Smith, Derrick v. Gleason, Deb et al

Filing 29

ORDER denying plaintiff leave to proceed and dismissing his 1 complaint pursuant to Fed. R. Civ. P. 8 and 20. Amended Complaint due 12/10/2013. Signed by District Judge William M. Conley on 11/25/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DERRICK L. SMITH,
Plaintiff,

OPINION AND ORDER

v.

12-cv-633-wmc

DEB GLEASON, et al.,
Defendants.

State inmate Derrick L. Smith has filed this civil action pursuant to 42 U.S.C. § 1983,
concerning the conditions of his confinement at the Marathon County Jail. He has been
granted leave to proceed in forma pauperis in this case and he has paid an initial, partial filing
fee as required by the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b)(1).
Because he is incarcerated, the PLRA also requires the court to screen the complaint and
dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief
may be granted or asks for money damages from a defendant who by law cannot be sued for
money damages.

28 U.S.C. § 1915A.

In addressing any pro se litigant‟s complaint, the

court must read the allegations generously, reviewing them under “less stringent standards
than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 521 (1972).

Even under this very lenient standard, Smith‟s request for leave to proceed must be denied for
reasons set forth below.

FACTS
For purposes of this order, the court accepts all well-pled allegations as true and
assumes the following probative facts.1
The plaintiff, Derrick L. Smith, has a lengthy criminal record of convictions from
Marathon County, Wisconsin, dating back to at least 1996. Smith turned himself in to the
Marathon County Jail on June 5, 2012, after he was charged with several felony offenses in
Marathon County Case No. 2012CF386.2 Smith was also charged with violating the terms
of his supervised release from a previous sentence of imprisonment. Following the revocation
of his parole and return to state prison in October 2012, Smith was transferred from the
Marathon County Jail to the Dodge Correctional Institution (“DCI”) of the Wisconsin
Department of Corrections (“WDOC”).

In February 2013, Smith was assigned to the

Columbia Correctional Institution (“CCI”). On August 6, 2013, Smith was released from
state prison on extended supervision.

Because a detainer was pending against him from

Marathon County, Smith returned to custody at the Marathon County Jail, where he is
currently awaiting trial in Case No. 2012CF386.
In this case, Smith has filed suit under 42 U.S.C. § 1983 against the following
individuals who are employed at the Marathon County Jail:

Supervisor Deb Gleason;

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The court has supplemented the sparse allegations in the complaint with dates and procedural
information about plaintiff‟s underlying criminal case from the electronic docket available at
Wisconsin Circuit Court Access, http://wcca.wicourts.gov (last visited November 15, 2013). The
court draws all other facts from the complaint in this case and several others filed recently by
Smith, as well as any exhibits attached to his pleadings. See FED. R. CIV. P. 10(c); see also Witzke
v. Femal, 376 F.3d 744, 749 (7th Cir. 2004) (explaining that documents attached to the
complaint become part of the pleading, meaning that a court may consider those documents to
determine whether plaintiff has stated a valid claim).
2

Smith has been charged in that case with first-degree sexual assault with a dangerous weapon;
substantial battery intending bodily harm; strangulation and suffocation (two counts); false
imprisonment; and victim intimidation by use or attempted use of force. See State v. Derrick L.
Smith, Marathon County Case No. 2012CF386.

Administrator Bob Dickman; Supervisor Cary Pellowski; Supervisor Sheila Jane Doe;
Supervisor John Doe Schaffer; Officer William Beaudry; Officer Denny Woodward; and
Officer Danell Jane Doe. Smith‟s complaint raises the following assortment of claims: (1)
he was subjected to sensory deprivation as an arbitrary and unjustified form of discipline; (2)
staff have ignored his complaints of pain due to a collapsed lung and a degenerative bone
condition; (3) he was denied access to courts while on “lockdown status” when all of his
personal property was taken; and (4) he was denied access to the law library and his requests
for copies, postage and forms have been denied. He requests injunctive relief and damages for
the violation of his civil rights.

OPINION
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 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).
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”).
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 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)).
Liberally construed, Smith‟s complaint alleges the following causes of action: (1)
punishment without due process; (2) deliberate indifference to a serious medical condition;
and (3) denial of access to courts. Smith does not say when any of these violations occurred.
Likewise, he provides no facts in support of his claims and no information showing which, if
any, of the defendants were personally involved with the asserted violations.

Smith‟s

proposed complaint does not meet the pleading standard found in Fed. R. Civ. P. 8(a),
because it does not provide a short and plain statement of the facts in support of his claims.
For this reason, the complaint must be dismissed without prejudice for failure to state a claim.
In addition to the complaint‟s shortcomings under Fed. R. Civ. P. 8(a), Smith appears
to lodge claims against multiple defendants in a manner that does not comply with federal
pleading rules on joinder. Specifically, 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, a plaintiff is only allowed the joinder
of several defendants if the claims arose out of a single transaction and contain a question of

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fact or law common to all the defendants. Fed. R. Civ. P. 20(a).
In this case, Smith fails to demonstrate how the defendants are related to a single
transaction or common question of law and fact.

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 Aunrelated 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,” Smith‟s
complaint is also subject to dismissal for violating these rules. Id.
Smith may file an amended complaint in this case to cure the deficiencies outlined
above. To proceed, plaintiff must file an amended complaint within fifteen days of the date
of this order.

That proposed amended complaint must set forth a “short and plain

statement” of his claims, see Fed. R. Civ. P. 8(a), and must include only those claims and
defendants that relate to a single transaction or common question of law and fact for purposes
of Fed. R. Civ. P. 18(a), 20(a).

Any unrelated claims not pursued in this case must be

brought in a separate action. If plaintiff submits an amended complaint in compliance with
this order, the court will take that complaint under consideration for screening pursuant to 28
U.S.C. § 1915A. If plaintiff fails to submit an amended complaint as directed, then this case
will be closed without further notice pursuant to Fed. R. Civ. P. 41(b).

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ORDER
IT IS ORDERED that:
1. Plaintiff Derrick L. Smith‟s request for leave to proceed is DENIED and his
complaint is DISMISSED without prejudice for failure to state a claim.
2. To proceed, plaintiff must file an amended complaint within fifteen days of
the date of this order. That proposed amended complaint must set forth a
“short and plain statement” of the facts in support of his claims, see Fed. R. Civ.
P. 8(a), and must include only those claims and defendants that relate to a
single transaction or common question of law and fact for purposes of Fed. R.
Civ. P. 18(a), 20(a).
3. If plaintiff submits an amended complaint in compliance with this order, the
court will take that complaint under consideration for screening pursuant to 28
U.S.C. § 1915A. If plaintiff fails to submit an amended complaint as
directed within 15 days, then this case will be closed without further
notice pursuant to Fed. R. Civ. P. 41(b).
Entered this 25th day of November, 2013.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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