Acosta, Reinaldo v. Kennedy, Matt et al

Filing 10

ORDER granting Plaintiff Reinaldo Acosta leave to proceed on an Eighth Amendment claim against defendant G-Four-S Transportation Services. The remainder of plaintiff's complaint, Dkt. 1 , is DISMISSED for failure to comply with Federal Rule of Civil Procedure 8. Plaintiff may have until December 13, 2016, to submit a proposed amended complaint more clearly detailing his claims against individual defendants Plaintiff's 7 Motion for Assistance in Recruiting Counsel is denied without prejudice. Signed by District Judge James D. Peterson on 11/22/2016. (jef),(ps)

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

REINALDO ACOSTA,
Plaintiff,
v.

OPINION & ORDER

MATT KENNEDY et al.,
and G-FOUR-S TRANSPORTATION SERVICES,

16-cv-695-jdp

Defendants.
Plaintiff Reinaldo Acosta, an inmate at the Wisconsin Secure Program Facility, brings
his lawsuit alleging that he was injured while being transported to court by van, because his
seat belt was not properly fastened. Acosta has made an initial partial payment of the filing
free as previously directed by the court.
The next step in this case is to screen the complaint. In doing so, I must 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. Because Acosta is a pro se litigant, I must read his
allegations generously. Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).
After reviewing the complaint with these principles in mind, I conclude that Acosta
may proceed with an Eighth Amendment claim against defendant G-Four-S Transportation
Services, the company responsible for transporting him. But his allegations against individual
defendants violate Federal Rule of Civil Procedure 8, so I will give him a chance to file an
amended complaint that fixes this problem.

ALLEGATIONS OF FACT
Plaintiff Reinaldo Acosta is an inmate at the Wisconsin Secure Program Facility,
which is located in Boscobel, Wisconsin. In June 2016, Acosta was transported from WSPF
to the circuit court for Milwaukee County for a court appearance there. Acosta’s seat belt was
not fastened by the officials involved in transporting him, even though he was handcuffed,
and presumably unable to belt himself in or otherwise protect himself. On the trip back to
WSPF, the driver (who Acosta names as “Bianchi”) stopped abruptly while travelling “at a[]
high rate of speed.” Dkt. 1, at 2. Acosta was “thrown into the windshield.” According to
documents Acosta attaches to the complaint, his neck, back, and elbow were injured in the
incident. Dkt. 1-5, at 1, Dkt. 1-7.

ANALYSIS
A. Acosta’s claims
Acosta is proceeding under 42 U.S.C. § 1983, which requires him to show that
defendants intentionally deprived him of a constitutional right while acting under color of
state law. Cruz v. Safford, 579 F.3d 840, 843 (7th Cir. 2009). Acosta states that he suffered
serious injuries “due to the driver’s indifference,” and he cites an Eighth Circuit case
discussing Eighth Amendment deliberate indifference claims against correctional officers
transporting an inmate, Brown v. Missouri Dep't of Corr., 353 F.3d 1038, 1040 (8th Cir. 2004),
so I take him to be bringing Eighth Amendment claims against defendants. A plaintiff may
prove an Eighth Amendment claim by showing that an official is aware that the plaintiff faces
dangerous conditions but chooses to disregard them. See Farmer v. Brennan, 511 U.S. 825,
837 (1994).

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The facts Acosta alleges could support Eighth Amendment claims against the
individuals who decided to forgo the use of a seat belt while transporting him handcuffed.
But Acosta does not name the driver, “Bianchi,” as a defendant. Acosta names Matt Kennedy
as a defendant, but he does not describe Kennedy’s job responsibilities or whether he was
even involved in his transport.
Acosta includes the phrase “et al.” in the caption of his complaint, which is commonly
used to stand in the place of additional parties. This suggests that he intends to name more
individuals as defendants. But he cannot sue other individuals without formally including
each of them in the caption of his complaint. Also, I cannot allow Acosta to proceed on
claims against any defendant, even one named in the caption, unless he explains what that
defendant did to violate his rights. Each defendant is entitled to know what Acosta is alleging
they did to harm him. See Fed. R. Civ. P. 8(a)(2) (complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.”).
Because Acosta’s allegations against individual defendants do not comply with Rule 8,
I will dismiss those portions of the complaint and give him a short time to provide an
amended complaint that explains those claims. He should draft his amended complaint as if
he were telling a story to people who know nothing about his situation. In particular, he
should (1) name each person he wishes to sue in the caption of the complaint; and (2)
explain what each defendant did to harm him.
Acosta also names G-Four-S Transportation Services as a defendant. I can infer from
Acosta’s allegations that this company contracted with prison or court officials to transport
him. Acosta alleges that his seat belt was not fastened “due to driver[’s] lack of training,”
Dkt. 1, at 3. A § 1983 plaintiff may bring a constitutional claim against a corporation for

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failing to train its employees when that failure is the result of a custom or policy of the
corporation. See City of Canton v. Harris, 489 U.S. 378, 389 (1989); Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978); Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008).
Construing Acosta’s allegations generously, I will allow him to proceed on an Eighth
Amendment claim against G-Four-S Transportation Services. But at the summary judgment
or trial stage, Acosta will have to provide evidence showing that the lack of employee training
was caused by a company custom or policy. I will direct service on G-Four-S Transportation
Services after Acosta clarifies his claims against individual defendants.
B. Recruitment of counsel
Acosta has filed a motion asking the court to appoint counsel for him. Dkt. 7.
Litigants in civil cases do not have a constitutional right to a lawyer, but I have discretion to
determine whether assistance in recruiting counsel is appropriate in a particular case. Pruitt v.
Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007).
To show that it is appropriate for the court to recruit counsel, a litigant must first
show that he has made reasonable efforts to locate an attorney on his own. See Jackson v. Cty.
of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992) (“the district judge must first determine
if the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the
indigent 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. Acosta has
submitted three such letters, so I conclude that he has met this requirement.
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

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record that the legal and factual difficulty of the case exceeds his ability to prosecute it.
Pruitt, 503 F.3d at 654-55. Acosta states that it will be difficult for him to litigate this case
because of his imprisonment, limited access to the law library, and limited knowledge of the
law. But these are common barriers in prisoner litigation, and it is too early to tell whether
Acosta truly will be unable to litigate the case himself. Also, the case has not yet reached the
relatively early stage in which defendants may move for summary judgment based on
exhaustion of administrative remedies. Such a motion could result in dismissal of this case
before it advances deep into the discovery stage. Should the case proceed past the exhaustion
stage and should Acosta continue to believe that he cannot litigate the suit himself, then he
should renew his motion. But he will need to explain specifically what litigation-related tasks
he has been unable to complete.

ORDER
IT IS ORDERED that:
1. Plaintiff Reinaldo Acosta is GRANTED leave to proceed on an Eighth Amendment
claim against defendant G-Four-S Transportation Services.
2. The remainder of plaintiff’s complaint, Dkt. 1, is DISMISSED for failure to comply
with Federal Rule of Civil Procedure 8.
3. Plaintiff may have until December 13, 2016, to submit a proposed amended
complaint more clearly detailing his claims against individual defendants, as discussed
above. If plaintiff submits a proposed amended complaint, I will take that complaint
under advisement for screening. If plaintiff fails to respond to this order by the
deadline, the case will proceed only with his claim against defendant G-Four-S
Transportation Services.

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4. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 7, is
DENIED without prejudice.
Entered November 22, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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