United States District Court, E.D. Wisconsin
AARON L. JACOBS, JR., Plaintiff,
KERRI BARKLEY and ROBERTA LONGSINE, Defendants.
DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY (DKT. NO.
35), GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF
DISCOVERY DEADLINE (DKT. NO. 42), GRANTING PLAINTIFF'S
MOTION TO WITHDRAW THIRD AMENDED COMPLAINT (DKT. NO. 44),
GRANTING PLAINTIFF'S MOTION TO FILE AMENDED COMPLAINT
(DKT. NO. 45), DENYING PLAINTIFF'S MOTION TO CERTIFY
CLASS AND APPOINT CLASS COUNSEL (DKT. NO. 46), DIRECTING THAT
THE PROPOSED THIRD AMENDED COMPLAINT (DKT. NO. 45-1) IS THE
OPERATIVE COMPLAINT IN THIS CASE, AND DENYING WITHOUT
PREJUDICE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
Aaron L. Jacobs, Jr. is confined at the Brown County Jail,
and is representing himself. On December 19, 2016, the court
screened the second amended complaint, and allowed the
plaintiff to proceed on a First Amendment claim based on
allegations that the defendants, under Brown County Jail
policy, failed to provide him with incoming mail, and
returned the mail to the sender, on four separate occasions.
Dkt. No. 22 at 2. In this order, the court addresses the
plaintiff's motions to amend the complaint, to certify
class and appoint class counsel, to compel, and for extension
of the discovery deadline.
Plaintiff's Motions to Amend the Complaint
April 18, 2017, the plaintiff filed a motion to amend the
complaint, and filed with it a proposed third amended
complaint. Dkt. Nos. 33, 33-1. About forty-five days later,
he filed a request to withdraw the motion and the third
amended complaint. Dkt. No. 44. The court will grant the
plaintiff's request to withdraw his April 18, 2017 motion
to amend and the third amended complaint.
5, 2017, the plaintiff filed another motion to amend the
complaint, again accompanied by a proposed third amended
complaint. Dkt. Nos. 45, 45-1. In this motion, he asks to add
four defendants and a claim related to the Brown County
Jail's mail policy. (On the same date, the plaintiff also
filed a motion for class certification and appointment of
class counsel. Dkt. No. 46. The court will address these
latter applications in the next section.) The defendants
oppose the plaintiff's motion, contending that the
plaintiff unjustifiably delayed in filing the motion. Dkt.
No. 57 at 2.
district court should freely give leave to amend a complaint
when justice requires. Fed.R.Civ.P. 15(a)(2); Indep.
Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
943 (7th Cir. 2012); Johnson v. Cypress Hill, 641
F.3d 867, 871-72 (7th Cir. 2011). “[W]hile a court may
deny a motion for leave to file an amended complaint, such
denials are disfavored.” Bausch v. Stryker
Corp., 630 F.3d 546, 562 (7th Cir. 2010). A district
court may deny leave to file an amended complaint in the case
of undue delay, bad faith or dilatory motive on the part of
the movant; repeated failure to cure deficiencies by
amendments previously allowed; undue prejudice to the
opposing party by virtue of allowance of the amendment; or
where the amendment would be futile. Hukic v. Aurora Loan
Servs., 588 F.3d 420, 432 (7th Cir. 2009); Arreola
v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
proposed third amended complaint is consistent with the
plaintiff's second amended complaint. He seeks to add two
instances of alleged mail rejection, four defendants, a
Monell claim against Brown County and a new due
process claim. Dkt. No. 45-1. Specifically, the plaintiff
alleges that Brown County Jail officials, under jail policy,
failed to provide him with incoming mail, and returned the
mail to sender without notice, on six separate occasions: (1)
June 13, 2013 (defendants Shartner and Von Haden); (2)
February 19, 2014 (defendant Barkley); (3) February 25, 2014
(defendant Olson); (4) February 27, 2014 (defendant Barkley);
(5) February 9, 2015 (defendant Longsine); and (6) February
26, 2017 (defendant Kopidlansky). Id. at 1-4. The
plaintiff also seeks to add a claim based on allegations that
the jail's custom of a “Returned Mail
Spreadsheet”-by which every piece of mail, item or
publication ever denied and returned to sender is
logged-violated his rights under First and Fourteenth
Amendments. Id. at 2-3.
court disagrees with the defendants' contention that the
plaintiff unnecessarily delayed in asking to amend the
complaint. A review of the plaintiff's filings over the
several months preceding the motion shows that he has been
diligently litigating this case. The court screened the
second amended complaint on December 19, 2016. The plaintiff
filed his initial April 18, 2017, motion to amend prior to
the close of discovery, then sought an extension of time to
complete discovery because the defendants didn't timely
respond to his discovery requests. After seeking to withdraw
his April 18, 2017 motion to amend, the plaintiff filed the
instant motion to amend-an improvement on the former because
it doesn't include any Doe defendants. Even if the
plaintiff had “unduly delayed” in filing the
motion, “delay on its own is usually not reason enough
for a court to deny a motion to amend.” See
Johnson, 641 F.3d at 872.
court also finds that allowing the plaintiff to file the
amended complaint will not prejudice the defendants. Although
the defendants filed a motion for summary judgment on June
23, 2017 (which the court will deny without prejudice), the
proposed third amended complaint is based on the same set of
facts as the second amended complaint. Should the defendants
decide to renew their summary judgment motion, their work
will not have been in vain.
court will grant the plaintiff's motion to amend the
complaint. He may proceed on his First Amendment claims
against the individual defendants based on the six mail
rejection incidents. The plaintiff also may proceed on a
Monell claim against Brown County, based on
allegations that the jail's policy at the time was to
reject the mail and return it to the sender without notice.
The court does not, however, see a plausible Fourteenth
Amendment claim based on these allegations. The court also
doesn't see a plausible claim based on the
plaintiff's allegations related to the “Returned
Mail Spreadsheet, ” on which jail staff allegedly
logged at least 70, 730 pieces of inmate mail that were
denied and returned to the senders between January 1, 2004,
and May 18, 2017.
court advises the plaintiff that it will not grant any more
motions for leave to file amended complaints.
the defendants have answered the third amended complaint, the
court will issue a scheduling order setting deadlines for the
completion of discovery and for filing dispositive motions.
Plaintiff's Motion for Class Certification and