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Northern v. Frisk

United States District Court, W.D. Wisconsin

March 16, 2017

LAWRENCE NORTHERN, Plaintiff,
v.
KOREEN FRISK, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         Plaintiff Lawrence Northern injured his Achilles tendon playing basketball at the New Lisbon Correctional Institution (NLCI).[1] He brings a claim that defendant Koreen Frisk (a nurse at NLCI) violated his Eighth Amendment rights by failing to properly examine his Achilles and provide him with pain medication after he complained of pain following the injury.

         Frisk has filed a motion for summary judgment, Dkt. 51. After considering the parties' briefing on the motion and their disputes of fact over the events in question, I conclude that a reasonable jury could conclude that Frisk acted with deliberate indifference by failing to examine Northern and provide him with pain medication. Therefore, I will deny the motion for summary judgment.

         Also, Northern has filed a motion to amend his complaint to include malpractice claims against Frisk and two new proposed defendants. Dkt. 65. As discussed below, I conclude that Northern may amend his complaint to bring his malpractice claim against Frisk, but deny his request to add new defendants to the case.

         OPINION

         A. Proposed amended complaint

         Northern, through counsel, filed a motion to amend the complaint to include state law medical malpractice claims against defendant Frisk and two new defendants discussed below: Nurse Adrienne Baumgart and Dr. Kenneth Adler. Northern says that these additions are not burdensome because he has already deposed these defendants so no new discovery is necessary, and the “state law claims arose from the exact same facts as his federal claims.” Dkt. 75, at 1. Frisk opposes, stating that it is too late to amend the complaint, for both statute of limitations and fairness reasons, and that there is no independent basis for federal jurisdiction over the proposed new defendants.

         I conclude that jurisdiction is not a problem for Northern. All of the alleged negligent acts are closely related to Northern's Eighth Amendment claim about treatment for his Achilles injury. See 28 U.S.C. § 1367(a) (“[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”).

         Under Federal Rule of Civil Procedure 15(a)(2), I should “freely give leave when justice so requires.” But justice does not require allowing Northern to bring two new defendants into the fold at this late juncture, even assuming his claims against them do not run afoul of the three-year statute of limitations for medical malpractice claims. See Wis. Stat. §§ 893.54, 893.55 (The amended complaint is dated April 1, 2016, and Northern's interactions with at least Frisk and Baumgart took place before April 1, 2013.). I conclude that it is simply too late for Northern to attempt to his amend his complaint to expand the case to include new defendants.

         Recruited counsel has been representing Northern since late April 2015, and they did not move to amend the complaint until 11 months later, after Frisk had already filed a motion for summary judgment at the dispositive motions deadline. Northern argues that he did not know the extent of his claims until depositions were taken of all the proposed defendants in late January 2016, but I will not credit this line of argument given all the other knowledge of the claims Northern had well before the dispositive motions deadline, including the medical records documenting treatment, Northern's personal knowledge of his interactions with defendants, and an expert on board who already specifically opined about substandard care provided by Frisk and Baumgart.[2] Northern argues that his counsel's need to balance their commercial caseload with their pro bono commitment in this case provides another reason for lenience in considering the motion to amend. Although I recognize and continue to appreciate counsel's efforts in taking on representation of Northern with no guarantee of recompense, it would still be unfair to the state to bring in new defendants at this late date.

         On the other hand, I am inclined to grant Northern's motion as it pertains to his proposed malpractice claim against Frisk. This claim is so similar to the existing Eighth Amendment claim that the state faces only a minimal burden in preparing to litigate it. And the three-year statute of limitations discussed by the parties does not appear to be a problem, as the malpractice claim relates back to the events of the original complaint. Fed.R.Civ.P. 15(c)(1)(B).

         No matter how closely related the claims, Frisk should have an opportunity to file a dispositive motion on the malpractice claim if she so wishes. I will give Frisk a short time to explain whether she will be filing such a motion, and explain how much time she needs to prepare it. Once Frisk has informed the court of her next step, I will direct the clerk of court to schedule a conference with Magistrate Judge Stephen Crocker to hash out a trial date and associated pretrial deadlines.

         B. Motion for summary judgment

         1. Findings of fact

         The following facts are drawn from the parties' proposed finding of fact and supporting evidentiary materials, and they are undisputed unless noted otherwise.

         Plaintiff Lawrence Northern was an inmate at the New Lisbon Correctional Institution (he has since moved on to the Jackson Correctional Institution). Defendant Koreen Frisk is a nurse employed by the Wisconsin Department of Corrections at NLCI.

         a. Injury and ...


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