3d 765,
773 (7th Cir. 2008).

The Eighth Amendment, however, does not compel prison

administrators to provide general educational programs for inmates. See Rhodes, 452 U.S.
at 348; Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981). See also Zimmerman v.
Tribble, 226 F.3d 568, 571 (7th Cir. 2000) (concluding that inmate did not have an Eighth
Amendment right to participate in educational and substance-abuse programs); Garza v.
Miller, 688 F.2d 480, 486 (7th Cir. 1982) (“There is no constitutional mandate to provide
educational, rehabilitative, or vocational programs, in the absence of conditions that give rise
to a violation of the Eighth Amendment.”). It follows, therefore, that Dietrich has failed to
state a claim for which relief may be granted under the Eighth Amendment. See Rhodes, 452
U.S. at 348.
C.

Dietrich’s Complaint Improperly Joins Multiple Parties and Claims

In addition to the complaint’s shortcomings under Fed. R. Civ. P. 8, Dietrich lodges
claims against numerous defendants stemming from more than one transaction or occurrence
involving more than one educational program and different prison facilities. A plaintiff may
only join “either as independent or as alternate claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing party.” Fed. R. Civ. P. 18(a). As a corollary,
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a plaintiff is only allowed the joinder of several defendants if the claims arose out of a single
transaction and contain a question of fact or law common to all the defendants. Fed. R. Civ.
P. 20(a). Although Dietrich attempts to unite his claims by invoking a conspiracy, his
allegations fail to demonstrate how the defendants are related to a single transaction or
common question of law and fact. Indeed, the opposite appears the case.
By lodging unrelated claims against multiple defendants, the complaint does not
comport with the federal pleading rules found in Fed. R. Civ. P. 18(a) or 20(a). The Seventh
Circuit has emphasized that “unrelated claims against different defendants belong in
different suits” and that federal joinder rules apply to prisoners just as to other litigants.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The Seventh Circuit having instructed that “buckshot complaints” should be
“rejected,” Dietrich’s complaint is subject to dismissal for violating these rules.
D.

Id.

Denial of Further Leave to Amend

Normally, Dietrich would be allowed to file an amended complaint attempting to cure
the deficiencies referenced above. The court declines to do so here for a number of reasons.
As an initial matter, Dietrich had already been advised by the District Court for the Eastern
District of Wisconsin that his complaint contained myriad defects. Rather than attempt to
address those, he attempted an end run to this court. Even if the court were to ignore such
blatant forum shopping, having failed twice to plead concise claims, there is little reason to
expect a different result next time. Moreover, to the extent they can be discerned, most, if
not all, of Dietrich’s underlying claims based on a denial of educational opportunities appear
meritless, and in some cases frivolous, on their face, particularly given his own admitted
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misconduct and defendants’ entitlement to qualified immunity.

Finally, Dietrich is

incarcerated in Green Bay making the Eastern District a more appropriate venue should he
choose, how ill-advisedly, to attempt to pursue his claims further.

ORDER
IT IS ORDERED that Dietrich’s complaint is DISMISSED without prejudice for
failure to comply with Fed. R. Civ. P. 8. Alternatively, Dietrich’s complaint is DISMISSED
without prejudice for failure to comply with the federal pleading rules found in Fed. R. Civ.
P. 18(a) and 20(a).
Entered this 25th day of May, 2012.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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