Lindell, Nate v. Esser, Dane et al

Filing 9

ORDER that plaintiff's request for leave to proceed with his complaint (dkt. # 1 ) is DENIED and the clerk's office is directed to STRIKE that complaint from the record.(Amended Complaint due 1/2/2015. ) Signed by District Judge William M. Conley on 12/3/2014. (jef),(ps)

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

NATE A. LINDELL,
Plaintiff,

OPINION AND ORDER

v.
13-cv-563-wmc
LIEUTENANT DANE M. ESSER, CAPTAIN
SARA A. MASON, CAPTAIN DARYL W.
FLANNERY, TIMOTHY F. HAINES,
TROY G. HERMANS, KELLY R. TRUMM,
CHARLES FACKTOR, CHARLES E. COLE,
CINDY O’DONNELL and JOHN DOES 1-7,
Defendants.
Plaintiff Nate A. Lindell requests leave to proceed under the federal in forma
pauperis statute with a civil action pursuant to 42 U.S.C. § 1983, alleging constitutional
violations in connection with the conditions of his confinement in the Wisconsin
Department of Corrections. Lindell has made an initial partial payment of the filing fee
as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b), but the
court must also 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. Because Lindell’s proposed complaint does not comply with federal pleading
requirements, the court will deny plaintiff leave to proceed at this time, while affording
him an opportunity to amend.

SUMMARY OF PROPOSED CLAIMS
Plaintiff Nathaniel A. Lindell is presently confined by the Wisconsin Department
of Corrections (“WDOC”) at the Waupun Correctional Institution (“WCI”). From July
9, 2002, through January 4, 2013, he was confined by at the Wisconsin Secure Program
Facility (“WSPF”) in Boscobel.
The proposed defendants include several administrators employed by WDOC in
Madison: Corrections Complaint Examiner (“CCE”) Charles Facktor; Deputy Secretary
Charles E. Cole; and Deputy Secretary Cindy O’Donnell. The defendants also include
the following officers and officials at WSPF:

Warden Timothy F. Haines; Deputy

Warden Troy G. Hermans; Lieutenant Dane M. Esser; Captain Sara A. Mason; Captain
Daryl W. Flannery; and John Does 1 through 7.
In addressing any pro se litigant’s pleadings, the court must read the allegations of
the complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). After reviewing
the pleadings under this lenient standard, it appears that Lindell is attempting to bring
several, unrelated claims against multiple defendants in a single action. His proposed
claims are summarized in chronological order below.

1. Claims Against Lieutenant Esser, Mason, Trumm and Hermans
In 2005, Lindell filed a civil action in this district, alleging that Lieutenant Esser
violated his rights under the Eighth Amendment by “throwing a meal tray” at him.

See

Lindell v. O’Donell, et al., 05-cv-4-bbc (W.D. Wis.). During discovery in that case, Lindell
learned that Esser had been reprimanded previously for using excessive force on another
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prisoner. In spite of that reprimand, Esser was promoted and given authority to monitor
mail and to search prisoners’ property for contraband at WSPF.
On November 24, 2011, Esser allegedly seized a manila envelope containing an
“original piece of short fiction” written by Lindell, and then refused to return it.
Characterizing the envelope and its contents as “contraband,” Esser accused Lindell in
Conduct Report #2155409 of violating Wis. Admin. Code § DOC 303.40, which
prohibits an “unauthorized transfer of property.” Lindell insists that Esser’s actions were
both without justification and in retaliation for his lawsuit against Lindell.
Nevertheless, on December 15, 2011, Captain Mason found Lindell guilty as
charged in Conduct Report #2155409, resulting in his losing recreation privileges for
seven days. Moreover, Lindell’s short story was confiscated and destroyed. Lindell filed
an appeal from the disciplinary conviction, but Deputy Warden Hermans upheld the
decision on January 5, 2012. Lindell also filed a grievance concerning Esser’s actions,
which Trumm rejected. By causing his conviction based on false disciplinary charges,
Lindell contends that defendants Esser, Mason, Trumm and Hermans violated his First
Amendment right to free speech and to petition for redress of grievances.

2. Claims Against Esser, Lieutenant Tom, Trumm and Haines
On December 9, 2011, Esser allegedly seized another manila envelope that
contained “printouts of comments left on Lindell’s blog.” Esser then filed charges against
Lindell in Conduct Report #2155410, again accusing him of violating Wis. Admin. Code
§ DOC 303.40 by attempting to make another unauthorized transfer of property. Esser
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also directed two sergeants (neither of whom are named as defendants here) to seize and
search all “paper property” in Lindell’s cell. Lindell’s property was returned the following
day, with the exception of three sheets of paper featuring what Lindell describes as
drawings of a “beautiful nude female.” Also missing was a copy of Esser’s personnel file,
which had been provided to Lindell during his 2005 lawsuit.
On December 15, 2011, Lieutenant Tom found Lindell not guilty as charged in
Conduct Report #2155410, but kept the envelope and its contents.
Lindell filed a grievance regarding the loss of his printouts.

Subsequently,

On January 5, 2012,

Hermans allegedly agreed that the printouts were not contraband and should be returned
to Lindell. The printouts, however, were not returned.
Lindell also filed a grievance regarding the loss of his “art,” which Trumm
dismissed based on Esser’s assurance that all of the property had been returned to
Lindell.

On appeal, Warden Haines upheld Trumm’s decision on January 13, 2012.

Lindell claims, therefore, that Tom, Trumm and Haines allowed Esser to remain in a
supervisory position where he could use his authority to violate Lindell’s rights under the
First Amendment.

3. Claims Against Esser, Trumm, Facktor and Cole
On June 8, 2012, another prisoner at WSPF (Ronnie Peebles) asked Lindell to
help him with unspecified “litigation.”

