Dye, John v. Bartow, Bryn et al
ORDER dismissing 1 Complaint, pursuant to Fed. R. Civ. P. 8.; denying 11 , 13 Motions to direct institution to send initial partial payment. If plaintiff fails to provide an amended complaint by this deadline, the case will proceed, but only against defendant Eric. Signed by District Judge James D. Peterson on 12/10/2014. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHN L. DYE, JR.,
BRYAN BARTOW, ERIC, DR. GAANAN,
LOYDA LORIA, DR. ANDRADY,
SUSAN KOON, CATHY NEMETH,
LARRY JENKINS, ROBERT HUMPHERYS,
DENISE SYMDON, HOLLY GUNDERSON,
LON BECHER, MARY KLEMZ, CATHY JESS
and JOHN DOES,
Plaintiff John Dye, a prisoner incarcerated at the Waupun Correctional Institution, has
filed this proposed lawsuit, alleging that prison officials have failed to adequately address his
severe neck pain. Plaintiff has “struck out” under 28 U.S.C. § 1915(g) because on three
different occasions he has filed lawsuits that were dismissed as frivolous. In a March 19, 2014
order, the court granted plaintiff leave to proceed on a claim that defendant therapist Eric ended
his therapy sessions for no reason, but stayed the proceedings because the remainder of
plaintiff’s allegations against many different defendants were too vague to satisfy the
requirements of Federal Rule of Civil Procedure 8. Dkt. 7. The court gave plaintiff a chance to
submit an amended complaint more fully explaining his claims against each of the named
defendants. Id. The court also noted that plaintiff had not submitted the financial information
necessary to determine whether he qualified for in forma pauperis status and gave his a chance to
submit a prison trust fund account statement. Id.
This case was reassigned to me pursuant to a May 19, 2014 administrative order. Dkt. 15.
Plaintiff responded by filing a proposed amended complaint and a trust fund account
statement. The court calculated plaintiff’s initial partial payment to be $0.43, Dkt. 9, which
plaintiff has paid.2 The next step is to screen plaintiff’s amended 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. §§ 1915 and 1915A. In screening any pro se litigant’s complaint, the court
must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521
After examining plaintiff’s amended complaint in conjunction with these standards, I
conclude that it suffers from the same problem as his original complaint. The court summarized
the problems with the original complaint as follows:
At this point I conclude that plaintiff has alleged that he has a serious
medical need in the form of his allegedly severe neck pain. However, for the most
part, plaintiff has failed to identify the proper defendants. Liability under § 1983
must be based on a defendant’s personal involvement in the constitutional
violation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Plaintiff
provides very few allegations against individual defendants, and most of those
have to do with the very beginning of his care at the Wisconsin Resource Center,
where it appears that defendants Gaanan and Loria at least made some attempt at
diagnosing his problems and treating him. I conclude that he may proceed on a
claim against defendant therapist Eric, who plaintiff believes was responsible for
ending his therapy and lying about the reasons for it. But the vast majority of the
picture remains extremely unclear: plaintiff alleges that he is being forced to see a
psychiatrist before he will be allowed to see a general practitioner and alleges that
each defendant is responsible, but he names fifteen people in a wide variety of
roles (ranging from nurse to warden to assistant administrator of the Department
of Corrections Division of Adult Institutions) as defendants even though it seems
extremely unlikely that all of these people are responsible for his course of
Dkt. 7 at 7-8.
Shortly before plaintiff’s initial partial payment was submitted, he filed two motions to have
the prison send his payment to the court. Dkt. 11 and 13. Those motions will be denied as
Plaintiff’s amended complaint provides almost no new factual information. As with the
original complaint, plaintiff provides a relatively detailed accounting of various visits with
doctors in his first few months at the Wisconsin Resource Center, along with various treatment
he received, but he is almost completely silent about the course of treatment over the second
half of his thirteen-month stint at WRC.3 Importantly, because plaintiff has struck out under 28
U.S.C. § 1915(g), he will only be allowed to proceed on claims in this case showing that he was
in imminent danger of serious physical harm at the time he filed his complaint, which in this
case, was February 2014.4 Plaintiff’s failure to explain what type of treatment he was getting at
the end of his stint at WRC makes it impossible to tell whether he can meet this standard.
The lack of clarity regarding his treatment also means that plaintiff fails to show who
violated his rights. Aside from the first few months of treatment, plaintiff does not explain his
interactions with the doctors directing his care, defendants Gaanan and Loria. Plaintiff alleges
that he wrote letters to various defendants who are higher-ups at WRC or the Department of
Corrections, but without knowing what type of treatment he was receiving at that time or when
he wrote those letters, I cannot tell whether he has stated claims against these defendants.
I will give plaintiff a final chance to submit a second amended complaint that corrects
these problems. As the court has already told plaintiff, he should draft the amended complaint
as if he were telling a story to people who know nothing about his situation. This means that
someone reading the complaint should be able to answer the following questions:
Plaintiff alleges that he was at the Wisconsin Resource Center from January 23, 2013 to
February 24, 2014.
Because the “imminent danger” requirement of 28 U.S.C. § 1915(g) applies to plaintiff’s status
at the time he filed his complaint, plaintiff does not lose the ability to proceed on imminent
danger claims by virtue of his transfer from WRC after he filed the complaint. See Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir. 2003).
What are the facts that form the basis for plaintiff’s claims?
What actions did each defendant take that violated plaintiff’s rights?
In particular, what type of treatment was he receiving around the time he was
transferred out of WRC? What doctor recommended that treatment and
when did he or she recommend it? If he was not getting effective treatment,
which employees did he talk or write to about the problem? How did those
I will give plaintiff a short deadline to provide a new amended complaint. Should plaintiff fail to
provide an amended complaint by this deadline, he will be allowed to proceed only with his
claims against defendant Eric.
IT IS ORDERED that:
Plaintiff John Dye may have until December 29, 2014, to submit a second
amended complaint fixing the Fed. R. Civ. P. 8 problems discussed above. If
plaintiff fails to provide an amended complaint by this deadline, the case will
proceed, but only against defendant Eric.
Plaintiff’s motions for an order directing prison staff to send the court his initial
partial payment of the filing fee, Dkt. 11 and 13, are DENIED.
Entered this 10th day of December, 2014.
BY THE COURT:
JAMES D. PETERSON
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