Kidd, Robert v. Waupun Correctional Institution

Filing 77

ORDER that Plaintiff Robert Pierre Kidd's motions to voluntarily dismiss case no. 17-cv-712-jdp, Dkt. 14 ; Dkt. 16 ; Dkt. 34 ; Dkt. 48 in the '712 case, are GRANTED. This case is DISMISSED without prejudice, and plaintiff will not ow e the $350 filing fee for the case.Plaintiff's motions regarding confiscation of funds from his veteran's pension, Dkt. 66 ; Dkt. 67 ; Dkt. 72 in case no. 17-cv-265-jdp, are DENIED.Plaintiff's motions for modification of his monthly filing-fee payments, Dkt. 72 in the '265 case; Dkt. 87 in case no. 17-cv-597-jdp; Dkt. 48 in the '712 case, are DENIED. Plaintiff's motion to amend the caption, Dkt. 88 in the '597 case, is DENIED.Plaint iff may have until October 5, 2018, to submit a brand-new complaint joining any claims about his seizures that he wishes to be litigated together in one lawsuit.Defendants' motion for leave to file an amended answer, Dkt. 85 in the '597 case, is GRANTED. Signed by District Judge James D. Peterson on 9/14/2018. (jef),(ps)

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

ROBERT PIERRE KIDD,
Plaintiff,
v.
WAUPUN CORRECTIONAL INSTITUTION,

ORDER
17-cv-265-jdp1

Defendant.
Plaintiff Robert Pierre Kidd, a prisoner at the Waupun Correctional Institution, has five
cases pending before this court:
•

17-cv-265-jdp: Kidd alleges that in July 2016, prison staff
pepper sprayed him while he was having a seizure.

•

17-cv-597-jdp: Kidd alleges that he was held down and
pepper sprayed during a seizure in December 2014 even
though prison officials were told not to handcuff him
during seizures.

•

17-cv-712-jdp: Kidd alleges that he receives ibuprofen as
treatment for an unnamed medical problem. He also states
that he was accused of faking a seizure.

•

18-cv-313-jdp: Kidd alleges that he was billed about $540
for a correctional officer’s injuries after a March 2018
incident involving another seizure.

•

18-cv-707-jdp: Kidd alleges that he was placed in
segregation for having a seizure and that the conditions
there are dangerous because of his illness.

Kidd also filed several other cases that are now closed. Some he dismissed voluntarily,
case nos. 17-cv-598-jdp, 17-cv-627-jdp, and 17-cv-654-jdp, and others were dismissed either

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Although I set forth only the caption of case no. 17-cv-265-jdp above, the clerk of court is
directed to docket this opinion in each of Kidd’s other pending cases and in case no. 17-cv660-jdp.

because he failed to submit an initial partial payment of the filing fee, case no. 18-cv-81-jdp,
or because his claims challenged the validity of his conviction, case no. 17-cv-660-jdp.
Kidd has filed a series of motions in his open cases and the closed ’660 case, many of
them captioned in multiple cases and having to do with filing-fee-collection issues that are
common to most of his lawsuits. I will address all of his pending motions in this order.
A. Case no. 17-cv-712-jdp
After Kidd filed several cases, he requested to close some of them. I dismissed the ’598,
’627, and ’654 cases without prejudice and concluded that Kidd would not owe filing fees for
those cases. See Dkt. 37 in the ’265 case. Kidd asked for the payments he made in those cases
to be applied to his other cases. He had not made payments in two of the cases, but I directed
the clerk of court to transfer his initial partial payment of the filing fee in case no. ’598 case to
case no. 17-cv-712. Id. Kidd has responded to that order, stating that he also wished to close
the ’712 case. See Dkt. 14; Dkt. 16; Dkt. 34; Dkt. 48 in the ’712 case. I will dismiss the ’712
case, and I conclude that Kidd will not owe the filing fee for that case. I will direct the clerk of
court to transfer payments from that case into his other cases.
B. Motion to reimburse funds
Kidd has filed a series of motions asking the court to direct prison staff to return $94.44
that they withdrew from his veteran’s pension income to pay restitution in a prison disciplinary
matter. Dkt. 66; Dkt. 67; Dkt. 72 in the ’265 case. But none of Kidd’s lawsuits are about the
confiscation of these funds, so this court has no authority to consider the issue. I will deny
these motions. Kidd is free to file a lawsuit about this issue, but if he chooses to do so, he will
have to first exhaust his administrative remedies in the prison inmate grievance system.

