Soto, Jose v. Kelley et al

Filing 28

ORDER Dismissing 1 Complaint pursuant to Fed. R. Civ. P. 20. (Response to order due 5/4/2015.) Signed by District Judge James D. Peterson on 4/15/2015. (jef),(ps)

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

JOSE SOTO,

v.

Plaintiff,

OPINION & ORDER
14-cv-514-jdp

C.O. KELLEY, C.O. GRANT, C.O. DONOVAN,
C.O. GEE, C.O. CROCKER, TRAVIS BITTELMAN,
DALIA SULIENE, DIANE LANE, JANEL NICKEL,
SGT. HEINECKE, SGT. ROYCE, SGT. SIRELL,
LORI ALSUM, CAPTAIN RADTKE, C.O. WILEY,
C.O. LAFERVE, AND CAPTAIN MORGAN,
Defendants.

Plaintiff Jose Soto is currently a prisoner at the Waupun Correctional Institution. At the
time relevant to his lawsuit, plaintiff was at the Columbia Correctional Institution (CCI),
located in Portage, Wisconsin. He has filed a proposed complaint under 42 U.S.C. § 1983
alleging that defendants, who are employed at CCI, violated his constitutional rights in several
ways. Plaintiff seeks leave to proceed in forma pauperis and has made an initial partial payment of
the filing fee as directed by the court. As a next step, I must screen his complaint and dismiss
any portion that is legally frivolous, malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915 and 1915A. In addressing any pro se litigant’s complaint, I must
read the allegations of the complaint generously. McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010).
After considering plaintiff’s allegations, I conclude that I cannot yet conduct the required
screening because plaintiff’s complaint violates Rule 20 of the Federal Rules of Civil Procedure
by joining several claims together that do not belong in the same lawsuit. Accordingly, I will give
him the opportunity to choose which claim he wishes to pursue in this case and to submit an
amended complaint for that claim.

ALLEGATIONS OF FACT
In his complaint, plaintiff alleges the following facts:
Plaintiff had a shoulder injury of some kind and was awaiting surgery when he was
placed in disciplinary segregation on March 22, 2010. Despite the condition of his shoulder,
defendants were binding his arms behind his back to secure him and making him sleep on a
mattress placed directly on the floor. Plaintiff complained to defendant Dr. Dalia Suliene and
asked for a thicker mattress and additional blankets to support his shoulder, ice and pain
medicine for his discomfort, and a directive that his arms be bound in front of him rather than
behind his back. On April 29, 2010, plaintiff received a medical restriction that he not be forced
to sleep directly on the floor or on a “boat.” However, defendants Captain Radtke, Janel Nickel,
Lori Alsum, and Dr. Dalia Suliene forced him to continue sleeping on the floor until May 25,
2010. It is not clear whether defendants stopped binding plaintiff’s arms behind his back.
At around the time plaintiff went into segregation, his property became comingled with
another inmate’s property. As a result, CCI staff attributed more property to plaintiff than
allowed under the Department of Corrections rules. Although plaintiff offered to assist in
sorting out the property and to claim the pieces that belonged to him, defendants Diane Lane,
Janel Nickel, Lt. Schoenberg, Captain Morgan, and Sgt. Heinecke refused to permit him to do
so. Plaintiff also offered Lane, Nickel, and Heinecke contact information for civilians who would
accept his excess belongings on his behalf, but defendants declined to send his property along
and instead disposed of it.
On or about July 18, 2011, defendant C.O. LaFerve slammed plaintiff to the floor and
defendant C.O.s Kelley, Grant, Donovan, and Gee restrained plaintiff on the ground. C.O.
Donovan secured plaintiff’s feet with handcuffs instead of leg shackles. Defendants then stood
plaintiff up and demanded that he walk, yelling “[w]alk right fucking now!” at him. Plaintiff was

