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Robbins v. Foster

United States District Court, E.D. Wisconsin

August 5, 2016

SHANE T. ROBBINS, Plaintiff,
v.
WARDEN BRIAN FOSTER, ANN SCARPITA, JOHN SCHETTLE, NANCY GARCIA, NICOLE KAMPHUIS, PAUL LUDVIGSON, TONIA MOON, SHANE M. WALLER, and DONNA LARSON, Defendants.

          SCREENING ORDER

          LYNN ADELMAN, United States District Judge.

         The plaintiff, Shane T. Robbins, who is incarcerated at Waupun Correctional Institution (WCI), is representing himself. He filed a complaint alleging that the defendants violated his constitutional rights. This matter comes before the court on plaintiff’s petition to proceed without prepayment of the filing fee (in forma pauperis). He has been assessed and paid an initial partial filing fee of $24.94. See 28 U.S.C. § 1915(b)(1).

         The court shall screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in by Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Complaint Allegations

         Plaintiff alleges that in about June 2015, the dentist at WCI, Dr. Schettle, told plaintiff he had to remove gum tissue that was too high over plaintiff’s lower teeth. Dr. Schettle then “open my mouth and began to grind away at my gums without any Novocain.” (Dkt. No. 1-1 at 1.) Dr. Schettle’s assistant asked, “What are you doing? He hasn’t been numbed.” Id. Dr. Schettle responded that plaintiff would be “fine, ” and continued. Id. The procedure caused plaintiff great pain.

         In unrelated allegations, plaintiff alleges that defendant Nurse Nancy Garcia failed to properly treat him for his serious testicle pain. She only orders higher doses of medication, which does not give plaintiff relief. In addition, plaintiff was not given a private cell so that he could apply warm compresses to the area, which did help. Plaintiff alleges that the members of the WCI’s Special Needs Committee, consisting of defendants Ann Scarpita, Nicole Kamphuis, Paul Ludvigson, Tonia Moon, Shane Waller, and Donna Laron, are responsible for not giving plaintiff a private cell so that he could treat his testicle pain.

         In what appears to be a related claim, plaintiff alleges that he has a bad back and requires a lower bunk bed. Defendants will not give him a lower bunk bed restriction. He has trouble getting into and out of the upper bunk, and he has fallen several times.

         Plaintiff seeks injunctive relief and monetary damages.

         Discussion

         Based on the court’s reading of the complaint, it appears that plaintiff is attempting to improperly bring unrelated claims in a single case. Under the controlling principle of Federal Rule of Civil Procedure 18(a), “[u]nrelated claims against different defendants belong in different suits” so as 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). “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternate claims, as many claims as it has against an opposing party.” Fed.R.Civ.P. 18(a). Under this rule, “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. Moreover, joinder of multiple defendants into one action is proper only if “any right to relief is asserted against them ...


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