United States District Court, E.D. Wisconsin
DENYING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT (DKT.
NO. 14); DENYING PLAINTIFF’S MOTION TO ADD CLAIMS (DKT.
NO. 29); DENYING PLAINTIFF’S MOTION FOR COURT RULING
(DKT. NO. 30); DENYING PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS’ BRIEF (DKT. NO. 40); DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT.
NO. 41); DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE
TO FILE OVERSIZED BRIEF, MOTION FOR EXTENSION OF TIME, AND
MOTION FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 45); DENYING
PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 47); DENYING
PLAINTIFF’S MOTION FOR DISCOVERY (DKT. NO. 59);
GRANTING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S
REPLY BRIEF (DKT. NO. 72); GRANTING DEFENDANTS’ MOTION
TO DEPOSE INCARCERATED PERSON (DKT. NO. 74); DENYING
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 76);
DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 78);
DENYING PLAITNIFF’S MOTION TO COMPEL (DKT. NO. 81);
DENYING PLAINTIFF’S MOTION TO STAY (DKT. NO. 82);
GRANTING PLAINTIFF’S MOTION FOR ORDER (DKT. NO. 83);
AND DENYING WITHOUT PREJUDICE MEDICAL DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT WITH LEAVE TO RE-FILE (DKT. NO.
PAMELA PEPPER United States District Judge
plaintiff, a state prisoner, filed a pro se
complaint under 42 U.S.C. §1983, alleging that the
defendants violated his civil rights in preparation for and
during time he spent at the Kenosha County Jail (Jail). The
court screened the plaintiff’s complaint on September
10, 2015, and allowed him to proceed on claims regarding the
medical care he received at the Jail. Dkt. No. 12.
Plaintiff’s Motion to Amend (Dkt. No. 14)
September 21, 2015, the plaintiff filed a motion to amend the
complaint, along with a one-page inmate/detainee medical
request from the Jail. Dkt. No. 14. The plaintiff makes
specific arguments regarding his claims against certain
defendants, and argues that the court should not have
dismissed Nurse Jane Doe 1 and Corporal Garvela. Id.
at 1-3. The plaintiff argues that the court applied a
standard to his complaint far above what should be expected
of a pro se litigant, and he asks for an opportunity
to amend his complaint. Id. at 3-4. He says this is
the third complaint the court has misconstrued, or in which
it has stated something in its error that he did not say in
complaint to rule against him. Id. at 4.
court construes this pleading as a motion to amend the
complaint. The court will deny the motion, because plaintiff
did not comply with Civil Local Rule 15(a), which requires
that the plaintiff must attach to a motion to amend the
complaint a proposed amended complaint.
court also could have construed the plaintiff’s
pleading as a motion for reconsideration under Federal Rule
of Civil Procedure 54, which allows the court to revise any
order adjudicating fewer than all the claims at any time
before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties. In order for
the court to grant a Rule 54 motion, however, the plaintiff
would have to have shown “manifest errors of law or
fact” in the court’s screening order or presented
any newly discovered evidence. See Rothwell Cotton Co. v.
Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987)
(citation omitted). He has not done so.
court will deny this motion.
Motion Response (Dkt. No. 29) and Motion to Strike (Dkt. No.
defendants filed their answer on November 2, 2015. Dkt. No.
27. Two weeks later, the plaintiff filed a document entitled
“Motion Response to Defendants.” Dkt. No. 29. The
second full paragraph of that motion states, “I ask the
court pursuant to Fed. R. Civ. Pro 18 to add the claims of
the action of Defendant Kurt Mikutis of an 8-28-15 first
degree attempted murder 9420.01(1)(A) by toxic’s,
retaliation for continuing prior litigation, along with
Defendant Corporal Darvela [sp].” Id. He then
responds to each section of the defendants’ answer and
talks about the ways in which the court erred in its
screening order. Toward the end of the response, he discusses
in detail why he believes he ought to be able to obtain
damages from defendant Beth. Id. at 9-18. Throughout
the motion, he makes reference to several other defendants,
and to a number of different incidents. He ends the motion by
asking the court to “allow those new claims while
dismissing the defendants affirmative defenses.”
Id. at 22. He also asks the court to set a date for
the defendants to answer the new claims, and to set dates for
discovery and trial. Id.
defendants filed a brief in opposition to the
plaintiff’s “Motion Response to
Defendants.” Dkt. No. 31. They construed the motion
response as a motion to join claims, and perceived that the
plaintiff was trying to add into his complaint new claims
against defendants Mikutis and Garvela regarding something
that happened on August 28, 2015. Id. at 2-3. The
defendants argued that the court should not allow the
plaintiff to join these new claims, because he was trying to
join different actions against different parties based on
different facts, in violation of Fed.R.Civ.P. 18(a).
Id. at 3. The defendants also argued that even if
the plaintiff filed these claims in a separate lawsuit, they
would not survive a motion to dismiss.
