Jackson, Sylvester v. Hepp, Randall et al

Filing 18

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 17 Notice of Appeal. (Attachments: # 1 Order, 9/27/16, # 2 Order, 1/9/17, # 3 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SYLVESTER JACKSON,
OPINION and ORDER
Plaintiff,
16-cv-542-bbc1
v.
RANDALL HEPP, JUDY SMITH,
DEBRA BOYD, RICK RAEMISCH,
GARY HAMBLIN, M. OLSEN,
P. SCHULZ, TAMMY MAASSEN,
CAPT. COOK, CAPT. FOSTER,
CAPT. JENSEN, LT. LACOST,
SGT. GARCIA, SGT. GEROGE,
DGT. GILLET, C/O LEE, T. MARCO,
C/O OLSON, C/O PETKOVSEK,
C/O BIDDLE, DEBRA TIDQUIST,
KENNETH ADLER, GEORGIA KOSTOHRYZ,
MS. DOUGHERTY, MR. FLIEGER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This case brought by pro se plaintiff and prisoner Sylvester Jackson was
administratively closed on November 22, 2016, after the court determined that the case
needed to be severed in accordance with Fed. R. Civ. P. 20 and 21, but plaintiff failed to
instruct the court whether he wished to dismiss some of the unrelated claims or open new
lawsuits. Dkt. #12. Judge Crabb stated that plaintiff could ask the court to reopen the case

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Because Judge Crabb is on medical leave, I am issuing this order to prevent an undue
delay in the progress of the case.
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for good cause. Id. Now plaintiff has filed a document in which he asks the court to reopen
the case and reconsider both the decision denying plaintiff indigent status under 28 U.S.C.
§ 1915 and the decision that the case needs to be severed. For the reasons explained below,
I am granting the motion to reopen but I am denying the motions for reconsideration. In
addition, I am giving plaintiff one more chance to tell the court how he wishes to proceed
with all of this claims.

