DeSouto v. Cooke

• Decision Date: 20 November 1990
• Docket Number: No. 89-C-1356.,89-C-1356.
• Citation: 751 F. Supp. 794
• Parties: Joseph DeSOUTO, Plaintiff, v. Marianne COOKE, James Nagle, Steve Beck, Ben Barber, and Steve Hafermann, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

751 F. Supp. 794

Joseph DeSOUTO, Plaintiff, v. Marianne COOKE, James Nagle, Steve Beck, Ben Barber, and Steve Hafermann, Defendants.

No. 89-C-1356.

United States District Court, E.D. Wisconsin.

November 20, 1990.

Joseph DeSouto, Fox Lake, Wis., pro se.

Donald J. Hanaway, Atty. Gen., by JoAnne Kloppenburg, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

On October 30, 1989, Joseph DeSouto, currently incarcerated at Fox Lake Correctional Institution, filed this pro se action seeking redress under 42 U.S.C. § 1983. The court granted Mr. DeSouto's request to proceed in forma pauperis, DeSouto v. Cooke, 726 F.Supp. 244 (E.D.Wis.1989), and the defendants responded with a motion to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. The court referred the matter to Magistrate Aaron Goodstein for recommendation, under 28 U.S.C. § 636(b)(1)(A). Magistrate Goodstein recommended that the defendants' motion be granted and that the plaintiff's action be dismissed. However, the court returned the matter to Magistrate Goodstein for re-examination in light of the Supreme Court's decision in Zinermon v. Burch, ___ U.S. ___, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Magistrate Goodstein later issued a supplemental recommendation that his original recommendation stand.

Mr. DeSouto timely filed an "objection" to the magistrate's supplemental recommendation, see 28 U.S.C. § 636(b)(1)(C). Mr. DeSouto's "objection," however, included no legal support for his position and amounted to little more than a generalized contention that he was unable to understand the magistrate's recommendation. The defendants did not respond to Mr. DeSouto's objection. The court does not share Mr. DeSouto's difficulty in comprehending Magistrate Goodstein's reasoning; however, after an assessment of the applicable law the court concludes that it would be premature to terminate this action before discovery. This compels the court to deny the defendants' Rule 12(b)(6) motion to dismiss.

As is the substantive law that the court will be called upon to apply, the precise nature of the motion now before the court is hazy. Since he filed his complaint, Mr. DeSouto has "filed" numerous letters that, among other things, make additional factual assertions relating to the events underlying his claim. None of these letters resembles a response to the defendants' original Rule 12(b)(6) motion, notwithstanding the fact that pro se pleadings are to be liberally construed. Nevertheless, the court simply is unable to deem any of these letters a responsive pleading warranting consideration as such. Furthermore, it is unclear whether these letters were served upon the defendants; none have been accompanied by the requisite certificate of service. Thus, these letters are not "pleadings;" they are "matters" outside the pleadings.

Rule 12(b) provides the following direction for the court in cases such as this where additional "matters" are presented on a Rule 12(b)(6) motion to dismiss:

if ... matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 12(b), Federal Rules of Civil Procedure (emphasis added). In accordance with Rule 12(b), for purposes of ruling on the defendants' Rule 12(b)(6) motion, the court will exclude from its consideration Mr. DeSouto's letters rather than treating this motion as one for summary judgment. The motion will be disposed of as it was intended by the movants and as it has been (twice) by the magistrate (although it appears that the magistrate did not expressly exclude Mr. DeSouto's letters from his consideration) —as a Rule 12(b)(6) motion. While the court recognizes that Mr. DeSouto's letters do provide additional, perhaps relevant, facts, only the factual allegations contained in his complaint will be considered.

The complaint, which consists of two claims, names the following Kettle Moraine Correctional Institution (Kettle Moraine) officials and employees as defendants: Marianne A. Cooke, superintendent; James Nagle, security director; Ben Barber, administrative captain; Steve Hafermann, lieutenant; Paul Hewson, sergeant; John Voss, sergeant; Robert Jones, captain; and Michael Gannon, officer. The second claim merely requests leave to proceed in forma pauperis—a request that has already been granted, see 726 F.Supp. at 245.

