United States District Court, E.D. Wisconsin
JAMES A. PENHALLEGON, SR., Plaintiff,
SGT. NETT, SGT. CREW CUT, and SIR FINNIE, Defendants.
AND ORDER GRANTING THE PLAINTIFF’S REQUEST TO CORRECT
THE SPELLING OF DEFENDANT NETT’S NAME, DENYING THE
PLAINTIFF’S REQUEST TO REINSTATE KRUEGER AND DAVIS AS
DEFENDANTS, DENYING THE PLAINTIFF’S REQUEST TO ADD
CLAIMS (DKT. NO. 7), AND SETTING A DEADLINE OF JULY 15, 2016
FOR THE PLAINTIFF TO FILE AN AMENDED COMPLAINT IF HE CHOOSES
TO DO SO
PAMELA PEPPER United States District Judge.
plaintiff, a prisoner at Stanley Correctional Institution, is
representing himself. On May 17, 2016, the court allowed the
plaintiff to proceed on claims against Sgt. Nett (originally
spelled incorrectly as Net), Sgt. Crew Cut, and Sir Finnie;
however, it dismissed claims against Ann Krueger and Grey
Davis because the plaintiff failed to state claims against
them. Dkt. No. 6.
31, 2016, the plaintiff filed a letter addressed to the clerk
of court, notifying the clerk of his change of address and
making several requests. Dkt. No. 7. First, the plaintiff asks
that the court correct the spelling of defendant
"Net’s" name, to "Nett." Dkt. No. 7
at 1. The court will grant this request.
the plaintiff asks the court to reconsider its decision to
dismiss Krueger and Davis. Id. at 2-4. In support of
this request, the plaintiff provides additional information
that he did not put into his complaint. The court reminds the
plaintiff that the court may consider only the facts alleged
in his complaint when determining whether he states a claim
against a given defendant. The plaintiff may not supplement
his complaint with facts alleged in subsequent filings. As
indicated in the court’s screening order, nowhere in
the complaint does the plaintiff allege that he or anyone
else informed Krueger or Davis about the threat the
plaintiff’s cellmate posed or about the
plaintiff’s requests to be moved. These defendants
cannot be held liable for an alleged constitutional
deprivation that they knew nothing about. The court declines
to reconsider its decision to dismiss Krueger and Davis.
said, if the plaintiff thinks he can allege facts that
indicate that Krueger and Davis knew about the alleged threat
to the plaintiff, he may file an amended complaint subject to
the requirements of Fed.R.Civ.P. 15 and Civ. L. R. 15 (E.D.
Wis.). The court advises the plaintiff that legal conclusions
will not be sufficient to state a claim; he must include
facts (i.e., the who, what, where, and when) to support those
conclusions. If he chooses to file an amended complaint, it
must bear the docket number assigned to this case and must be
labeled "Amended Complaint." The amended complaint
replaces the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the
appellate court emphasized that in such instances, the
"prior pleading is in effect withdrawn as to all matters
not restated in the amended pleading[.]" Id. at
1057 (citation omitted). The court will screen any amended
complaint that the plaintiff files. See 28 U.S.C.
plaintiff decides to file an amended complaint, the court
also cautions him that the additional information he provided
in his letter may not be sufficient to support claims against
Krueger and Davis. Failure to follow Department of
Corrections and prison procedures or policies is not, by
itself, a constitutional violation or a violation of federal
law. Unless the alleged defendant’s failure to follow
rules, procedures or policies resulted in the
plaintiff’s being deprived of a constitutional right,
the failure to follow procedures does not state a federal
claim. Further, §1983 does not provide a cause of action
against individual supervisors based on their supervisory
role over another person. Odogba v. Wis. Dept. of
Justice, 22 F.Supp. 3d 895, 909 (E.D. Wis. 2014). Unless
the supervisor was, him- or herself, directly involved in
depriving the plaintiff of his constitutional rights, the
plaintiff cannot sue that supervisor under §1983.
Id. (citing, inter alia, McKinnon v.
City of Berwyn, 750 F.2d 1383, 1390 (7th Cir. 1984).
the plaintiff asks to add a new claim to his complaint. In
its May 17, 2016 order, the court allowed the plaintiff to
proceed on claims that defendants Nett, "Crew Cut,
" and "Sir Finnie" failed to protect him from
assault by another inmate, and were deliberately indifferent
to the danger the other inmate posed to him. Dkt. No. 6. In
his recent letter, the plaintiff indicates that he wants to
add a claim that two new defendants-Captain Chapman and
Warden Kennth R. Morgan-made him sleep on a mattress on the
floor in the segregation unit at Racine Correctional, despite
the fact that he had a lower bunk restriction. Dkt. No. 7 at
as explained above, the proper way for a plaintiff to add
things to his complaint is for him to file an amended
complaint that includes all of the claims he wishes to bring.
Second, the plaintiff should be aware that Fed.R.Civ.P. 18(a)
states that "[u]nrelated claims against different
defendants belong in different suits, " to prevent
prisoners from dodging the fee payment or three strikes
provisions in the Prison Litigation Reform Act. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007). This means
that "multiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2." George,
507 F.3d at 607. Joining multiple defendants into one action
is proper only if "any right to relief is asserted
against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and any
question of law or fact common to all defendants will arise
in the action." Fed.R.Civ.P. 20(a)(2).
plaintiff indicates, in his letter, that he is willing to
include his claim against Chapman and Morgan in this case,
"to help alleviate cases with the Court." Dkt. No.
7 at 4. The court appreciates that the plaintiff is trying to
reduce the number of cases he files, but as the discussion
above indicates, the law requires that a plaintiff must file
a separate complaint if the claims and defendants are not
related to each other. In this case, before amending his
complaint and adding his claims against Chapman and Morgan,
the plaintiff should carefully consider whether those
allegations against Chapman and Morgan are related to his
failure to protect/deliberate indifference claims against
Nett, "Crew Cut, " and "Sir Finnie." If
not, he may not pursue those claims in the same lawsuit, and
must file those claims in a separate case.
court GRANTS the plaintiff’s request to correct the
spelling of defendant Nett’s name (Dkt. No. 7). The
clerk’s office shall update the caption of the case to
reflect the correct spelling of defendant Nett’s name.
court DENIES the plaintiff’s request to reinstate Ann
Krueger and Grey Davis as defendants. (Dkt. No. 7).
court DENIES the plaintiff’s request to add a claim to
his complaint. (Dkt. No. 7).
court ORDERS that if the plaintiff wishes to file an amended
complaint, he must do so in time for the court to ...