December 31, 2015, the plaintiff filed a motion to strike the
defendant’s opposition brief. Dkt. No. 40. He argues
that the claims he wants to bring would survive a motion to
dismiss, and reiterated some of the facts he asserted in his
motion response. Id.
difficult for the court to separate out, in the twenty-two
pages of the motion response, what claims the plaintiff wants
to add against what defendants for what events. He may want
to add claims against Mikutis (and possibly Beth) in their
individual capacities for an incident which took place during
a separate stay at the Jail in August 2015, during which the
plaintiff was taken to an extremely high security segregation
cell block, placed in an unclean cell, laughed at when he
asked to move, and told to quit filing lawsuits. The
plaintiff flooded the cell and turned over the garbage can,
and its contents mixed with the water and ran under the door
and went into the hallway and made the guards sick. They
gagged and ran out of the hall, and the plaintiff was left
there for another hour even after the other inmates were
defendants argue that if the plaintiff wants to add claims
based on that incident, the court should deny his request,
because those claims are unrelated to the claims in the
plaintiff’s initial complaint. Dkt. No. 31 at 3. They
argue that such claims, even if they are made against some of
the same defendants that the defendant named in the initial
complaint, would not be properly joined under Federal Rule of
Civil Procedure 18. Id. at 3-4. The defendants also
suggest that amendment would be futile, because the plaintiff
is trying to add criminal charges to this civil
case, id.; they note (correctly) that only
prosecutors (district attorneys) have the authority to file
criminal charges; criminal statutes do not create private
causes of action. Id. at 4.
extent that it understands what the plaintiff wishes to do,
the court agrees that he is trying to join unrelated claims.
Under Rule 18(a), “[u]nrelated claims against different
defendants belong in different suits.” George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007). For example,
“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.” Id.
The court will deny the plaintiff’s motion response to
the extent that it asks to add new claims relating to the
incident in August 2015, Dkt. No. 29, and denies the
plaintiff’s motion to strike the defendants’
opposition brief, Dkt. No. 40.
court also notes that the civil procedure rules do not
provide for a plaintiff to file a “response” to
the defendants’ answer. Once all the defendants in a
case have answered the complaint, the court issues a
scheduling order, which sets out deadlines for conducting
discovery and for filing motions (such as summary judgment
motions). If the defendants file a motion for summary
judgment, the plaintiff will have an opportunity to dispute
their version of events in his response. If the case survives
summary judgment and goes to trial, the plaintiff will have
the opportunity to present his case at trial. Until all of
the defendants have answered and the court has issued a
scheduling order, however, it is too soon for the court to
make any decisions about who did what to whom.
Motion for Court Ruling (Dkt. No. 30)
December 7, 2015, the plaintiff filed a motion asking for a
court ruling on his response to the DOC defendants’
answer. Dkt. No. 30. The court is, as it discussed above,
denying the “motion response, ” despite the fact
that the rules do not allow a plaintiff to file a
“response” to a defendant’s answer.
Accordingly, the motion for an order is moot.
Motion to Appoint Counsel (Dkt. No. 41)
December 31, 2015, the plaintiff filed a motion asking the
court to appoint counsel, along with a supporting declaration
and brief. Dkt. No. 41. The plaintiff argues that he is
unable to afford counsel, that the issues in this case are
complex, and that he has sought counsel for well over a year.
Id. The plaintiff also tells the court that he is a
handicapped person who is being denied the use of a
wheelchair in retaliation for complaining about his health.
Id. He says that the wheelchair denial means he has
no access to the law library or to other inmates who can
assist him. Id. He also states that he broke his
hand in August 2015, that he is in constant pain due to no
medical care for this, and that he cannot effectively write.
civil case, the court has discretion to decide whether to
recruit a lawyer for someone who cannot afford one.
Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013);
28 U.S.C § 1915(e)(1); Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
First, however, the person has to make a reasonable effort to
hire private counsel on their own. Pruitt v. Mote,
503 F.3d 647, 653 (7th Cir. 2007). The plaintiff refers the
court to letters from attorneys, which he filed in his other
cases, as proof of his attempts to secure counsel on his own.
Although requests for representation should be case-specific,
the court finds that the plaintiff has met the threshold
requirement under Pruitt.
result, the court must decide “whether the difficulty
of the case - factually and legally - exceeds the particular
plaintiff’s capacity as a layperson to coherently
present it.” Navejar, 718 F.3d at 696 (citing
Pruitt, 503 F.3d at 655). To decide that, the court
looks, not only at the plaintiff’s ability to try his
case, but also at his ability to perform other “tasks
that normally attend litigation, ” such as
“evidence gathering” and “preparing and
responding to motions.” Id.
motion to appoint counsel and the supporting documents, the
plaintiff makes a number of serious allegations regarding his
current conditions at Columbia Correctional Institution. But
the allegations in his complaint-the allegations in the
lawsuit he has brought-are about the plaintiff’s
interactions with staff at the Kenosha County Jail. If he has
separate retaliation or access to the courts claims against
staff members at Columbia, the plaintiff must bring those
allegations in a new, different complaint.
court must limit its inquiry to whether the plaintiff is
competent to litigate this particular case, which involves
medical claims against the individual defendants and
Monell claims against defendants Sheriff David Beth
and Sgt. Mikutis in their official capacities. The court
finds, at this stage of the case, that the plaintiff has
demonstrated that he is able to litigate this case on his
own. The plaintiff has filed numerous handwritten documents
in this case. He includes many facts and legal citations in
each document he files. The court can read his handwriting.
The only difficulty the court encounters in understanding the
plaintiff’s pleadings is the fact that he includes so
much information, and so many allegations about so many
different people, institutions and events, that the court
finds it hard to separate the information. The plaintiff
writes lucidly, and even filed a complete response to the
defendants’ motion for summary judgment, including a
brief, a response to the defendants’ proposed findings
of fact, a sworn declaration, and exhibits.
every prisoner who files a complaint asks the court to
appoint counsel. The majority of prisoners don’t have
any money, cannot afford to hire lawyers, and do not have
legal training themselves. Many have physical difficulties,
many have a hard time accessing the law library. In an ideal
world, the court either would have money available to hire
counsel for prisoner plaintiffs, or would have enough
volunteer lawyers to appoint counsel to represent every
prisoner who asks for one. But the court does not have either
of those resources.
point, it appears to the court that the plaintiff is able to
represent himself. The court will deny the motion to appoint
counsel at this time, without prejudice to the plaintiff
renewing the motion if the ...