United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY DISTRICT JUDGE
se plaintiff Kevin Knope recently filed five lawsuits in
• Knope v. United States, Case No.
3:16-cv-379-wmc, dismissed on May 15, 2017, as frivolous.
• Knope v. FMR, LLC, Case No. 3:16-cv-381-wmc,
dismissed on May 16, 2017, for lack of subject matter
• Knope v. State of Wisconsin, Case No.
3:16-cv-381-wmc, dismissed without prejudice on June 30,
2017, subject to reopening if Knope were to file an amended
complaint naming suable defendants by July 21, 2017.
Otherwise, dismissal would be with prejudice.
• Knope v. Kenny, Case No. 3:17-cv-382-wmc,
dismissed on June 13, 2017, for failure to pay the filing
• Knope v. Walker, Case No. 3:17-cv-548-wmc,
which was administratively closed for the reasons explained
dismissal of Case No. 16-cv-379-wmc, Knope filed multiple
motions seeking to reopen it and requesting an emergency
hearing. On July 18, 2017, the court held a hearing to
address that motion, as well as clarify the status of Mr.
Knope's other lawsuits, including the likelihood that a
recently filed complaint was incorrectly opened in a new
lawsuit as Case No. 17-cv-548-wmc, rather than filed as an
amended complaint in Case No. 16-cv-681-wmc. The
purpose of this short order is to memorialize and clarify the
court's rulings during that hearings, which: (1) granted
Knope leave to proceed on one of his two claims in Case No.
16-cv-381-wmc; (2) denied his pending motions in Case No.
16-cv-379-wmc; (3) confirmed that Case No. 17-cv-548-wmc was
properly closed; and (4) confirmed that Knope was not
challenging the dismissal of Case Nos. 16-cv-380-wmc or
initial matter, the court explained during the hearing that
while Knope had an obligation to serve his amended complaint
on each of the defendants, he should not attempt to serve his
complaint and amended complaint on any defendant personally.
What the court should have further explained is that Knope is
relieved of serving his complaint entirely because he has
been allowed to proceed in forma pauperis. Instead,
this order will direct the U.S. Marshal Service to effectuate
service on the two newly-named defendants on his behalf.
noted, the court also accepted Knope's amended complaint
in Case No. 16-cv-381-wmc, which meets his July 21st filing
deadline. When he filed this complaint on July 14, 2017, it
was incorrectly opened as a new matter -- Case No.
3:17-cv-548-wmc. Knope confirmed during the hearing that his
July 14 filing was, in fact, the amended complaint he sought
to satisfy this court's deadline in Case No.
16-cv-681-wmc. Moreover, the court held that Knope's
amended allegations -- specifically naming as defendants
Police Officer John Doe, Badge No. 7646, and Jenna Celeski as
individual state actors -- were sufficient to allow him to
proceed on his claim under the Fourth and Fourteenth
Amendments related to his April 2016 involuntary civil
commitment, but not on his other claim related to the
treatment he received while he was committed.
Celeski, even though it appears that Journey Mental Health
Center is a private entity, it is reasonable to infer that
she acted under “color of law” as required for
§ 1983 liability. Indeed, when Celeski signed the form
ordering Knope's involuntary civil commitment, it appears
she was acting under the authority of Wis.Stat. § 51.20,
which sets out the circumstances permitting involuntary
commitment. See London v. RBS Citizens, N.A., 600
F.3d 742, 746 (7th Cir. 2010) (private person acts under
color of law when action was caused by the exercise of a
right created by the state by someone fairly said to be a
state actor). Likewise, Knope claims that Officer Doe carried
out Celeski's allegedly improper order when he arrested
him. Accordingly, the court will direct the Marshal to effect
service of the complaint, amended complaint, this order and
the court's original order in this case on these two
so, Knope may not proceed on his other Fourteenth Amendment
claim against these named defendants. While Knope also
claimed that he was subjected to a forced injection and
unnecessary physical force after he was brought to
the Winnebago Mental Health Institute, he was similarly
required to amend his complaint to name a suable defendant as
to that claim as well. However, his amended complaint neither
addresses his allegations regarding his experiences after
confinement at Winnebago Mental Health Institute, nor
identifies an individual defendant personally involved in
violating his rights during his confinement. Based on his
current allegations, therefore, Knope may not proceed on that
claim. If Knope can identify a suable defendant personally
involved in specific actions after his confinement, he may
seek leave to amend his complaint for a second time,
but the court is increasingly likely to deny it the
longer he waits. Accordingly, Case No. 17-cv-548-wmc has been
closed; the amended complaint has been properly docketed in
Case No. 3:16-cv-381-wmc; and the U.S. Marshal will serve it
on the individually-named defendants, along with the original
complaint, the court's original order dismissing the case
without prejudice and this order allowing Knope to now
proceed on one of his two claims against Officer Doe and
remaining issue with respect to Case No. 16-cv-381-wmc. Knope
filed a Motion for Subpoena (Case No. 16-cv-381-wmc, dkt.
#16), in which he requests that the court issue him subpoenas
directing Celeski and Doe to appear for direct examination.
As named defendants, both will be obligated to appear in this
matter pursuant to the Federal Rules of Civil Procedure, a
subpoena is unnecessary. Accordingly, this motion will be
during the hearing, the court explained that the claims Knope
outlined in his complaint in Case No. 16-cv-379-wmc were
frivolous, having been repeatedly rejected by the United
States Supreme Court. The court further explained that
Knope's subsequent motions did not change this
conclusion, and thus each motion was denied on the record.
The court informed Knope that should he wish to pursue this
lawsuit further, he has the right to appeal this court's
decision to the Court of Appeals for the Seventh Circuit and,
if necessary, the United States Supreme Court. As he has
since filed a notice of appeal, it appears that Knope
understands this right. But he was also cautioned that
repeated filings of frivolous lawsuits may well result ...