Vele, Dennis v. Wright, Randall et al

Filing 12

ORDER that plaintiff Dennis Neil Vele may have until January 5, 2016, to identify for the court which of the numbered lawsuits identified above he wishes to proceed with under the number assigned to this case and whether he wishes to pursue either of the other lawsuits under separate case numbers. Signed by District Judge William M. Conley on 12/15/2015. (jef),(ps)

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

DENNIS NEIL VELE,
Plaintiff,

OPINION AND ORDER

v.
15-cv-151-wmc
SHERIFF RANDALL WRIGHT,
DEPUTY RANDALL GIESE, STEPHEN
P. BURROUGHS, WARDEN MICHAEL
MEISNER, HOLLY A. GUNDERSON,
LORI DOEHLING, BRIAN MILLER and
RICKY L. SEABUL,
Defendants.

State inmate Dennis Neil Vele filed a civil action under 42 U.S.C. § 1983, alleging
that defendants violated his constitutional rights in connection with the conditions of his
confinement in the Shawano County Jail and the Redgranite Correctional Institution.
Vele has already been granted leave to proceed in forma pauperis and made an initial
partial payment of the filing fee.

The next step would normally be to screen his

complaint as required by 28 U.S.C. § 1915A, but the court cannot conduct the required
screening because Vele’s complaint violates Rule 20 of the Federal Rules of Civil
Procedure.

As explained in more detail below, Vele’s complaint contains at least three

unrelated claims against different defendants.

Accordingly, Vele must choose which

lawsuit he wishes to pursue as Case No. 15-cv-151. Once Vele has made his selection,
the court will then screen this action under 28 U.S.C. § 1915A. The other, unrelated
claims will be dismissed without prejudice, permitting Vele to bring them in separate
lawsuits provided the applicable statute of limitations has not expired.

ALLEGATIONS OF FACT1
Parties
Vele is presently confined by the Wisconsin Department of Corrections at the
Redgranite Correctional Institution. Previously, he was confined as an inmate at the
Shawano County Jail.
The named defendants include the following officials employed at the Shawano
County Jail:

Sheriff Randall Wright; Deputy Randall Giese; and Jail Administrator

Stephen P. Burroughs. Also named as defendants are the following officers and officials
at Redgranite:

Warden Michael Meisner; Nursing Coordinator Holly A. Gunderson;

Health Service Unit Manager Lori Doehling; H-Unit Manager Brian Miller and Dr. Ricky
L. Seabul.
Vele is Injured During Transport by Shawano County Sheriff Deputy Giese
While in custody at the Shawano County Jail on December 28, 2012, Vele was
scheduled to make a court appearance. He asked Deputy Giese to transport him to court
in a wheelchair because his left leg had been amputated at the knee and his prosthetic leg
was “defective and would give out.” In denying that request, Giese forced Vele to cross
the ice-covered street to court while chained up. As he was walking across the slippery
street, Vele felt a sharp pain in his stump and his prosthetic leg “gave in,” causing Vele to

1

In addressing any pro se litigant’s complaint, the court must read the allegations generously.
Haines v. Kerner, 404 U.S. 519, 521 (1972). For purposes of this order then, the court
assumes the facts above.

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slip and fall on his right elbow. Vele was subsequently treated for a soft tissue injury at
the Shawano Medical Center.
Vele submitted a grievance about Giese to Burroughs, who reportedly “became
very indignant and angry, yelling: ‘What do you want me to do about it, Mr. Vele?” Vele
further alleges that both Burroughs and Sheriff Wright failed to properly investigate his
grievance against Giese.
Redgranite Correctional Institution Health Care
In December 2013, Vele was transferred from custody at the Shawano County Jail
to WDOC.

In January 2014, WDOC assigned Vele to the Redgranite Correctional

Institution. In March 2014, Vele submitted a health service request, complaining that
his prosthetic leg was defective and was scheduled to see a nurse at Redgranite. Vele
then submitted a second request in April 2014, complaining that his prosthetic leg was
“giving out” and that he was afraid of falling and hurting himself. Redgranite Health
Services Unit manager, defendant Doehling, responded that Vele was scheduled to be
sent to “an outside place” to have his prosthetic leg “fitted.” On May 15 and 24, 2014,
Vele submitted two more health service requests, this time complaining of pain in his
right elbow.
On May 29, Vele slipped and fell after his prosthetic leg gave out. As a result,
Vele submitted another health service request, again complaining about his prosthetic
leg, and was informed that he would be scheduled to see a doctor.
On June 2, Vele was seen by defendant Seabul, an M.D., who inspected Vele’s
prosthetic leg and determined that it was defective. Seabul then referred Vele to an
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outside provider (“Algan’s”) for “a revision” of his prosthesis.

Seabul also examined

Vele’s right elbow and prescribed aspirin for the pain.
On June 10, Vele also submitted a health service request, complaining that aspirin
was not effective in reducing the pain in his right elbow.

Vele submitted additional

requests in July and August, advising Dr. Seabul that the aspirin was “not working” and
that something was “very wrong” with his right elbow. Finally, on August 18, Dr. Seabul
reviewed Vele’s x-rays and diagnosed a fracture.
Transfer to Single Cell and Confiscation of Wheelchair
On August 26, 2014, defendant Miller informed Vele that he was being removed
from his “single handicap cell” and transferred to a double cell. Vele objected that he
could not go into a double cell, because it was not big enough to accommodate his
wheelchair. Miller replied, “Tough, deal with it.” After Vele refused the order to move
out for fear of falling due to his defective prosthetic leg, he was placed in disciplinary
segregation for 90 days.
Following his release from disciplinary segregation, Vele was returned to H-Unit.
On October 21, 2014, a correctional officer named Murphy removed Vele’s wheelchair,
which was parked outside his cell.