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C. Modification of monthly payments
Kidd has filed a series of motions in which he asks the court to direct prison officials to
submit specific payment amounts from his prison accounts to this court to apply toward his
various filing fees here. See Dkt. 72 in the ’265 case; Dkt. 87 in the ’597 case; Dkt. 48 in the
’712 case. In one of his motions he asks for funds to be taken from his release account, and in
others he asks for a system to be implemented under which specific amounts would be
automatically withdrawn from his account each month and sent to the court to pay off his
respective fees. He submits a letter from a DOC financial specialist stating that the prison’s
computer system cannot set up automatic monthly payments of the sort Kidd wants, and that
Kidd will have to submit disbursement requests for each voluntary payment he wishes to make.
See Dkt. 87-1 in the ’597 case.
I’m not convinced that that it would be impossible for the DOC to establish an
automatic voluntary payment system for Kidd, seeing as it already administers monthly
payments under 28 U.S.C. § 1915 for each prisoner who files a lawsuit in this court in forma
pauperis. But ultimately, the system’s capabilities are irrelevant, because this issue does not
come within the court’s limited authority to tell prison officials how to administer filing-fee
payments. I can direct prison officials to comply with § 1915’s payment mechanism, including
the use of release-account funds to make an initial partial payment of the filing fee. I could also
consider the issue if the DOC’s decisions blocked Kidd’s ability to litigate his cases, or if Kidd
brought a separate lawsuit alleging that the decision violated his rights in some way. But none
of those scenarios is present here. There is simply no reason for me to intervene in the DOC’s
policy on how inmates may make voluntary payments. So I will deny these motions.

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D. Joinder of remaining cases
With the dismissal of the ’712 case, Kidd’s remaining cases are all related to the way
prison officials treat him when he has a seizure. Previously I had concluded that Kidd’s cases
appeared to concern separate isolated incidents, but I told him that he could amend his
complaints to make a connection that might justify considering all of his claims in one case
instead of multiple cases. See Dkt. 37 in the ’265 case, at 3. Kidd filed a motion to join the
’597 and ’313 cases, and I concluded that his new allegations possibly gave reason to consider
the cases together: he appeared to be saying that WCI employees have a practice of using force
against him when he has a seizure—they handcuff him, hold him down, and in at least one
incident, tried to tase him. See Dkt. 53 in the ’597 case, at 2. But his allegations, scattered
among several documents, were not in a form that complied with the Federal Rules of Civil
Procedure, so I gave him a chance to submit a complaint combining his allegations. Id. at 2–3.
Kidd responded by stating that no longer wished to combine the new cases, so I set a new
deadline for him to amend his complaint in the ’313 case, and the ’597 case proceeded as
scheduled. Dkt. 65 in the ’597 case, at 2.
Now Kidd has changed course again, filing motions asking the court to combine the
’597 and ’313 cases, e.g., Dkt. 73; Dkt. 75; Dkt. 76 in the ’597 case. He has also filed a motion
to amend the caption of the ’597 case to remove the individual defendants and instead name
the Waupun Correctional Institution as defendant, stating that he wishes to sue “the employer”
rather than prison employees, Dkt. 88 in the ’597 case. He also filed a brand-new complaint,
opened as case no. 18-cv-707-jdp, about an incident in July 2018 in which he was placed in
segregation for having a seizure. He states that he is in danger of a seizure-related injury there
because he is not in observation status. Again, he names the prison itself as a defendant.

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Kidd misunderstands who can be named as a defendant in a civil-rights lawsuit brought
under 42 U.S.C. § 1983. The state of Wisconsin, its agencies, or its entities such as WCI cannot
be sued for constitutional violations because they are not “persons” within the meaning of
§ 1983. Dkt. 21 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 65–66 (1989)). Kidd
could bring claims for injunctive relief against the state by suing high-level WCI or DOC
officials in their official capacity, see Kentucky v. Graham, 473 U.S. 159, 165–67 (1985), but he
would still need to name an individual as a defendant instead of WCI, and even then he could
not pursue claims for the money damages he seeks. To bring a claim for money damages, he
needs to name as defendants the individuals who were personally involved in violating his
rights. So I will not allow him to name WCI as the defendant in any of these lawsuits.
But Kidd’s filings, and his statement that he wishes to sue “the employer” support the
idea that he believes that the various incidents raised in his four cases are connected because
prison employee’s actions were to some degree the result of prison policies or practices
regarding how prison staff responded to his seizures. If the facts underlying the four lawsuits
are related, there is no reason for there to be four separate lawsuits. But I still cannot join any
of them without Kidd producing a single complaint that explains what happened to him with
regard to each incident.
So I will give Kidd a final opportunity to submit an amended complaint that explains
what happened to him in each incident he mentions in his four lawsuits. Unless Kidd explicitly
says that he does not want to join any of the lawsuits, the new complaint will completely
replace all of his previously filed complaints. Kidd should draft his new complaint as if he were
telling a story to people who know nothing about his situation. He should state (1) what acts
he believes violated his rights; (2) what rights were violated; (3) who committed those acts;

