United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART THE PLAINTIFF'S MOTION TO AMEND AND ADD PARTIES
(DKT. NO. 28); DENYING THE PLAINTIFF'S MOTION FOR
SUBSTITUTION OF JUDGE (DKT. NO. 31); DENYING AS MOOT THE
DEFENDANTS' MOTION TO DISMISS (DKT. NO. 33); DENYING THE
PLAINTIFF'S MOTION FOR AMENDMENT OF CLERICAL ERRORS BY
CLERK OF COURT (DKT. NO. 38); DENYING THE PLAINTIFF'S
MOTION SEEKING THE COURT'S ASSISTANCE IN OBTAINING THE
NAMES OF DEFENDANTS AND OBTAINING THEIR DEPOSITIONS (DKT. NO.
40), GRANTING IN PART AND DENYING DEFENDANTS' JOINT
MOTION TO STAY DISCOVERY (DKT. NO. 43); AND GRANTING THE
DEFENDANTS' JOINT MOTION FOR ENTRY OF A BRIEFING SCHEDULE
(DKT. NO. 44)
PAMELA PEPPER United States District Judge
plaintiff, who is incarcerated at the Waupun Correctional
Institution, alleges that the defendants violated his
constitutional rights when he was confined at the Milwaukee
County Criminal Justice Facility (MCCJF). Dkt. No. 10. On
June 30, 2016, the court screened the amended complaint, and
identified the six claims upon which the plaintiff could
proceed in this case.Since that time, the parties have filed
several motions, which the court addresses here.
Plaintiffs Motion to Amend and Add Parties
plaintiff has filed a motion to amend and add parties. Dkt.
No. 28. First, he asks to amend the complaint to add
"policy" claims against Milwaukee County and
Sheriff David Clarke. IcL at 1-2. The plaintiff alleges that
Milwaukee County policy permitted violations of his and other
pretrial detainees' procedural due process rights. IcL at
1. He also states that jail policy provided for
unconstitutional conditions of confinement in that it
deprived inmates of mattresses, showers, adequate food,
phones, and due process hearings. IcL The plaintiff alleges
that Sheriff Clarke imposed these policies. Id. at
the plaintiff identifies some of the Doe defendants, and he
asks the court to add the newly identified defendants as
parties. Id. at 2-3. The plaintiff identifies the
Jane Doe Nurses as Nurse Vicki, Nurse Brenda and Nurse Brenda
(the court will refer to the Nurses Brenda as Nurse Brenda 1
and Nurse Brenda 2); he identifies the Social Worker Does as
Malinda and Sara; he identifies the correctional officer John
Does as Officer Wilborn, Officer Mizdiak, Officer Hubber,
Officer Yang, Officer Webb, Officer Hannah, Officer Ruiz,
Officer Mercado, Officer Briggs, and Officer Stephen; and he
identifies Major Jane Doe and Major Ambrose. Id. at
2-3, 4. The plaintiff also asks the court to assist him in
obtaining the name of Dr. Jane Doe. Id. at 4.
the plaintiff asks to add several new claims against existing
defendants. Id. at 3. He alleges that on August 1,
2013, Officer Mercado and Nurse Brenda stood by, not
assisting the plaintiff or getting help for him, when he
continually rammed his head into the door while on
“suicide watch.” Id. On August 3, 2013,
Dr. Jane Doe visited the plaintiff as his cell. Id.
The plaintiff had visible knots and bruises from an attempted
suicide. Id. Dr. Jane Doe failed to get the
plaintiff medical attention and refused to address the reason
he was not placed in “special needs.”
Id. The plaintiff also alleges that Major Ambrose
(former Major Jane Doe) ordered him to be kept in segregation
after March 29, 2013, even though Ambrose knew that the
plaintiff had urgent mental health needs, including issues
with suicide attempts. Id. at 4.
court will update the docket to reflect the identification of
the Doe defendants. With regard to the plaintiff's
request for the court's assistance in identifying Dr.
Jane Doe, the plaintiff should let the court know what steps
he has taken so far to identify her, including whether he
requested her name from the defendants and what response, if
any, he received from them. This will help the court to
assist the plaintiff, if needed.
regard to the plaintiff's request to amend the complaint
to add new claims, the plaintiff has not filed a proposed
amended complaint. The court's Local Rules require that
any amendment to a pleading must reproduce the entire
pleading as amended. Civil L.R. 15(a) (E.D. Wis.). The
plaintiff must file the proposed amended complaint as an
attachment to the motion to amend. Civil L.R. 15(b) (E.D.
Wis.). Because he has not attached a full, proposed amended
complaint, the court will deny the plaintiff's motion to
amend the complaint.
Plaintiff's Motion for Substitution of Judge
plaintiff has filed a motion for substitution of judge. Dkt.
No. 31. He states that he does not believe he will receive a
fair trial and unbiased decision from Judge Pepper.
Id. at 1. The plaintiff also states that Judge
Pepper contradicted herself in two of the plaintiff's
prior cases, and misapplied Supreme Court rulings.
Id. He cites to two of his prior cases, Brown v.
Hicks, Case No. 15-cv-509-PP (E.D. Wis.), Brown v.
Milwaukee Cnty. Public Defenders Office, Case No.
16-cv-632-PP (E.D. Wis.). The plaintiff goes on to explain
the errors he believes Judge Pepper made in those cases. Dkt.
No. 31 at 1-2. The plaintiff has appealed both cases to the
Court of Appeals for the Seventh Circuit.
455(a) of Title 28 of the United States Code requires a
federal judge to “disqualify [her]self in any
proceeding in which [her] impartiality might reasonably be
questioned.” “[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 555 (1994). The plaintiff's motion does not allege
that Judge Pepper is not impartial, nor does he argue that
she relied upon knowledge acquired outside his judicial
proceedings, or displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible.
See id. at 556. Rather, he argues that Judge Pepper
got it wrong when she made the decisions in those other
cases. That is not a basis for disqualifying a judge; that is
a basis for appealing the judge's rulings, and the
plaintiff has done that in both of his other cases. The court
will deny plaintiff's request for disqualification under
Defendants' Motions to Dismiss for Failure to Exhaust
October 28, 2016, the defendants filed a joint motion to
dismiss for failure to exhaust administrative remedies. Dkt.
No. 33. The plaintiff filed a response to the motion on
November 3, 2016. Dkt. No. 41.
November 3, 2016, the defendants filed an amended
joint motion to dismiss the plaintiff's case for failure
to exhaust administrative remedies, which included a request
that the court stay further proceedings. Dkt. No. 43. The
defendants attached to the motion the text of Civil Local
Rules 56 and 7, and Federal Rule of Civil Procedure 56(c),
(d), and (e). In addition to dismissal, the defendants