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unable to walk because of the handcuffs and an injury, but defendants continued, stating
“[f]uck this shit! You are going to walk—and fast!” Defendant C.O. Crocker then took plaintiff
by his chin and neck and dragged him approximately 25 feet until other officers stopped him
and directed that plaintiff be able to use a wheelchair.
By September 5, 2011, plaintiff had been in segregation at CCI for approximately 540
days. He mounted a hunger strike to protest the denial of his medical care and the use of
excessive force against him. During this time, defendant C.O. Bittelman deprived plaintiff of
sleep by repeatedly turning on his light all night for days at a time. Bittelman remarked that as
long as plaintiff generated paperwork for Bittelman to complete, Bittelman would make sure
that plaintiff did not sleep.
By September 18, 2011, plaintiff had been placed in segregation for approximately 553
days. He began hearing auditory hallucinations of disturbing voices. Plaintiff asked to see a
mental health professional, but defendants Sgt. Royce, Sgt. Sirell, and C.O. Wiley did not
facilitate plaintiff in availing himself of mental healthcare. Plaintiff subsequently attempted to
kill himself by hanging while in segregation.

ANALYSIS
Plaintiff has combined into one lawsuit several different claims against different
defendants regarding different incidents. He cannot proceed on them together because he has
not explained why they are connected. Rule 20 prohibits a plaintiff from asserting unrelated
claims against different defendants in the same lawsuit. Defendants may be joined in one
lawsuit only if the claims against them arise out of the same transaction or occurrence and
present questions of law or fact that are common to them all. George v. Smith, 507 F. 3d 605,
607 (7th Cir. 2007). The five counts pleaded by plaintiff each involve separate acts of alleged

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wrongdoing by separate sets of defendants. Plaintiff’s complaint does not allege that these
counts arise out of the same transaction or occurrence.
Therefore I conclude that plaintiff’s complaint should be dismissed and he should be
given a chance to file an amended complaint that includes only claims that arise out of the same
transaction or occurrence. Without taking any position on the merit of any of his potential
claims, plaintiff could choose to pursue any of the following possible separate lawsuits:
1. An Eighth Amendment deliberate indifference claim against defendants Captain
Radtke, Janel Nickel, Lori Alsum, and Dalia Suliene for failing to adequately
accommodate his medical condition.
2. An Eighth Amendment deliberate indifference claim against defendants Sgt. Royce,
Sgt. Sirell, and C.O. Wiley for denying plaintiff access to mental health care.
3. An Eighth Amendment excessive force claim against defendants C.O. LaFerve, C.O.
Kelley, C.O. Grant, C.O. Donovan, C.O. Gee, and C.O. Crocker for the incidents of
July 18, 2011.
4. A Fourteenth Amendment claim for destruction of property without due process
against defendants Diane Lane, Janel Nickel, Lt. Schoenberg, Captain Morgan, and
Sgt. Heinecke.
5. A First Amendment retaliation claim against defendant C.O. Bittelman.
Before I can screen the merits of any of his claims, plaintiff will have to respond to this order
and explain how he would like to proceed. He may choose one of the numbered claims above to
pursue using this case number. Plaintiff may also choose to pursue additional claims, but he
must do so in separate lawsuits. For each separate lawsuit that he chooses to pursue, plaintiff
must file a separate complaint and pay an initial partial payment of the $350 filing fee. 28
U.S.C. § 1915(b)(1).

ORDER
IT IS ORDERED that:

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1. Plaintiff Jose Soto’s complaint is DISMISSED under Federal Rule of Civil Procedure
20.
2. Plaintiff may have until May 4, 2015, to identify for the court which of the abovenumbered lawsuits he wishes to pursue under this case number. Plaintiff must choose
one and only one of these lawsuits to proceed under this case number.
3. Plaintiff may have until May 4, 2015, to advise the court whether he wishes to
pursue any of the lawsuits that he does not choose to continue under this case
number.
4. For any lawsuit plaintiff wishes to continue, he must submit a separate complaint
that fully explains the basis for his claims.
5. For any new lawsuits that plaintiff wishes to pursue, he will have to submit a $100.19
initial partial payment of the filing fee.
6. For each lawsuit that plaintiff chooses to pursue, he will owe a separate $350 filing
fee. For any lawsuit that plaintiff dismisses voluntarily at this time, he will not owe a
filing fee.
7. If plaintiff fails to respond to this order, I will enter an order dismissing the case for
failure to prosecute it.
Entered April 15, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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