George, Larry v. Tritt, Ruth ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1325
LARRY GEORGE,
Plaintiff-Appellant,
v.
JUDY SMITH, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-0403-C—Barbara B. Crabb, Chief Judge.
____________
SUBMITTED OCTOBER 17, 2007—DECIDED NOVEMBER 9, 2007
____________
Before EASTERBROOK, Chief Judge, and MANION and
KANNE, Circuit Judges.
EASTERBROOK, Chief Judge. Larry George, one of Wis-
consin’s prisoners, sued 24 persons who have had some
role in his confinement—guards, wardens, nurses, mem-
bers of the parole board, and more. His sprawling com-
plaint charges some defendants with failing to provide
adequate medical care, others with censoring his mail,
yet others with mishandling his applications for parole,
and so on. The district court dismissed some of his claims
on the pleadings, see 2005 U.S. Dist. LEXIS 16139 (W.D.
Wis. Aug. 2, 2005), and the rest on summary judgment, see
2007 U.S. Dist. LEXIS 2421 (W.D. Wis. Jan. 10, 2007), 2006
U.S. Dist. LEXIS 92290 (W.D. Wis. Dec. 12, 2006), and 467
F. Supp. 2d 906 (W.D. Wis. 2006).
2 No. 07-1325
The district court did not question George’s decision to
join 24 defendants, and approximately 50 distinct claims,
in a single suit. It should have done so. The controlling
principle appears in Fed. R. Civ. P. 18(a): “A party assert-
ing a claim to relief as an original claim, counterclaim,
cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims,
legal, equitable, or maritime, as the party has against an
opposing party.” Thus 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.
Unrelated claims against different defendants belong
in different suits, not only to prevent the sort of morass
that this 50-claim, 24-defendant suit produced but also
to ensure that prisoners pay the required filing fees—for
the Prison Litigation Reform Act limits to 3 the number
of frivolous suits or appeals that any prisoner may file
without prepayment of the required fees. 28 U.S.C.
§1915(g). George was trying not only to save money
but also to dodge that rule. He hoped that if even 1 of his
50 claims were deemed non-frivolous, he would receive
no “strikes” at all, as opposed to the 49 that would result
from making 49 frivolous claims in a batch of 50 suits. The
district judge likewise assumed that a single non-frivolous
claim in a blunderbuss complaint makes the suit as a
whole non-frivolous.
In allowing George to pursue this mishmash of a com-
plaint, the district court may have been influenced by
Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004). In 2002
the district court had ruled that multiple prisoners
cannot join as plaintiffs in a civil suit, notwithstanding
the first sentence of Fed. R. Civ. P. 20(a): “All persons
may join in one action as plaintiffs if they assert any
right to relief jointly, severally, or in the alternative in
respect of or arising out of the same transaction, occur-
rence, or series of transactions or occurrences and if any
No. 07-1325 3
question of law or fact common to all these persons
will arise in the action.” We held in Boriboune that the
PLRA does not supersede Rule 20, though it does require
each plaintiff to pay a separate filing fee and expose
each plaintiff to a “strike” if any claim in the consolidated
complaint is frivolous. After Boriboune the district court
has taken an anything-goes approach. But Boriboune does
not require this. It holds that the Rules of Civil Procedure
apply to suits by prisoners. See also, e.g., Pratt v. Hurley,
79 F.3d 601 (7th Cir. 1996) (a district court may not
limit prisoners to one civil case on file at a time).
This means that the second sentence of Rule 20(a)—“All
persons . . . may be joined in one action as defendants
if there is asserted against them jointly, severally, or in
the alternative, any right to relief in respect of or arising
out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or
fact common to all defendants will arise in the action”—is
as applicable as the first sentence. A buckshot complaint
that would be rejected if filed by a free person—say, a
suit complaining that A defrauded the plaintiff, B de-
famed him, C punched him, D failed to pay a debt, and E
infringed his copyright, all in different transactions—
should be rejected if filed by a prisoner. George did not
make any effort to show that the 24 defendants he named
had participated in the same transaction or series of
transactions or that a question of fact is “common to
all defendants”.
When a prisoner does file a multi-claim, multi-defendant
suit, the district court should evaluate each claim for
the purpose of §1915(g). Boriboune observed: “when any
claim in a complaint or appeal is ‘frivolous, malicious,
or fails to state a claim upon which relief may be granted’,
all plaintiffs incur strikes” (391 F.3d at 855; emphasis
added). George thus incurs two strikes in this litiga-
tion—one for filing a complaint containing a frivolous
4 No. 07-1325
claim, another for an appeal raising at least one frivolous
objection to the district court’s ruling. Here’s just one
example: George sued one of the defendants because he
saw some particles of food on his plate at dinner, inferred
that the dishwasher had malfunctioned, and asserted
that this episode placed his health at risk. This does not
come within shouting distance of a constitutional griev-
ance under the approach of Farmer v. Brennan, 511 U.S.
825 (1994), and similar decisions. George’s complaint
and appellate brief are full of equally weak claims.
