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Johnson v. Wisconsin Correctional Center

United States District Court, E.D. Wisconsin

June 23, 2016

EARNEST L. JOHNSON, JR., Plaintiff
v.
WISCONSIN CORRECTIONAL CENTER, DR. EUGENE BURKE, AURORA HEALTH CARE, DR. JOHN DOE, and, DR. JEFFREY B. SHOVERS Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Plaintiff, Earnest Johnson, filed an action under 42 U.S.C. § 1983, alleging that defendants violated his civil rights. This matter comes before me on: (1) plaintiff's motion for leave to proceed without prepayment of the filing fee (ECF No. 2); (2) plaintiff's motion, and second motion, for appointment of counsel (ECF Nos. 4, 11); (3) plaintiff's motion to state a medical malpractice claim (ECF No. 6); (4) plaintiff's motion to change payment from the full filing fee ($350.00) to $304.12 (ECF No. 9); (5) plaintiff's motion to correct the caption and change defendant names (ECF No. 10), and (6) plaintiff's motion for permission to talk to a mediator (ECF No. 12).

         Motions on Payment of the Filing Fee

         The Prison Litigation Reform Act ("PLRA") allows inmates to proceed with their lawsuits in federal court without pre-paying the $350 filing fee. 28 U.S.C. § 1915. However, the inmate must comply with certain requirements, one of which is to pay an initial partial filing fee. Id.

         On May 19, 2016, plaintiff petitioned to proceed without pre-paying the filing fee. I assessed an initial partial filing fee of $304.13 that was due within 21 days of the order. Plaintiff paid the full filing fee ($350.00) on June 2, 2016. Therefore, I will deny as moot plaintiff's motion to proceed without prepayment of the filing fee. (ECF No. 2)

         I will further deny plaintiff's motion to change his payment from the full filing fee ($350.00) to $304.13. (ECF No. 11). I issued the order calculating the initial partial filing fee before plaintiff sent in payment in full, and plaintiff provides no explanation for why he initially paid the amount in full but now seeks return of some of that money. Plaintiff is ultimately required to pay the filing fee in full notwithstanding the option to initiate the action without prepayment of the entire amount. Plaintiff may file a renewed motion to change payment if he can show that payment in full was caused by prison error rather than his own request to send that amount.

         Motions to Appoint Counsel

         I have discretion to recruit counsel for litigants unable to afford one in a civil case. Navejar v. Iyiola, 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). However, litigants must first show me that they have made reasonable attempts to secure private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). Plaintiff must contact at least three attorneys and provide me with: (1) the attorneys' names, (2) the addresses, (3) the date and way plaintiff attempted to contact them, and (4) the attorney's responses. To that end, plaintiff must do more than merely assert that he contacted several attorneys.

         Plaintiff asserts that he contacted several attorneys but he has not provided me with any of the other information I need. Therefore, I will deny his motions to appoint counsel without prejudice. (ECF Nos. 4, 11).

         Motions on Amending the Complaint

         Plaintiff seeks to amend the complaint to add medical malpractice claims. (ECF No. 6). He also seeks to change the caption to dismiss Wisconsin Correctional Center and Aurora Health Care from the action and add SGT Janus and Dr. Maria Beg as new defendants. (ECF No. 10).

         The Federal Rules of Civil Procedure allow plaintiff to amend the complaint once as a matter of course. Fed.R.Civ.P. 15(a)(1)(A). As a result, plaintiff's motions to add medical malpractice claims (ECF No. 6) and change the defendants (ECF No. 10) are denied as moot. However, plaintiff may file an amended complaint on or before July 22, 2016, stating every claim he seeks to proceed with and identifying every defendant he seeks to proceed against. I will then issue one comprehensive screening order for the entire action. If plaintiff chooses not to file an amended complaint, I will screen the original complaint at that time.

         Plaintiff is advised that the amended complaint must bear the docket number assigned to this case and must be labeled "Amended Complaint." The amended complaint supersedes the prior complaint and must be complete in itself without reference to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). The "prior pleading is in effect withdrawn as to all matters not restated in the amended pleading[.]" Id. at 1057.

         Motion ...


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