Pabon Gonzalez, Helson et al v. Matti et al

Filing 10

ORDER Dismissing 1 Complaint pursuant to Fed. R. Civ. P. 8. Amended complaint due 9/5/2018. Plaintiff's 7 Motion for assistance recruiting counsel is denied. Signed by District Judge James D. Peterson on 8/16/2018. (elc),(ps)

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

HELSON PABON GONZALEZ,
Plaintiff,
v.

OPINION & ORDER

SGT. MATTI, LT. TOM,
and UNIT MANAGER B. KOOL,

17-cv-761-jdp

Defendants.
Plaintiff Helson Pabon Gonzalez, appearing pro se, is a prisoner at the Wisconsin
Secure Program Facility. In this case, one of a series of lawsuits he has recently filed, he alleges
that a prison official yelled at him for complaining about the lack of restrooms on the recreation
grounds, and later retaliated against him. Pabon Gonzalez has made an initial partial payment
of the filing fee as previously directed by the court.
The next step is for me to screen Pabon Gonzalez’s complaint and dismiss any portion
that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or
asks for monetary damages from a defendant who by law cannot be sued for money damages.
28 U.S.C. §§ 1915 and 1915A. In doing so, I must read Pabon Gonzalez’s pro se complaint
generously. See Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam). I conclude that Pabon
Gonzalez’s allegations violate Federal Rule of Civil Procedure 8, so I will dismiss his complaint
and give him a chance to file an amended complaint that better explains his claims.

ALLEGATIONS OF FACT
There are no restrooms in the recreation areas at WSPF. If an inmate needs to use the
restroom, he has to leave the recreation area and then is not allowed back in. Pabon Gonzalez

spoke with defendant Lieutenant Tom about this on May 14, 2017; Pabon Gonzalez wanted
staff to put a restroom in the recreation grounds. Defendant Sergeant Matti listened to the
conversation and then ended it by screaming at Pabon Gonzalez to go to recreation. Pabon
Gonzalez says that Matti used abusive language, although he does not explain exactly what
Matti said. Pabon Gonzalez lobbied Tom, Matti’s superior, to reprimand Matti for his
behavior. But Tom did nothing. Matti continued to yell at Pabon Gonzalez, telling him to go
to his room. Tom later explained to Matti that a restroom in recreation would be too expensive
and would raise security concerns.
Pabon Gonzalez later filed several inmate grievances against Matti for various actions
that Pabon Gonzalez thought were abusive or violated prison rules, including interfering with
his law library schedule, giving him a false conduct report, and denying him a prison loan.

ANALYSIS
The main thrust of Pabon Gonzalez’s complaint is the incident in which defendant
Matti yelled at him in response to his bringing up the issue of the lack of restrooms in the
recreation area. But verbal harassment generally does not constitute cruel and unusual
punishment that could support an Eighth Amendment claim. DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000). Pabon Gonzalez also seems to say that the lack of restroom access is
evidence of racial discrimination, but he does not explain why he believes that is the case. So
he may not proceed on a claim under the Equal Protection Clause.
At the end of his allegations, Pabon Gonzalez lists various inmate grievances he filed
against Matti, and I take him to be saying that Matti retaliated against him by engaging in
various misconduct. But he does not explain these other incidents in any detail, nor does he

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explain what they have to do with the May 14, 2017 incident in which Matti yelled at him.
To state a claim for retaliation under the First Amendment, a plaintiff must establish three
elements: (1) he engaged in a constitutionally protected activity; (2) the defendant took a
retaliatory action that would deter a person of “ordinary firmness” from engaging in the
protected activity; and (3) sufficient facts make it plausible that the protected activity was a
motivating factor for the retaliation. Bridges v. Gilbert, 557 F.3d 541, 556 (7th Cir. 2009).
Without knowing more about the incidents in question and their connection to the May 14,
2017 incident, he does not state a retaliation claim against Matti.
Pabon Gonzalez also does not explain what defendants Tom and Kool did to violate his
rights. He seems to suggest that Tom is responsible for Matti’s actions because he is his
supervisor. But as discussed above, Pabon Gonzalez does not currently state any claims against
Matti, so Tom hasn’t violated the Constitution either by overlooking Matti’s actions.
Because Pabon Gonzalez’s vague allegations do not state any claim for relief, I will
dismiss his complaint under Federal Rule of Civil Procedure 8. Rule 8(a)(2) requires a
complaint to include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Under Rule 8(d), “each allegation must be simple, concise, and direct.” The
primary purpose of these rules is fair notice. A complaint should be written so that the court
and the opposing party can understand what the plaintiff is alleging. Vicom, Inc. v. Harbridge
Merchant Serv’s, Inc., 20 F.3d 771, 775 (7th Cir. 1994).
But I will give Pabon Gonzalez an opportunity to amend his complaint. He should draft
his amended complaint as if he were telling a story to people who know nothing about his
situation. He should simply state (1) what acts he believes violated his rights; (2) what rights
were violated; (3) who committed those acts; and (4) what relief he wants the court to provide.

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If he is trying to say that Matti retaliated against him in some way, he will need to explain how
he knows that Matti’s later retaliatory actions were done in connection with an earlier event.
If Pabon Gonzalez fails to submit an amended complaint by the deadline set below, I
will dismiss the complaint for failure to state a claim upon which relief may be granted and I
will assess a “strike” in accordance with 28 U.S.C. § 1915(g).
Pabon Gonzalez has filed a motion for the court’s assistance in recruiting him counsel;
he filed identical requests in this case and in case no. 16-cv-852. I already denied his motion
in the ’852 case, see Dkt. 38 in that case, and I will deny it here for the same reason: he does
not develop an argument in support of his motion explaining why this case is too complex for
him to handle. He should not need help in amending his complaint to better explain how
defendants violated his rights.

ORDER
IT IS ORDERED that:
1. Plaintiff Helson Pabon Gonzalez’s complaint is DISMISSED under Federal Rule of
Civil Rule of Procedure 8.
2. Plaintiff may have until September 5, 2018, to submit an amended complaint that
complies with Rule 8.
3. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 7, is
DENIED.
Entered August 16, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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