Rozak, Ryan v. Hepp, Randall et al

Filing 15

ORDER dismissing plaintiff's 1 , 11 Complaint pursuant to Fed. R. Civ. P. 8 and 20. Plaintiff's 12 Motion for Temporary Restraining Order and 9 Motion for Assistance in Recruiting Counsel are denied without prejudice. Amended Complaint due 10/20/2015. Signed by District Judge James D. Peterson on 9/30/2015. (jef),(ps)

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

RYAN K. ROZAK,

v.

Plaintiff,

OPINION & ORDER
15-cv-207-jdp

RANDALL HEPP, GEORGE COOPER,
MARK SCHOMISCH, HOLLY MEIER,
MR. PAUH, and MR. OTTO,
Defendants.
Pro se plaintiff Ryan Rozak, a prisoner in the custody of the Wisconsin Department of
Corrections at the Fox Lake Correctional Institution, has filed a complaint alleging that he is
not being given medically prescribed high-protein, high-calorie meals, and that prison officials
are opening his legal mail. He has also filed a supplement stating that prison officials are
retaliating against him for filing this lawsuit, as well as a motion for the court’s assistance in
recruiting him counsel, and a motion for temporary restraining order. Plaintiff seeks leave to
proceed with his case in forma pauperis, and he has already made an initial partial payment of
the filing fee previously determined by the court.
The next step is for the court to screen the complaint and dismiss any portions that
are legally frivolous, malicious, fail to state a claim upon which relief may be granted, or ask
for money damages from a defendant who by law cannot be sued for money damages. 28
U.S.C. § 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 (1972).
After considering plaintiff’s allegations, I will dismiss plaintiff’s complaint for failure
to comply with Federal Rules of Procedure 8 and 20, but I will give him an opportunity to

submit an amended complaint that more clearly explains the basis for his claims. Also, I will
deny plaintiff’s motion for appointment of counsel and motion for temporary restraining
order without prejudice to his refiling them at a later date.

ALLEGATIONS OF FACT
Plaintiff Ryan Rozak is a prisoner in the custody of the Wisconsin Department of
Corrections at the Fox Lake Correctional Institution. On September 21, 2013, plaintiff was
placed on a high-protein, high-calorie diet with double meat portions and extra snack bag by
a doctor because he was “under weight.” On February 13, 2015, the “main kitchen took [the
special diet] away from” plaintiff. Plaintiff’s allergy to fish is noted in his medical file, yet he
is still served fish on a regular basis (plaintiff seems to say that fish is served every Friday).
This results in plaintiff going hungry. Plaintiff has submitted exhibits indicating that
defendants Mr. Pauh and Mr. Otto (who work in the kitchen) were consulted by defendant
institution complaint examiner George Cooper in Cooper’s investigation of plaintiff’s
grievances. I understand plaintiff to be alleging that Cooper recommended denial of the
grievances and defendant Warden Randall Hepp approved these recommendations.
Plaintiff also alleges that “they” have opened his legal mail without him being present,
but plaintiff does not explain which of the named defendants are involved in these actions.
Plaintiff has submitted a supplement to the complaint, Dkt. 11, in which he states
that he was denied a prison job because of this and another lawsuit he has filed against prison
officials. He also states that various officials are harassing him, although he does not explain
in detail what form this harassment takes.

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ANALYSIS
A. Plaintiff’s allegations
I understand plaintiff to be bringing a claim under the Eighth Amendment, which
prohibits cruel and unusual punishment, for being denied medically prescribed high-protein,
high-calorie meals. Plaintiff’s allegations regarding this claim are easy to understand and he
has named defendants (Hepp, Cooper, Pauh, and Otto) involved in this deprivation. Plaintiff
alleges that various prison officials are retaliating against him for filing this and another
lawsuit. Plaintiff also includes allegations about his mail being opened, but he does not
explain how these events are related to claim about his meals, nor does he explain which
prison officials participated in this alleged deprivation.
Taking all of his allegations together, plaintiff’s complaint violates the Federal Rules of
Civil Procedure. Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a
short and plain statement of the claim showing that the pleader is entitled to relief.” A
complaint “must be presented with intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and if so what it is.” Vicom, Inc. v. Harbridge
Merchant Serv’s, Inc., 20 F.3d 771, 775 (7th Cir. 1994). Plaintiff’s allegations about his meals
are understandable, but his allegations regarding legal mail does not include the names of the
prison officials who took action against him. Some of plaintiff’s allegations about retaliatory
harassment are understandable (for instance his allegation that he was denied a prison job)
but much of what he says is conclusory and does not explain what each named defendant did
to retaliate against him and how it was connected to his lawsuits. He also names various
prison officials in his supplement regarding retaliation, but many of these officials are not