The first claim comprises the factual allegations that the court is called upon to assess on the defendants' Rule 12(b)(6) motion. That is a claim for relief under 42 U.S.C. § 1983 for a constitutional harm that Mr. DeSouto alleges to have suffered while he was incarcerated at Kettle Moraine. The statement of claim states in full:

Specifically, Mr. James Nagle, Capt. Steve Beck and Lt. Steve Hafermann have committed larceny purloining legal and personal documentation under false pretexts. Taken: diary log (8/87-8/89) consisting of one (1) large envelope (approx. 75 pages) and one (1) manila folder (approx. 18 pages). Letters (copies) to DOC Department of Corrections personnel Bablitch and Sullivan, to Senator Gary George (copy to Archbishop Weakland, Milwaukee) and other legal materials that at this time, through careful investigation, will be ascertained as best as I can recollect. Captain Barber's contention is that the legal materials which include the diary information was returned to me. That is false. There is, contained, information that is "damaging" to the DOC. At no time did I divulge the contents of my files—and only two staff individuals (as of 6/89) knew that I was maintaining a diary log. I intended to use the material in legal pursuits, two (2) manuscripts and in a self-help emphasis.

In addition, Mr. DeSouto alleges that he filed an inmate complaint on September 3, 1989, and that an inmate complaint investigator received the complaint and numbered it KM # 712-89; he further alleges that Security Director Nagle and Captain Barber later "nullified" his inmate complaint (although exactly what that means is unclear).

For purposes of ruling upon the defendants' motion to dismiss for failure to state a claim upon which relief can be granted, the court must determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980). Furthermore, the court is mindful of its obligation to ensure that the claims of Mr. DeSouto, a pro se litigant, are given "fair and meaningful consideration." Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982) ("trial court has special obligations with respect to a pro se litigant"), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 451 (1983). The reality is that the factual allegations in Mr. DeSouto's complaint are disjointed and unclear (and probably incomplete as well, given that Mr. DeSouto has seen the need to supplement those allegations with others contained in his subsequent letters to the court).

The nature of the form civil rights complaint that pro se civil rights claimants are constrained (by Local Rule 12) to use may be to blame in part. Doubtlessly well-intentioned, the form (emphasis and capitalization in original) directs those persons as follows:

State as briefly as possible the essential facts of your case. Tell what each defendant did to you that caused you to file this suit against them.... State only the facts. Do not give any legal theories or arguments, do not cite any cases or statutes. Do not feel you have to use all the space. USE NO MORE THAN THE SPACE PROVIDED. THE COURT STRONGLY DISAPPROVES OF STATING CLAIMS OUTSIDE THE SPACE PROVIDED.

It seems that more often than not, this instruction is taken by the pro se prisoner as an invitation to assert a sketchy claim that, whether legitimate or not, is unlikely to withstand a defendant's predictable motion to dismiss. The warning that "the court" somehow "strongly disapproves" of those who overrun the space provided—and how that disapproval may be manifested is unclear—may result in additional "filings," as in this case, that make the court's task of evaluating the merits of a prisoner's contentions even more difficult.

Furthermore, although the instruction that pro se prisoners provide facts and not legal theories and arguments is well-intended, it is probable that this contributes to the apparent frivolousness of pro se complaints. The form should simply encourage the pro se litigant to set forth in a cogent manner all of the essential facts—the who, where, what, when, why, and how—that the pro se litigant reasonably believes to have some relevance under the applicable law. Cf. Neal v. Miller, 542 F.Supp. 79, 81 (S.D.Ill.1982). Founded upon an unawareness of the applicable law, as undoubtedly many pro se complaints are, and constrained by instructions unique to the pro se litigant, even a legitimate claim may be fodder for a motion to dismiss.

It is in this context that the court now addresses the sufficiency of Mr. DeSouto's complaint—the legitimacy of his § 1983 claim. The core of that claim, in which all factual allegations are accepted to be true, simply alleges that certain of the defendants, members of the staff at Kettle Moraine, "committed larceny by purloining legal and personal documentation under false pretexts." Other statements in the complaint suggest that the contents of Mr. DeSouto's "purloined documentation" was of special interest to the defendants, security officers and officials at Kettle Moraine, as it was "damaging" to the Department of Corrections. The complaint also suggests that the persons responsible for the "larceny" acted under the direction of supervisory officials at Kettle...