Birkley v. Wisconsin

1

SYRIS T. BIRKLEY, Plaintiff, v. STATE OF WISCONSIN and JOHN/JANE DOES, Defendants.

No. 22-cv-1313-pp

United States District Court, E.D. Wisconsin

June 9, 2023

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A AND GIVING THE PLAINTIFF A DEADLINE BY WHICH TO FILE AN AMENDED COMPLAINT

HON PAMELA PEPPER, Chief United States District Judge.

Syris T. Birkley, who was incarcerated at the Milwaukee County Jail at the time of the relevant events and who is representing himself, filed a complaint under 42 U.S.C. §1983 alleging that the defendants violated his constitutional rights. This decision resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no 2, and screens his complaint, dkt. no. 1.

I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1).

He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

On December 14, 2022, the court ordered that the plaintiff was not required to pay an initial partial filing fee. Dkt. No. 7. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the filing fee over time in the manner explained at the end of this order.

II. Screening the Complaint

A. Federal Screening Standard

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

In determining whether the complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by plaintiffs who are representing themselves and holds such complaints to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).

B. The Plaintiff's Allegations

The plaintiff has sued the State of Wisconsin and John/Jane Does. Dkt. No. 1 at 1. At the time he filed the complaint (November 4, 2022), he alleged that he had been confined at the Milwaukee County Jail since December 18, 2018. Id. at 2. The plaintiff asserts that a police officer arrested him on that date for allegedly committing armed robbery at a Target store. Id. at 2-3. He identifies a case number-2018CF005627. Id. The plaintiff says that he did not do it and that police officers framed him, kidnapped him and falsely imprisoned him. Id. at 3.

The plaintiff alleges that at the jail, he was subjected to “corporal punishment, cruel [and] unusual punishment, negligence, misconduct, deliberate indifferen[ce], assault and battery, etc.”^[1] Id. He states that he had been choked while in restraints, tased, sprayed with mace, placed in “4D seg” for seven to nine months at a time, forced to sleep on a brick for eleven hours without a mattress and placed on suicide watch with no clothes and no shoes for days. Id. at 4. The plaintiff also alleges that staff told him if he did not eat food that violated his religious diet, he would stay on suicide watch. Id. He says that when he protested “not to eat/get a COVID shot,” staff placed him on Unit 6A for months which they ran like “4D seg” and where they did not allow him out of his cell for one hour a day. Id. The plaintiff alleges that, while on Unit 6A, he could not get canteen, hygiene items and legal materials. Id. He states that staff gave a white man a “pre-sealed kosher meal diet” but that he could not get one because he is Black and that they gave him a vegan veggie diet. Id. The plaintiff also alleges that jail staff refused him recreation/gym for months. Id.

The plaintiff alleges that if the Milwaukee Police Department had not lied in their police report, and if the judges had “acted in a judicial capasity [sic], A.D.A. as will [sic],” he wouldn't have been in jail and would not have been subjected to the “severe punishment and torment” at the jail from December 18, 2018 to February 7, 2022. Id. at 5. The plaintiff states that on February 7, 2022, his criminal case was dismissed.^[2] Id.

For relief, the plaintiff seeks $7.7 million. Id. at 6. He also wants to change the conditions in the jail so that rooms are open every day, the gym is open every day, proper Kosher diet pre-sealed package meals are given to all Jews and correctional officers receive mental assessments/training on how to conduct themselves and not knowingly break the law. Id.

C. Analysis

While it is appropriate for a plaintiff to file several claims against the same defendant, a plaintiff cannot bring unrelated claims against different defendants in the same case. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Fed.R.Civ.P. 18(a) and 20(a)(2). A plaintiff may join multiple defendants in a single case only if the plaintiff asserts at least one claim against each defendant that arises out of the same events or incidents and involves questions of law or fact that are common to all the defendants. Fed.R.Civ.P. 20(a)(2); George, 507 F.3d at 607; Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012) (joinder of multiple defendants in one case “is limited to claims arising from the same transaction or series of related transactions”).

The plaintiff's complaint violates Rules 18 and 20 because it attempts to bring unrelated claims against multiple defendants (whom he sues as John/Jane Does). Any claims arising from the circumstances surrounding the plaintiff's arrest must be brought in a separate case from claims arising from his confinement at the jail. The same is true for any claims of malicious prosecution or judicial misconduct relating to the plaintiff's prosecution-those must be brought in a separate case from the claims about the conditions of his confinement at the jail. The plaintiff also raises several different claims about his time at the jail that also must be brought in separate cases. It appears that the plaintiff attempts to raise (1) an excessive force claim based on allegations that he was tazed and sprayed with mace while in restraints, (2) a conditions of confinement claim based on the conditions he describes for his time in “4D seg,” (3) a separate conditions of confinement claim based on allegations regarding his time on Unit 6A, (4) a First Amendment free exercise of religion claim based on allegations that staff forced him to eat meals that violated his religious diet and (5) an equal protection claim based on allegations that staff would not give him his religious meal because he is Black.

When a plaintiff has improperly joined unrelated claims against unrelated defendants, the court must reject the complaint “either by severing the action into separate lawsuits or by dismissing the improperly joined defendants.” Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011) (citing Fed.R.Civ.P. 21). Rather than this court deciding which claims to sever (remove from the case) or which defendants to dismiss, the court will give the plaintiff an opportunity to choose which of the above-described unrelated claims he wants to pursue in this case, and which he wants to bring in separate cases. The court will give the plaintiff a deadline by which to file an amended complaint that focuses on the related claim of his choice. If he wishes to pursue the other claims, he may file separate complaints regarding those claims.

If the plaintiff chooses to pursue claims of false arrest, he may wish to be aware that to prevail on a false arrest claim under §1983, he must show that there was no probable cause for the arrest. See, e.g., Braun v. Vill of Palatine, 56 F.4th 542, 548 (7th Cir. 2022); Neita v. City of Chi., 830 F.3d 494, 497 (7th Cir. 2016). If the plaintiff chooses to pursue claims of...