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and (4) what relief he wants the court to provide. As I stated above, he cannot maintain claims
for money damages unless he names specific individual prison employees as defendants in the
caption of the complaint, and then explains how each defendant caused him harm. He should
also explain why the separate incidents are related to one another. If he believes that the prison
has a policy or practice concerning how staff handles his seizures, he should explain who created
or enforced that policy or practice. If Kidd does not know the identity of particular defendants,
he may label them as John Doe No. 1, John Doe No. 2, and so on, and the court has procedures
by which he may make discovery requests to identify those defendants.
I warn Kidd that this is the last time that I will consider the configuration of these four
lawsuits. Kidd should make his final decision about whether he wishes any of his four lawsuits
to be separate. Any cases that are joined together will result in only one filing fee being assessed,
with his other payments being applied toward his open cases. Kidd will still owe a separate
filing fee for any lawsuit he wishes to maintain as a separate case.
If Kidd fails to submit a brand-new complaint by the deadline set below, each case will
proceed separately, and I will dismiss the ’313 case for Kidd’s failure to submit a complaint
that complies with the Federal Rules of Civil Procedure and assess him a “strike” under
§ 1915(g).
E. Suggestion of death
The state has filed a suggestion of death under Federal Rule of Civil Procedure 25
regarding Matthew Huelsman, a defendant in the ’597 case. Defendants have also filed a
motion for leave to file an amended answer, along with a red-lined version of the proposed
amended answer showing the proposed changes, mainly adding a new defense that Kidd did

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not properly serve Huelsman. They state that Kidd refuses to waive claims against Huelsman’s
successors in exchange for the state defending and indemnifying him.
I will grant defendants’ motion for leave to amend the answer, but they are under no
obligation to immediately submit their new pleading. They are free to wait for Kidd to respond
to this order first about the configuration of his four cases.
If it was defendants’ intention to start the 90-day window for Kidd to seek substitution
of Huelsman, they have not yet done so. As set forth in Atkins v. City of Chicago, 547 F.3d 869,
870–74 (7th Cir. 2008), Rule 25 requires the party filing the suggestion of death to both
identify the proper party to be substituted and serve that individual with the notice. Until
proper service is effectuated, the 90-day deadline is not triggered. Id. at 874 (“[N]othing will
suffice to start the 90-day clock running except service on whoever is identified as the
decedent’s representative or successor.”). Given that Kidd is on the process of amending his
complaint and has already sought to dismiss Huelsman, defendants are free to wait until Kidd
files his brand-new complaint before they take further action under Rule 25.

ORDER
IT IS ORDERED that:
1. Plaintiff Robert Pierre Kidd’s motions to voluntarily dismiss case no. 17-cv-712-jdp,
Dkt. 14; Dkt. 16; Dkt. 34; Dkt. 48 in the ’712 case, are GRANTED. This case is
DISMISSED without prejudice, and plaintiff will not owe the $350 filing fee for
the case.
2. Plaintiff’s motions regarding confiscation of funds from his veteran’s pension,
Dkt. 66; Dkt. 67; Dkt. 72 in case no. 17-cv-265-jdp, are DENIED.
3. Plaintiff’s motions for modification of his monthly filing-fee payments, Dkt. 72 in
the ’265 case; Dkt. 87 in case no. 17-cv-597-jdp; Dkt. 48 in the ’712 case, are
DENIED.

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4. Plaintiff’s motion to amend the caption, Dkt. 88 in the ’597 case, is DENIED.
5. Plaintiff may have until October 5, 2018, to submit a brand-new complaint joining
any claims about his seizures that he wishes to be litigated together in one lawsuit.
6. Defendants’ motion for leave to file an amended answer, Dkt. 85 in the ’597 case,
is GRANTED.
Entered September 14, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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