OPINION
A. Procedural History
On August 1, 2016, plaintiff filed a complaint that included more than three dozen
claims against more than two dozen defendants, raising a wide range of issues such as
inadequate medical care, unfair discipline, harassment, denial of legal materials, race
discrimination, failure to protect plaintiff from an assault by another prisoner and excessive
force. Dkt. #1. After Magistrate Judge Peter Oppeneer concluded that plaintiff was not
entitled to proceed in forma pauperis, dkt. #6, plaintiff paid the filing fee and the court
screened the complaint in accordance with 28 U.S.C. § 1915(e)(2) and § 1915A.
In the September 27, 2016 screening order, dkt. #7, Judge Crabb concluded that
plaintiff had improperly joined many of his claims because plaintiff had tried to combine
unrelated claims against different defendants. She provided the following reasoning:
Under Fed. R. Civ. P. 20, Fed. R. Civ. P. 21 and a court's inherent authority,
a lawsuit may be severed when it includes unrelated claims against different
defendants. Lee v. Cook County, Illinois, 635 F.3d 969, 971 (7th Cir. 2011);
In re High Fructose Corn Syrup Antitrust Litigation, 361 F.3d 439, 441 (7th
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Cir. 2004); Aiello v. Kingston, 947 F.2d 834, 835 (7th Cir. 1991). As the
Court of the Appeals for the Seventh Circuit has stated, "[a] litigant cannot
throw all of his grievances, against dozens of different parties, into one
stewpot." Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th
Cir. 2012). Lawsuits with so many unrelated claims are both unfair to
defendants (who must participate in many proceedings that have little to do
with them) and difficult to manage for the court and the plaintiff (who may
find it impossible to litigate so many claims at the same time, with or without
a lawyer). Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) ("[U]nrelated
claims against different defendants belong in separate lawsuits . . . to prevent
the sort of morass produced by multi-claim, multi-defendants suits.") (internal
quotations omitted). Thus, when a plaintiff tries to cram too much into one
case, the court may require the plaintiff "to file separate complaints, each
confined to one group of injuries and defendants." Wheeler, 689 F.3d at 683.
Dkt. #7 at 2.
Judge Crabb concluded that the claims in plaintiff’s complaint belonged in 12
different lawsuits related to the following subject matters: (1) plaintiff’s interactions with
defendant Garcia and the discipline plaintiff received for complaining about Garcia; (2)
interference with plaintiff’s lawsuit against the warden and subsequent retaliation; (3) delays
in receiving medical appointments; (4) plaintiff’s conditions of confinement while he was
housed in segregation in August 2011; (5) discipline that plaintiff received arising out of an
“altercation” with defendant George; (6) a threat by defendant Petkovsek; (7) refusals by
health care staff to provide medical treatment to plaintiff in 2012; (8) interference with
plaintiff’s ability to communicate with his lawyer; (9) incidents arising out of another
prisoner’s assault of plaintiff; (10) race discrimination in the context of housing and job
assignments; (11) an allegedly false conduct report that plaintiff received in 2012; and (12)
verbal and physical harassment by defendant Biddle. (A more thorough description of the
way Judge Crabb grouped the lawsuits is in the September 27 order.)
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Judge Crabb gave plaintiff until October 12, 2016, to do the following: (1) identify
for the court which one of the twelve sets of claims he wanted to pursue under the case
number assigned to this case; and (2) inform the court which other sets of claims he wanted
to pursue under separate case numbers, if any, and which claims he would dismiss
voluntarily, if any.
On October 13, 2016, the court received a response from plaintiff in which he
identified which set of claims he wanted to pursue under this case number. Dkt. #8.
However, he did not say what he wanted to do with his remaining claims—dismiss them or
pursue them in separate cases. Instead, plaintiff said that he would file “within a few days”
a motion for reconsideration on the decision to sever his case. Id. Because plaintiff did not
inform the court how he wanted to dispose of all of his claims and he stated that a motion
for reconsideration of the severance decision was imminent, the court deferred a screening
of the merits of plaintiff’s claims.
On October 31, 2016, plaintiff stated that he needed two more weeks to prepare his
motion for reconsideration because of an “unknown medical condition” in his hands that
made it painful for him to write. Dkt. #9. In response, the Judge Crabb gave plaintiff a
November 15, 2016 deadline to either (1) file a motion for reconsideration of the September
27, 2016 order; or (2) inform the court that he is not filing a motion for reconsideration of
the September 27, 2016 order and then identify which sets of claims identified in that order
he wished to pursue in separate cases and which sets of claims he wished to dismiss without
prejudice to his refiling them at a later date. Plaintiff was to accompany any additional

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requests for time with medical evidence showing that he was unable to write. Judge Crabb
informed plaintiff that, if he did not respond by the deadline, she would direct the clerk of
court to close the case administratively. Dkt. #10.
On November 16, 2016, plaintiff filed another motion for an extension of time
because of an unknown medical condition in his hands. Dkt. #11. However, he did not
provide any medical documentation or explanation of his condition. In addition, plaintiff
provided no information about the progress he had made on his motion or how much longer
he believed it would take him to draft it. Finally, plaintiff did not explain why he was unable
to type his motion as he had done with his complaint.
In an order dated November 22, 2016, Judge Crabb stated that the case could not
move forward until plaintiff decided what to do with all of his claims. Dkt. #12. Because
plaintiff had not given any indication that he would make that decision any time soon, she
denied his request for an extension of time and administratively closed the case. She stated
that plaintiff was free to ask the court to reopen the case when he is ready if he had good
cause for doing so.
On December 1, 2016, the court received plaintiff’s current motion.

