United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 33), DENYING WHAT THE COURT
CONSTRUES AS THE PLAINTIFF'S MOTION TO SUBSTITUTE
DEFENDANT (DKT. NO. 40), AND DISMISSING CASE WITHOUT
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
January 19, 2017, the plaintiff filed a complaint against
defendant CO II Johnson, alleging that Johnson gave him the
wrong prescription medication and that it caused him physical
problems. Dkt. No. 1. Judge Nancy Joseph screened the
complaint, and on March 10, 2017, issued an order allowing
the plaintiff to proceed against Johnson on a claim that
Johnson was deliberately indifferent to the plaintiff's
serious medical need under the Eighth Amendment. Dkt. No. 17
at 4. Johnson answered the complaint on May 3, 2017. Dkt. No.
22. This court gave the parties a deadline of August 21, 2017
by which to complete discovery, and a deadline of September
19, 2017 to file dispositive motions. Dkt. No. 25.
September 19, 2017, defendant Johnson filed a motion for
summary judgment, dkt. no. 33, and a supporting brief, dkt.
no. 34. Johnson disputed that he had given any medication to
the plaintiff on the date alleged, or that he'd had any
involvement in distributing medication to the plaintiff on
that date. Id. at 1-2. Johnson indicated that the
medication distribution records showed that an officer named
Steele-not defendant Johnson-gave the plaintiff his
medications on the day in question. Id. at 4.
Johnson also argued that, contrary to the plaintiff's
assertions, DOC policy did allow corrections officers to
distribute medication, id.; that there was no reason
to believe that the plaintiff had received the wrong
medication, id. at 6; and that, even if someone else
had given the plaintiff the wrong medication, the pain,
dizziness and nausea the plaintiff claimed to suffer did not
constitute a serious medical need. Id. at 6-8.
this court's May 22, 2017 scheduling order, the
plaintiff's response to the summary judgment motion was
due within thirty days of the date the defendant served the
motion. Dkt. No. 25 at 1. This means that the plaintiff's
response was due sometime around October 19, 2017. That date
now has passed, and the plaintiff has not responded to the
defendant's motion for summary judgment. On September 26,
2017, however, the court received a letter from the
plaintiff. Dkt. No. 40. In the letter, the plaintiff
indicates that he made a mistake-that it was CO II Steele who
gave him the wrong medication on the day in question.
Id. at 1. Thus, the plaintiff has conceded that he
does not have a claim against the only defendant he has named
in the case- defendant Johnson. For this reason, the court
must grant summary judgment in favor of defendant Johnson.
letter the court received on September 27, 2017 does not ask
the court to do anything; it simply indicates that CO II
Steele was the person who gave the plaintiff the wrong
medication. The court cannot read much of the second page of
the letter, but it appears to discuss someone named
“Talbot, ” or “Talbat, ” and then
says, “it was officer CO II Steele.” Id.
Nine days later, the court received a hand-written document
from the plaintiff. Dkt. No. 41. The document appears to be a
complaint, although it is not on the court's prisoner
complaint form. On the first page, at the top, the document
lists the defendant as CO II Steele. Id. at 1. That
is the only mention of any particular defendant anywhere in
the three-page document. The body of the document refers to
“defendants, ” plural, but does not name any
other individuals. It states that “all security
officers in this claim” are neglecting the fact that
“the D[epartment] O[f] [C]orrections staff that are
named in this complaint” are knowingly letting
non-nurse staff members disburse medications, and letting
them disburse the wrong medications. Id.
next day-October 6, 2017-the court received another document
from the plaintiff. Dkt. No. 42. The title of this document
is “Eighth Amendment.” Id. at 1. This
document does mention CO II Steele, stating that
when Steele gave the plaintiff the wrong medication, it
caused him to vomit blood, become dizzy, fall on the floor
and vomit all over the bed. Id. The document
indicates that Steele left the plaintiff until third shift,
and that all of this did damage to his liver. Id.
court construes the letter it received on September 26, 2017
as the plaintiff's motion for permission to file an
amended complaint. Dkt. No. 40. The court assumes that the
plaintiff read defendant Johnson's motion for summary
judgment and supporting documents, and learned that it was
Steele, not Johnson, who had given the plaintiff his
medication on the date in question. The plaintiff appears to
have reacted to that information by attempting to file an
amended complaint, naming Steele instead of Johnson as a
court will not allow the plaintiff to amend the complaint in
this case for several reasons. First, as the court has
already stated, because there is no evidence that defendant
Johnson violated the plaintiff's constitutional rights,
the court must grant summary judgment in favor of Johnson.
the plaintiff's request is not timely. If, before the
deadline for filing summary judgment, the plaintiff had asked
the court to dismiss defendant Johnson and to add Steele as a
defendant, the court would have done so, and then would have
allowed Steele time (if necessary) to conduct further
discovery. But at this stage, after Johnson has filed a
motion for summary judgment, a brief and proposed findings of
fact-and given that the plaintiff has not responded to that
motion, but concedes that he named the wrong defendant-it is
too late to amend the complaint.
the proposed amended complaint does not state a claim against
CO II Steele. While it names CO II Steele in the caption, it
doesn't explain, in the body of the complaint, what CO II
Steele did to the plaintiff to deprive him of his
plaintiff still believes that he has a claim against CO
Steele, he may file a new lawsuit, naming Steele as a
defendant and explaining what actions Steele took (or
didn't take) to violate his constitutional rights. The
plaintiff should use the court's inmate complaint form;
the court is providing a blank copy of that form, along with
the “Guide to Filing Prisoner Complaints Without a
Lawyer in the United States District Court for the Eastern
District of Wisconsin.”
court GRANTS the defendant's motion for
summary judgment. Dkt. No. 33.
court CONSTRUES the plaintiff's letter
received on September 26, 2017 as a motion to file an amended
complaint, and DENIES that motion. Dkt. No.
court ORDERS that this case is
DISMISSED. The clerk will ...