Because his prosthetic leg was still not working

correctly, Vele was unable to get to the dining hall without his wheelchair and missed
lunch that day. When asked why he took his wheelchair, Officer Murphy told Vele that
defendant Miller ordered him to do so.
Later that same day, Vele was ordered to walk over to Redgranite’s Health
Services Unit (“HSU”) for medication. Vele advised another officer named Gravunder
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that he did not want to walk because his prosthetic leg was defective and there was a risk
he could fall. Gravunder replied that if Vele did not obey, he would call supervisory
officers (the “White Shirts”) to escort him physically to the HSU. When Vele refused to
obey, he was taken to segregation in a wheelchair.
Subsequently, Vele filed a grievance against defendants Doehling and Miller for
kicking him out of his “handicap cell” and putting him in a double cell that was not
wheel chair accessible. Vele later filed another grievance against Miller and Doehling for
sending Officer Murphy to confiscate his wheelchair. Vele’s grievances were dismissed, as
were his appeals.

OPINION
Fed. R. Civ. P. 20 prohibits a plaintiff from asserting unrelated claims against
different defendants or sets of defendants in the same lawsuit.

More specifically,

multiple defendants may not be joined in a single action unless: (1) the plaintiff asserts
at least one claim to relief against each defendant that arises out of the same transaction
or occurrence, or series of transactions or occurrences; and (2) presents questions of law
or fact common to all.

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

If the

requirements of Rule 20 are satisfied, then a plaintiff may join additional, unrelated
claims against those same defendants under Fed. R. Civ. P. 18(a).
Vele’s complaint unquestionably violates Rule 20 because it includes unrelated
claims against multiple defendants at two different facilities over a period of two years.

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As alleged, Vele’s allegations belong in three separate lawsuits consisting of the following
claims:


Lawsuit #1: Claims Against Defendants Wright, Giese and Burroughs
Arising from Vele’s Injury at the Shawano County Jail.



Lawsuit #2: Claims Against Defendant Seabul Arising Out of Seabul’s
Treatment of Vele’s Elbow Injury.



Lawsuit #3: Claims against Defendants Meisner, Gunderson, Doehling,
and Miller Arising Out of Vele’s Transfer from a Single Cell and Loss of
Wheelchair.2

As a result, Vele will have to choose which of these lawsuits he wants to pursue in
this case; the court will apply Vele’s initial, partial payment and assign this case number
to only that one lawsuit.
Vele may, of course, choose to pursue the other lawsuits as well, but must do so
separately, paying a separate filing fee for each lawsuit he chooses to pursue. In addition,
he may be subjected to a separate strike under 28 U.S.C. § 1915(g) for any lawsuit that is
dismissed for failure to state a claim upon which relief may be granted. Once a prisoner
receives three strikes, he is not able to proceed with new lawsuits without first paying the
full filing fee, except under very narrow circumstances. 28 U.S.C. § 1915(g).
Alternatively, Vele may choose to dismiss the other lawsuits. If he chooses this
route, Vele will not owe an additional filing fee or face a strike for any lawsuit he
dismisses. A lawsuit dismissed voluntarily would also be dismissed without prejudice, so

2

In addition, Vele may have intended to bring claims against defendants or others for failing to
treat his allegedly defective prosthetic leg or accommodate his need for assistance as a result.
However, this is merely hinted at, not pled, and would further complicate the complaint with
multiple, additional claims, or at least require these claims properly pled and added to Lawsuits
#2 and #3, respectively.

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Vele could bring it at another time, so long as he files it before any applicable statute of
limitations has run.
Because Vele faces filing fees and potential strikes for each lawsuit pursued, he
should obviously consider carefully the merits and relative importance of each of his
potential lawsuits before choosing to proceed with respect to some or all of them. Vele
should also be aware that because it is not clear at this time which of his separate lawsuits
he will pursue, the court has not yet assessed the merits of any of the claims raised in the
lawsuits identified above. Once Vele identifies the suit or suits he wants to continue to
pursue, the court will screen the applicable claim(s) as required under 28 U.S.C.
§ 1915A.
If Vele disagrees with the way the court has grouped his claims, or if he believes
the court has left out claims he intended to assert, see, e.g., footnote 2 above, or included
claims he did not intend to assert, Vele may raise those objections in his response, but he
must still comply with this order and choose which of the lawsuits he wishes to pursue in
this case. If he fails to do so, the court will dismiss all of his claims for his failure to
prosecute.

ORDER
IT IS ORDERED that:
1) Plaintiff Dennis Neil Vele may have until January 5, 2016, to identify for the
court which of the numbered lawsuits identified above he wishes to proceed
with under the number assigned to this case. Plaintiff must pick one and only
one of these lawsuits to proceed under Case No. 15-cv-151-wmc.

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2) Vele may also have until January 5, 2016, to advise the court whether he
wishes to pursue either of the other lawsuits under separate case numbers. Any
lawsuit not specifically identified to proceed will be deemed voluntarily
withdrawn.
3) Should Vele fail to respond to this order by January 5, 2016, the court will
enter an order dismissing the lawsuit as it presently exists without prejudice for
his failure to prosecute.
Entered this 15th day of December, 2015.

BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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