B. Motion to Reopen
In requesting to reopen the case, plaintiff does not show why he has good cause.
Instead, he cites a health services request in which he alleges that his hands “are locking up
and [the] joints in [his] fingers hurt[].” Dkt. #13-1. In addition, he cites a 62-page

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complaint in a case filed in the Eastern District of Wisconsin in which he alleges that he is
not receiving adequate medical care. Neither of these documents shows that plaintiff was
unable for more than two months to comply with the court’s order to specify which claims
he wanted to pursue in separate lawsuits. In fact, plaintiff’s complaint and subsequent filings
in the other case undermines any allegation that a medical condition prevented plaintiff from
complying with this court’s order; plaintiff submitted those filings in September, October
and November 2016, the same time that plaintiff should have been responding to the court’s
orders in this case. However, because only a few days passed between the decision to close
the case and the filing of plaintiff’s new motion, I will grant plaintiff’s motion to reopen the
case.

C. Indigency Status
Plaintiff objects to the court’s determination that he does not qualify to proceed in
forma pauperis under 28 U.S.C. § 1915. Plaintiff believes that he should qualify because his
trust fund account contained less than three dollars at the time he filed his motion to
proceed in forma pauperis.
Plaintiff’s observation is correct, but he overlooks the nearly $6000 he had in his
release account and his release savings account. Under 28 U.S.C. § 1915(b)(1), a prisoner
litigant must prepay 20% of the greater of the average monthly balance or the average
monthly deposits made to his “prison account” in the six-month period immediately
preceding the filing of the complaint. In making this determination, the court considers the

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prisoner’s release accounts as well as his trust fund account. Carter v. Bennett, 399 F. Supp.
2d 936, 936 (W.D. Wis. 2005); Spence v. McCaughtry, 46 F. Supp. 2d 861, 863 (E.D. Wis.
1999). This is because the language of § 1915 does not make a distinction between the two
types of prisoner accounts.
In this case, 20% of the average monthly balance of all of plaintiff’s accounts is
$1220.81, and 20% of the average monthly deposits made to his account is $3.37. Because
the greater of the two amounts is 20% of the average monthly balance, or $1220.81, plaintiff
did not qualify as indigent and was responsible for paying the full $400.00 filing fee.
Accordingly, I am denying plaintiff’s motion for reconsideration of this issue.

D. Severance
Plaintiff argues that he is entitled to bring all of his claims in one lawsuit because all
the defendants’ alleged actions were “the result of [plaintiff’s] filing complaints against staff
and for filing a 42 U.S.C. [§]1983 complaint against the warden.” Dkt. #13 at 3. Plaintiff
does not cite any portion of his complaint in which he sets forth allegations that all of his
claims are based on a theory that defendants retaliated against him for filing complaints
against prison officials and I uncovered no such allegations in my own review of the
complaint. Rather, plaintiff alleges a variety of motivations for the different conduct alleged,
including both retaliation and racial discrimination. In addition, with respect to some
claims, plaintiff does not allege a particular motivation. For example, he alleges that some
defendants acted with deliberate indifference to his health and safety. In any event, even if

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plaintiff were alleging that all of defendants’ conduct was motivated by retaliatory animus,
it would not entitle plaintiff to bring the dozens of claims he has asserted in a single case.
First, even under his newly stated theory, plaintiff seems to admit that different
defendants were motivated by different complaints that he filed against different officials.
Plaintiff cannot join claims against different defendants simply because the claims are based
on a similar legal theory. The claims must arise “out of the same transaction, occurrence,
or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(1)(A). In other words, there
must be some factual overlap among the claims.

E.g., Liebzeit v. Raemisch, No.

10-cv-170-slc, 2010 WL 2486366, at *2 (W.D. Wis. June 16, 2010) (severing claims arising
under free exercise clause because there was no factual overlap among claims); Nelson v. Aim
Advisors, Inc., No. 01-CV-0282-MJR, 2002 WL 442189, at *3 (S.D. Ill. Mar. 8, 2002)
(“The fact that Plaintiffs have made claims against each Defendant under identical federal
statutory provisions does not mean that there are common issues of law and fact sufficient
to satisfy Rule 20(a).”); Minasian v. Standard Chartered Bank, PLC, No. 93 C 6131, 1994
WL 395178, at *3 (N.D. Ill. July 27, 1994) (“The similarity of the legal theories under
which the parties would proceed is also insufficient to support joinder.”). The court in the
Eastern District of Wisconsin recently reached the same conclusion as to various claims that
plaintiff filed regarding allegedly inadequate medical care. Jackson v. Balsewicz, No. 16-cv1253-WCG (E.D. Wis. Dec. 15, 2016), dkt. #23 at 2-3 (“[I]t is clear that most of the
claims should not be joined in a single action. . . . [F]or example, the asthma-based claim
against Nurse Eppegg has nothing to do with the claim against Nurse Jennifer, who is