George presents six issues on appeal, but most of these
have multiple sub-issues. For example, his first “issue” is:
“Was Plaintiff ’s books and magazines denied for a valid
reason?” George ordered lots of publications, and some of
them were turned away as pornographic or because they
contained gang-related signals. The district court articu-
lated the right rules for the evaluation of these claims
under the first amendment, took evidence (some of it in
secret to prevent prisoners from learning the prison’s
security criteria), and concluded that the prison’s rea-
sons for withholding the books and magazines are suffi-
cient under decisions such as Turner v. Safley, 482 U.S. 78(1987). The district judge’s reasons are spelled out in her
opinions and need not be rehearsed here.
Only a few of George’s arguments call for analysis. One
concerns an “atlas” that George ordered. The prison
refused to allow its entry, explaining that it might help
prisoners plan escapes. That’s a sound reason in theory,
but George retorts that the prison library itself contains
maps and atlases. A prison could not invoke security as
a reason to exclude publications that prisoners may
read in the library, and which they may copy out for use
in their cells. But maybe this “atlas” was more worrisome.
We have put the word in quotations because all we know
about the book is that George applies that label to it.
When the guards declined to allow George to receive the
No. 07-1325 5
volume, he directed them to send it elsewhere, and they
complied. George has not described the book in the com-
plaint, produced it in discovery, or provided a title or
ISBN that would allow the court to evaluate the prison’s
claims about its potential effect on security. Plaintiffs need
not plead facts, see Erickson v. Pardus, 127 S. Ct. 2197(2007), but they must give enough detail to illuminate the
nature of the claim and allow defendants to respond. See
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007).
George had a chance in his complaint, in later filings in
the district court at the summary-judgment stage, and
in his appellate brief; he did not take advantage of these
opportunities to describe the “atlas”, so we lack any reason
to disturb the district court’s resolution. See Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986).
The prison refused to allow George to have a newsletter
from the Jeff Dicks Medical Coalition, informing him that
it was a fund-raising proposal that prisoners are not
entitled to possess—not so much because any one pris-
oner is forbidden to make charitable contributions (if he
has more than he needs to pay his fines, restitution, and
filing fees under the PLRA) but because prisoners are
not entitled to solicit money from each other, as the
newsletter encourages recipients to do. Money-raising
activities in prison may reflect extortion or disguised
payments for contraband; the prison lacks means to ensure
that any money George collects “for charity” will find
its way to the charity. George says that this exclusion
violates the first amendment, but he does not cite (and
we could not find) any case holding that prisons must
allow the entry of literature that encourages prisoners
to raise money in violation of prisons’ internal controls
on the exchange of funds. The Supreme Court has told us
that prisons’ legitimate concerns about security and
administration deserve respect, even when the subject is
6 No. 07-1325
the printed word. See, e.g., Beard v. Banks, 126 S. Ct. 2572(2006). George does not say that his own speech has
been curtailed, and the newsletter’s publisher has not
appeared to assert its own constitutional interests (if
it has any) in trying to raise money from prisoners.
George maintains that the prison has refused to allow
him to speak to the public at large by placing advertise-
ments in newspapers. That advertisements can be pro-
tected speech is clear. See, e.g., New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). But what did George want
to say? An advertisement calling on the public to elect a
Governor who will pardon or parole prisoners would be
protected; an advertisement offering to rent a helicopter
for an escape would not. An ad proposing a commercial
transaction (for example: “like-new atlas for sale”) would
be protected speech by a member of the general public,
see Central Hudson Gas & Electric Corp. v. Public Service
Comm’n, 447 U.S. 557 (1980), but prisons are entitled
to control their charges’ economic lives, which likely
includes an entitlement to control want ads and postings
on eBay—if only to prevent prisoners from scamming the
public. Neither the complaint nor any of George’s other
filings tells us whether the advertisements would have
contained political commentary, lonely-heart announce-
ments (another potential source of scams), or offers to
acquire contraband. To repeat our point about the “atlas”:
a plaintiff who offers nothing but generalities by the
time a case is in the court of appeals cannot expect to
prevail.
Finally, a brief word about George’s claims against the
defendants who handled his administrative protests
concerning the events covered by the complaint. The
district court held that these officials are entitled to
absolute immunity. That conclusion is difficult to
reconcile with Cleavinger v. Saxner, 474 U.S. 193 (1985),
which holds that members of prison-discipline boards are
No. 07-1325 7
not entitled to absolute immunity. Doubtless these
persons would be eligible for qualified immunity, but we
need not reach that question. George’s argument on the
merits is that anyone who knows about a violation of
the Constitution, and fails to cure it, has violated the
Constitution himself. That proposition would not help him
if it were correct, for he has lost on all of his underly-
ing constitutional theories. But it is not correct. Only
persons who cause or participate in the violations are
responsible. See Greeno v. Daley, 414 F.3d 645, 656–57
(7th Cir. 2005); Reed v. McBride, 178 F.3d 849, 851–52
(7th Cir. 1999); Vance v. Peters, 97 F.3d 987, 992–93 (7th
Cir. 1996). Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A
guard who stands and watches while another guard
beats a prisoner violates the Constitution; a guard who
rejects an administrative complaint about a completed
act of misconduct does not.
All of George’s other arguments are well handled in the
district court’s lengthy opinions.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-9-07