Lindell alleges that Esser took all of the

paperwork that Peebles had given him with no explanation or justification.

Trumm

denied Lindell’s grievance concerning these actions as well. Factor then recommended
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dismissing his appeal and Cole agreed. Lindell claims that Esser confiscated the papers
belonging to Peebles in violation of the First Amendment and that Trumm, Facktor and
Cole condoned his harassment.

4. Claims Against Esser, Sergeant Scullion, Trumm, Haines, Facktor and
Cole
On July 25, 2012, Esser and Sergeant Scullion allegedly confiscated all of Lindell’s
paper property, his “wedge pillow” and his “third blanket.” Esser told Lindell that his
paper property was being taken because Lindell was charged with battery of an officer.
Esser added that the Health Services Unit informed him that Lindell was not approved to
have a wedge pillow or an extra blanket.
Lindell maintains that he was authorized to have these items of property and that
Esser’s actions were “capricious.”

He further contends that Sergeant Scullion is a

“pathological liar,” who is also known for physically abusing inmates.

When Lindell

complained, Trumm, Haines, Facktor and Cole denied his grievances. Lindell claims that
his property was taken without due process, and that the supervisory defendants allowed
Esser to use his position of authority to mistreat or harass Lindell in violation of his
rights under the First Amendment.

5. Claims Against Esser, Trumm, Facktor and Haines
In September of 2012, Esser allegedly confiscated three more letters written to
Lindell by fellow prisoner Sean Riker.

Trumm denied Lindell’s grievance and

recommended that the complaint be dismissed.
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Facktor and Haines agreed.

Lindell

claims that the supervisory defendants allowed Esser to use his position of authority to
mistreat or harass Lindell.

6. Claims Against Esser, Captain Flannery, Trumm and Haines
On October 28, 2012, Lindell sent Riker a letter that contained an original
drawing, legal papers for a “pending case” filed by Riker and “directions for an affidavit
Lindell needed from Mr. Riker for one of Lindell’s pending cases.” Esser allegedly gave
this letter to Captain Flannery to issue a notice of non-delivery because the letter was
saturated with blue pigment. The letter was then confiscated and “misplaced.” Lindell
claims that Esser and Flannery threw the letter away.
Although Trumm and Haines recommended that Lindell be reimbursed for the
paper and postage for his lost piece of mail, Lindell complains that they failed to
investigate “the misconduct that blatantly occurred” when Esser poured pigment on to
his drawing. By tampering with his mail, Lindell claims that Esser retaliated against him
for filing a lawsuit against him. Lindell claims further that Flannery, Trumm and Haines
condoned Esser’s animosity in violation of his rights under the First Amendment.

OPINION
While each of Lindell’s proposed claims involve a similar fact pattern, it appears
that he is attempting to join at least six lawsuits against different defendants into one
action. The Seventh Circuit has emphasized that “[u]nrelated claims against different
defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
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To that end, prisoners may not circumvent the fee-payment or three-strikes provisions of
the Prison Litigation Reform Act by improperly joining claims in violation of the federal
rules. See id.; see also Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010) (demonstrating how
the improper joinder of claims by prisoners can flout the three-strikes rule found in 28
U.S.C. § 1915(g)).

More specifically, Fed. R. Civ. P. 18(a) provides that “[a] party

asserting a claim, counter-claim, cross-claim, or third-party claim may join, as
independent or alternative claims, as many claims as it has against an opposing party.”
Under this rule, “multiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George,
507 F.3d at 607. Likewise, Fed. R. Civ. P. 20 authorizes joinder of multiple defendants
into one action only if “any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and any question of law or fact common to all defendants
will arise in the action.”
These joinder rules apply equally to cases filed by prisoners and non-prisoners
alike. George, 507 F.3d at 607; Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683
(7th Cir. 2012) (“A litigant cannot throw all of his grievances, against dozens of different
parties, into one stewpot.”).

For example, “a suit complaining that A defrauded the

plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his
copyright, all in different transactions” would be rejected if filed by a free person and
should also be rejected if filed by a prisoner. George, 507 F.3d at 607.

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The complaint in this case violates Rules 18 and 20 by joining unrelated claims
against multiple defendants at two different prisons over a period of seven years.
Therefore, the proposed complaint must be rejected based on improper joinder. George,
507 F.3d at 607. Accordingly, the court will strike the complaint filed by Lindell in this
case. (Dkt. # 1).
The court will provide Lindell one more opportunity to submit an amended
complaint in this case. He is directed to choose carefully from among the claims listed
above and submit one, final amended complaint that sets forth a single claim or claims
permissibly joined in compliance with Rules 18 and 20. Any unrelated claim not pursued
in this case must be brought in a separate action. That final, amended complaint must
be filed within thirty days from the date of this order.

ORDER
IT IS ORDERED that:
1. Plaintiff Nathaniel A. Lindell’s request for leave to proceed with his complaint
(dkt. #1) is DENIED and the clerk’s office is directed to STRIKE that
complaint from the record.
2. Lindell may have one opportunity to submit a proper complaint in this case.
He is directed to choose carefully from among the claims listed above and
submit one, final amended complaint that sets forth a single claim or claims
permissibly joined in compliance with Rules 18 and 20 of the Federal Rules of
Civil Procedure. Any unrelated claim not pursued in this case must be brought
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in a separate action. The final, amended complaint must be filed within thirty
days from the date of this order.
3. If Lindell does not file an amended complaint as directed, this case will be
closed without further notice. Any amended complaint filed by Lindell will be
screened in accordance with 28 U.S.C. § 1915A. If the complaint filed by
Lindell fails to comply with this order, the court will dismiss the complaint and
this action with prejudice pursuant to Fed. R. Civ. P. 41(b).
Entered this 3rd day of December, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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