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alleged to have mistreated an ulcer on Jackson’s foot.”).
Second, even if plaintiff means to allege that each that all of the alleged actions in this
lawsuit were part of a vast conspiracy among more than two dozen defendants to retaliate
against him for filing a single complaint that he filed, I could not credit such a conclusory
allegation, even at the pleading stage. “[C]onspiracy allegations [are] often held to a higher
standard than other allegations; mere suspicion that persons adverse to the plaintiff had
joined a conspiracy against him or her [is] not enough.” Cooney v. Rossiter, 583 F.3d 967,
970–71 (7th Cir. 2009). See also Rivera v. Schultz, No. 12-cv-240-bbc, 2012 WL 2680822,
at *1 (W.D. Wis. July 5, 2012) (applying Cooney to deny joinder under Rule 20), aff'd, 556
F. App'x 500 (7th Cir. 2014); Holliman v. Paquin, No. 10-cv-443-slc, 2010 WL 3732124,
at *1 (W.D. Wis. Sept. 16, 2010) (same).
Plaintiff advances an alternative argument that joinder should be allowed because
defendant Randall Hepp, the warden of the prison, is included in all of the claims.
Presumably, plaintiff is relying on Fed. R. Civ. P. 18, which allows joinder of even unrelated
claims if they are asserted against the same defendant. Again, however, plaintiff does not
cite portions of his complaint showing that Hepp was involved in each of the alleged
incidents and my own review of the complaint does not support the assertion. Further, most
of plaintiff’s claims against Hepp are simply that he refused to take corrective action after
another defendant violated plaintiff’s rights. E.g.. Cpt. ¶¶ 40-42, 47, 55, and 67.
Even if I assume that such limited involvement would be sufficient to permit joinder
under Rules 18 and 20, I would still exercise my discretion and sever the claims. Rules 18

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and 20 do not give a plaintiff a “right” to bring in one case as many claims as he can against
the same defendant, particularly when there are so many other defendants and there is little
overlap among the claims. Rather, “[i]f other issues predominate over the common question,
the district judge is entitled to sever the suit.” Lee, 635 F.3d at 971 (citing Fed. R. Civ. P.
20(b), 21). Because the differences between the different sets of claims greatly outweigh
their similarities, I am not persuaded that they should be litigated together.
Unfortunately, plaintiff still does not say in his motion whether he wants to dismiss
the unrelated claims or pursue them in a separate lawsuit. I will give plaintiff one more
opportunity to do so. If he does not comply this time, the court will dismiss without
prejudice all of his claims except those included in what Judge Crabb called “Lawsuit #1,”
Sept. 27, 2016 order, dkt. #7, at 3, because those are the claims that plaintiff stated he
wishes to pursue under case no. 16-cv-542-bbc. Dkt. #8. If the other claims are dismissed,
the statute of limitations will continue to run as to those claims. Once it is determined how
plaintiff wishes to proceed with all of his claims, the court will screen the merits of plaintiff’s
claims in accordance with 28 U.S.C. § 1915(e)(2) and § 1915A.

ORDER
IT IS ORDERED that
1. Plaintiff Sylvester Jackson’s motion to reopen, dkt. #13, is GRANTED.
2. Plaintiff’s motion for reconsideration, dkt. #13, is DENIED.
3. Plaintiff may have until January 23, 2017, to inform the court which claims he

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wishes to pursue in separate lawsuits and which claims which he claims he wishes to dismiss
without prejudice. If plaintiff does not respond by January 23, the court will dismiss all
claims other than those included in “Lawsuit #1.”
Entered January 6, 2017.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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