United States District Court, E.D. Wisconsin
AKINBO J.S. HASHIM, also known as John D. Tiggs, Jr., Plaintiff,
GARY HAMBLIN, et al., Defendants.
DECISION AND ORDER
LYNN ADELMAN District Judge
This matter is before the court to screen plaintiff’s amended complaint. See 28 U.S.C. § 1915A. I will also address in this order several motions plaintiff has filed.
By way of background, on October 9, 2015, I screened the original complaint and determined that plaintiff could proceed on the following claims from Counts I-III of the original pleading: (1) a retaliation claim against defendant Preberg; (2) Eighth Amendment claims against the corrections officers who denied plaintiff food and medicine when he refused to kneel in violation of his medical restriction (i.e., defendants Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrom, Cummings, Hilbert, Preberg, Comeau, and Steudl); and (3) Eighth Amendment claims against defendants Longsine and Schultz for forcing plaintiff to eat food such as mashed potatoes and soup without eating utensils. (Dkt. No. 36 at 11.) I dismissed all other claims in Counts I-III for failure to state a claim upon which relief could be granted. (Id.) Next, I dismissed without prejudice for improper joinder all claims that plaintiff asserted in Counts IV and V of the complaint. I determined that while some of the claims within Count V might relate to each other, they were not related to the claims in Counts I-III or to the claims in Count IV, and they purported to join as defendants parties who were not defendants to the other counts.
In his amended complaint, plaintiff names thirty-nine defendants and, for the most part, attempts to reinstate the claims I dismissed for improper joinder. The amended complaint contains four sections. In the first section (Dkt. No. 37 ¶¶ 37-65), plaintiff reiterates his retaliation claim against defendant Preberg. Plaintiff alleges that in March 2010, Preberg wrote a false conduct report against him in retaliation for initiating an administrative grievance. As I explained in my prior order, plaintiff may proceed on this claim.
In the second section of the amended complaint (Dkt. No. 37 ¶¶ 66-90), plaintiff reiterates his allegations that defendant Ericksen imposed security precautions against him after learning about the conduct report authored by Preberg. The security precautions were in effect from March 18, 2010, through June 26, 2010, and plaintiff alleges that they were applied unconstitutionally. The security precautions required, among other things, that plaintiff retreat to the rear of his cell, enter into the shower stall, and kneel on the concrete floor, before staff would give him meals or medication. This kneeling precaution was in place despite a doctor’s order that plaintiff not kneel due to his knees. Plaintiff alleges that defendants Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, and Segerstrom denied him approximately 100-140 breakfast and lunch meals because he could not kneel. He alleges that defendant Ericksen was aware of the no-keeling medical restriction and the meal deprivations, but chose to take no corrective action. Plaintiff also alleges that defendants Cummings, Hilbert, Preberg, Comeau, and Segerstrom denied him evening meals for about twenty-one days because he could not kneel. According to plaintiff, he lost fourteen to twenty-four pounds as the result of missing the meals. In addition to missing meals, plaintiff alleges that defendants Preberg, Longsine, Hilbert, Cummings, Dillenberg, DeBroux, VanLoo, Keiler, Comeau, Giffin, Mommaerts, and Segerstrom did not give him his prescribed hypertension medication as a result of his inability to follow the security precautions. Plaintiff’s allegations that defendants implemented security precautions in such a way as to deprive him of meals and prescribed medication states a claim. His allegation that Ericksen was aware of the meal deprivations and took no corrective action also states a claim.
In the third section of the complaint (Dkt. No. 37 ¶¶ 91-139), plaintiff alleges that he was subjected to retaliation for acting as a jailhouse lawyer. These allegations are not related to the claims on which I have allowed the plaintiff to proceed, and they purport to join as defendants parties who are not defendants to the other claims. As explained in my order screening the original complaint, plaintiff may not proceed on those claims in this case. (Dkt. No. 36 at 3-4.) Plaintiff also alleges in this section that defendants Longsine and Schultz, in the course of implementing the security precautions, deprived him of meal trays and utensils. (Dkt. No. 37 ¶¶ 121-123.) This claim was included in the original complaint as is one of the claims I allowed to proceed, and for the reasons stated in my prior order, he may continue to proceed on this claim. (Dkt. No. 36 at 11.)
In the fourth section of the complaint (Dkt. No. ¶¶ 140-185), plaintiff alleges that he was subjected to retaliation for helping other prisoners file grievances with the Inmate Complaint Review System. According to plaintiff, prison staff issued him conduct reports based on false disciplinary charges, unreasonably searched him and his cell, and confiscated his property. He also alleges that officers used excessive force against him causing injury. These new allegations are not related to the claims upon which plaintiff was allowed to proceed in this case and they purport to join as defendants parties who are not defendants to the claims upon which he is proceeding. So again, these claims will be dismissed as improperly joined.