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named as defendants in the caption of his complaint, which is necessary to bring claims
against them.
Plaintiff’s complaint also appears to violate Federal Rule of Civil Procedure 20. 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 transactions or occurrences and present questions of law or fact that are
common to them all. George v. Smith, 507 F. 3d 605, 607 (7th Cir. 2007). If the prison
officials who opened plaintiff’s mail are different from those involved in denying him meals,
he will not be able to pursue both sets of claims in one lawsuit.
Therefore, I will dismiss the complaint, at least as it is presently structured. Plaintiff
should submit an amended complaint, explaining his allegations as if he were telling a story
to people who know nothing about his situation. Plaintiff should simply state (1) what acts
he believes violated his rights; (2) what rights were violated; (3) the specific person who
committed those acts; and (4) what relief he wants the court to provide. He should state the
facts of what actually happened rather than make broad allegations to the effect that his
rights were violated without explaining exactly how he thinks his rights were violated. He
should also name as a defendant in the caption each prison official against whom he wishes
to bring claims.
B. Recruitment of counsel
Plaintiff has filed a motion for the court’s assistance in recruiting him counsel. Dkt. 9.
To show that it is appropriate for the court to recruit counsel, plaintiff must first show that
he has made reasonable efforts to locate an attorney on his own. See Jackson v. Cnty. of
McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992) (“the district judge must first determine if

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the indigent [person] has made reasonable efforts to retain counsel and was unsuccessful or
that the indigent [person] was effectively precluded from making such efforts”). To meet this
threshold requirement, this court generally requires plaintiffs to submit correspondence from
at least three attorneys to whom they have written and who have refused to take the case.
Plaintiff has provided several such letters.
Second, this court will seek to recruit counsel for a pro se litigant only when the
litigant demonstrates that his case is one of those relatively few in which it appears from the
record that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt
v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). I have not yet allowed plaintiff to proceed
with any claims, which usually means that it is too early in the case to tell whether counsel is
needed. The task of submitting an amended complaint should not be beyond plaintiff’s
capabilities. Further, even if plaintiff submits an amended complaint that states claims that
can proceed in this court, the case has not passed the relatively early stage in which a
defendant may file a motion for summary judgment based on exhaustion of administrative
remedies, which often ends up in dismissal of cases such as plaintiff’s before they advance
deep into the discovery stage of the litigation. Should the case pass the exhaustion stage and
plaintiff believes that he is unable to litigate the suit himself, he may renew his motion.
C. Preliminary injunctive relief
Plaintiff has also submitted a motion for temporary restraining order, Dkt. 12, in
which he states that he is being “bullied” by guards and fears being sent to segregation.
Plaintiff has not yet been allowed to proceed on any of his claims, which would be reason
enough to deny the motion. Even if I were to consider this filing as a properly filed motion
for temporary restraining order under Federal Rule of Civil Procedure 65(b), plaintiff falls far

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short of showing that this is one of the extremely rare situations in which the court would
issue an ex parte restraining order changing the status quo of a prisoner’s treatment. See
Granny Goose Foods, Inc. v. Bhd of Teamsters, 415 U.S. 423, 439 (1974) (issuance of temporary
restraining orders is generally “restricted to . . . preserving the status quo”); Jordan v. Wolke,
593 F.2d 772, 774 (7th Cir. 1979) (While “there may be situations justifying a mandatory
temporary injunction compelling the defendant to take affirmative action, . . . mandatory
preliminary writs are ordinarily cautiously viewed and sparingly issued.”).
If I were to consider plaintiff’s motion as one for preliminary injunctive relief under
Rule 65(a), the motion does not comply with this court’s procedures to be followed on
motions for injunctive relief. Under these procedures, a plaintiff must file with the court and
serve on defendants proposed findings of fact supporting his claim, along with any evidence
he has to support those findings and his request for relief. I will deny the motion without
prejudice to plaintiff renewing it at a later time. If plaintiff does choose to renew his motion,
he will need to explain in much more detail why he believes he is in danger, and how that
danger relates to the claims in this lawsuit.

ORDER
IT IS ORDERED that:
1.

Plaintiff Ryan Rozak’s complaint, Dkt. 1 and 11, is DISMISSED for failure to
comply with Federal Rules of Civil Procedure 8 and 20. Plaintiff may have
until October 20, 2015, to submit an amended complaint addressing the
problems detailed in the opinion above. Should plaintiff fail to submit an
amended complaint by this deadline, I will direct the clerk of court to enter
judgment dismissing the case.

2.

Plaintiff’s motion for the court’s assistance in recruiting counsel, Dkt. 9, is
DENIED without prejudice to plaintiff renewing his motion later in the
proceedings.

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3.

Plaintiff’s motion for a temporary restraining order, Dkt. 12, is DENIED
without prejudice.

Entered September 30, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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