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Miller v. Larson

United States District Court, W.D. Wisconsin

May 16, 2017

JOHN MILLER, Plaintiff,
DR. CHARLES LARSON, et al., Defendants.

          OPINION & ORDER

          WILLIAM M. CONLEY District Judge.

         Pro se plaintiff John Miller asserts an Eighth Amendment excessive force claim against several staff members at the Fox Lake Correctional Institution (“FLCI”), all of which arise from defendants' attempts to remove an allegedly stolen ring from his finger. Miller currently has three motions before the court: (1) a Motion to Supplement Pleadings and for Reconsideration (dkt. #30); (2) a Motion to Enforce Decision (dkt. #29); and (3) a Motion to Add Scott Perkins as Defendant (dkt. # 52). Defendants have also filed their own motion for summary judgment on exhaustion grounds (dkt. # 40). For the reasons that follow, the court will deny Miller's motions and grant defendants' motion, effectively ending this lawsuit.

         I. Motion for Reconsideration (dkt. #30)

         As for plaintiff Miller's motion for reconsideration of the order screening his complaint, the court denied him leave to proceed against Melvin Pulver after concluding that his request to amend still did not include any facts even suggesting Pulver was somehow involved in the ring removal. Miller now asserts that Pulver was sufficiently involved in the ring removal because (1) he called Miller to meet with him about the ring and (2) ordered him to go to HSU. Taking both allegations as true, however, Pulver's involvement was still not sufficiently tied to the allegations of excessive force. To the contrary, while Miller alleges that he met Pulver and reported to HSU for the ring removal as directed, Pulver did not accompany him to HSU, nor did he participate in the ring removal, nor did he direct HSU to use any means necessary to remove the ring. As such, Pulver's involvement was insufficient to warrant reconsideration of the court's initial order. See Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997) (supervisor may be liable if he knows about and approves of conduct); see City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989) (supervisor may be held liable if he had control over deficient training or flawed policies).

         The court granted Miller leave to proceed on his claim that the HSU staff went too far in their attempts to remove the ring, not on the basis that the initial attempt to remove the ring was inappropriate. Nothing since then has suggested a broader claim exists. Accordingly, the court will once again deny Miller's request to include Pulver as a defendant in this lawsuit.

         II. Motion to Enforce Decision (dkt. #29)

         Miller also filed a “Motion to Enforce Decision, ” in which he appears to ask the court to enforce a state court “Default and Failure to Defend” decision against the defendants in the amount of $150, 000.00. He also again asks that the court recruit counsel on his behalf --a request this court has already denied twice because it was not apparent that the complexities of this case exceed his abilities to litigate it without an attorney. See Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).

         As for the first request, Miller cites to Dane County Circuit Court Case No. 15-cv-2036, stating that the defendants “conceded to medical malpractice” and “gross negligence.” However, Miller's motion is based on a misunderstanding of the state court proceeding. Indeed, the circuit court case Miller is referencing is the same case that is currently before this court. See Miller v. Larson, Case No. 2015CV2036, available at (last visited May 16, 2017). The defendants properly removed that case to this court given that it presented a federal question -- whether defendants violated the Eighth Amendment of the U.S. Constitution. 28 U.S.C. §§ 1331, 1441.

         Once receiving the notice of removal to federal court, the circuit court properly closed that matter due to a lack of jurisdiction. A decision of default, if any, by the state court was not a judgment on the merits, nor did it involve any sort of binding admission by the defendants that they were liable for any of the alleged acts in the complaint. As there is no judgment against defendants, Miller's request for enforcement of the state court decision must be denied.

         As for his request for counsel, the court will again deny it because Miller still has not convinced the court that this matter is one in which appointment of counsel is appropriate. On the contrary, Miller's complaint is procedurally defective, something legal representation could not change.

         III. Motion to Add Scott Perkins as Defendant (dkt. #52)

         In his last pending motion, Miller requests that the court permit him to proceed against Scott Perkins in this matter. While unclear, Miller's motion appears to be based on his having identified Perkins as an individual that was involved a fraudulent conspiracy, leading up to the allegedly unwarranted ring removal, which is the subject of his excessive force claim. Yet Miller does not allege -- and none of the documents he attaches explains --how Perkins was personally involved in or responsible for the allegations of excessive force. At most, it appears that Perkins was an employee of the Monroe county sheriff department at the time, and he may have contributed to the FLCI staff decision to remove the allegedly stolen ring from Miller by requesting that they recover the ring. Evan assuming that Perkins made that request, Miller may not proceed against him any more than against Pulver. Like Pulver, Perkins was not present for the ring removal attempts, nor did he participate in any alleged decision to do so using excessive force. Accordingly, this motion will also be denied.

         IV. Defendants' Motion for Summary Judgment

         A. ...

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