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Jacobs v. Barkley

United States District Court, E.D. Wisconsin

October 13, 2017

AARON L. JACOBS, JR., Plaintiff,
v.
KERRI BARKLEY and ROBERTA LONGSINE, Defendants.

         ORDER 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. NO. 49)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. Plaintiff's Motions to Amend the Complaint

         On 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.

         On June 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.

         A 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).

         The 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.

         The 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.[1] 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.

         The 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.

         The 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.

         The court advises the plaintiff that it will not grant any more motions for leave to file amended complaints.

         Once 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.

         II. Plaintiff's Motion for Class Certification and ...


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