In his amended complaint, Hashim suggests that under the “current judicial culture, ” prisoners are wrongfully being denied the opportunity to sue multiple defendants and bring multiple claims in a single lawsuit. (Am. Compl. ¶¶ 34-35.) He suggests that courts are applying the Federal Rules of Civil Procedure relating to joinder of claims and parties, i.e., Rules 18 and 20, against prisoners more stringently than they do against non-prisoner litigants. However, in the present case, my having dismissed many claims and parties on the basis of misjoinder is based on a straightforward application of Rule 20(a)(2). That rule states that multiple parties may be joined as defendants only if (1) the claims against them arise out of the same transaction, occurrence, or series of transactions or occurrences, and (2) any question of law or fact common to all defendants will arise in the action. In the present case, the plaintiff’s various claims arise out of separate transactions, occurrences, or series of transactions of occurrences, and there is no question of law or fact that is common to all thirty-nine defendants. To illustrate, consider two of the plaintiff’s claims: (1) his claim against Corrections Officer Preberg for retaliating against the plaintiff for complaining about Preberg’s having confiscated the plaintiff’s eyeglasses, by writing a false conduct report against the plaintiff while he was incarcerated at Green Bay Correctional Institution in March 2010, and (2) his claim against David Olson, a private citizen who resides in Waukesha, Wisconsin, for conspiring with a lawyer employed by the Department of Corrections and stealing bank statements from the plaintiff’s Waukesha residence in March 2012, in furtherance of a conspiracy to retaliate against the plaintiff for serving as a jailhouse lawyer to other inmates. By no stretch of the imagination could these claims be thought to arise out of the same transaction, occurrence, or series of transactions or occurrences. Nor is there any common question of law or fact that will arise in adjudicating the claims against both defendants. Thus, Preberg and Olson cannot be joined as defendants in this suit. That would be the case even if the plaintiff were not a prisoner subject to the requirements of the Prison Litigation Reform Act. Under Rule 20(a), a non-prisoner would not be allowed to join a tort claim for negligence arising out of a car accident with defendant John Smith that occurred in March 2010 with a second tort claim for negligence arising out of a car accident with Mary Jones that occurred in March 2012. Similarly, the plaintiff is not allowed to join two unrelated civil-rights claims for retaliation against different defendants in a single suit.
In sum, the plaintiff can proceed on the following claims included in the amended complaint: (1) the retaliation claim against defendant Preberg; (2) the Eighth Amendment claims against the corrections officers who denied plaintiff food and medicine when he refused to kneel in violation of his medication restriction (i.e., Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrom, Cummings, Hilbert, Preberg, Comeau); (3) the Eighth Amendment claim against defendant Ericksen for failure to take corrective action when notified that plaintiff was being deprived of meals; and (4) the Eighth Amendment claims against defendants Longsine and Schultz for forcing plaintiff to eat foods such as mashed potatoes and soup without eating utensils. All defendants other than Longsine, Dillenberg, DeBroux, VanLoo, Keiler, Giffin, Mommaerts, Segerstrom, Cummings, Hilbert, Preberg, Comeau, Ericksen, and Schultz will be dismissed from this case.
Plaintiff’s Motion to Compel Discovery
On December 14, 2015, plaintiff filed a motion to compel discovery. (Dkt. No. 50.) He moves the court to compel defendants to respond to his November 9, 2015, first set of interrogatories and his November 12, 2015, first set of admissions. According to plaintiff, defendants advised him on November 12, 2015, that they would not respond to his discovery requests until after the court issued a Scheduling Order. Plaintiff counters that defendants should have timely responded to his discovery requests and that plaintiff’s Proposed Scheduling Order, filed October 26, 2015, explained that any practices which required leave of the court before seeking discovery were invalid.
In pro se prisoner civil rights litigation, the usual practice in this district is that the court issues a Scheduling Order setting deadlines for the completion of discovery and for filing dispositive motions after defendants file an answer to the complaint. See Girtler v. Wolf, No. 15-CV-841, 2015 WL 6110761, at *5 (E.D. Wis.). In this case, although defendants answered the original complaint on December 8, 2015, plaintiff had already filed an amended complaint by then. Now that the amended complaint has been screened, the court will await defendants’ answer to that pleading before issuing a Scheduling Order. The court will deny plaintiff’s November 17, 2015, application to use his Proposed Scheduling Order and instead will follow above-described usual practice in this case. Plaintiff should await the court’s Scheduling Order before engaging in discovery. See id. Based on the foregoing, I will deny plaintiff’s motion to compel.
Plaintiff’s Motion for Definitive Rulings on Pending Pleadings to Amend Complaint,
Proposed Scheduling Order, Prompt Screening Order of Amended Complaint,
Application to Proceed Before Magistrate Judge, and for an ...