United States District Court, W.D. Wisconsin
DALE D. DRINKWATER, Plaintiff,
WISCONSIN DEPT. OF CORR. MEDICAL COMMITTEE, ET AL., Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
lawsuit, plaintiff Dale Drinkwater alleges Eighth Amendment
and state law claims against several individuals who have
worked for the Wisconsin Department of Corrections
(“DOC”) and participated in Drinkwater's
treatment for his hip problems between 2010 and January 2015.
There are currently several motions pending. For the reasons
that follow, the court will deny plaintiff's motion to
add two new defendants (dkt. #29), grant defendants'
motion for leave to file an amended answer (dkt. #38), and
deny without prejudice plaintiff's motions for assistance
in recruiting counsel (dkts. ##25, 30, 34, 36).
motion to add defendants Lt. Burdick and Lt. Mariani (dkt.
motion, plaintiff refers the court to one of the supplements
to his complaint (dkt. #21), and seeks to add as defendants
(1) Lt. Burdick, the Dodge Correctional Institute
(“DCI”) transportation supervisor, and (2) Lt.
Mariani, who also appears to be a DCI employee. According to
the documents in the supplement, on January 26, 2017,
Drinkwater was transported from DCI to Racine Correctional
Institution (“RCI”), where he is currently
incarcerated. Before his transport, Drinkwater apparently
tried to ensure that he would be transported in a wheelchair
accessible van because his special needs assessment in his
previous incarceration provided for that mode of transport.
Despite requesting wheelchair transport, Drinkwater alleges
that neither Lt. Burdick nor Lt. Mariani arranged for it.
Instead, Drinkwater alleges, he was transported in a regular
van, which caused significant pain and a large hematoma, as
well as chronic pain walking since. To his motion, Drinkwater
attaches his special needs assessment, which does, in fact,
indicate that he has been assigned wheelchair transport since
2015. (Dkt. #21-3.)
Federal Rule of Civil Procedure 15(a)(2), the court
“should freely give leave when justice so
requires.” In particular, such motions should be
granted in the absence of “undue delay, bad faith or
dilatory motive on the part of the movant.” Indiana
Funeral Dir's Ins. Trust v. Trustmark Ins. Corp.,
347 F.3d 652, 655 (7th Cir. 2003). In granting leave to
proceed, however, the court must also ensure that any new
claims or defendants are properly joined under Federal Rule
of Civil Procedure 20(a)(2), which permits multiple
defendants to be joined in the same lawsuit only where the
claim arises from the same “transaction, occurrence, or
series of transactions or occurrences.” The Court of
Appeals for the Seventh Circuit recently reminded district
courts of the importance of this requirement. Owens v.
Evans, 878 F.3d 559, 561 (7th Cir. 2017).
Drinkwater's pending Eighth Amendment claims relate to
the medical care he received between 2010 and 2015 while he
was incarcerated at the Fox Lake Correctional Institution
(“FLCI”) and Redgranite Correctional Instiuttion
(“Redgranite”). Had the incident involving
Burdick and Mariani occurred during or shortly after 2015 or
included defendants already named in the complaint, this
court may have granted his request to include these putative
defendants. As it is, this incident did not take place for a
full two years after the last incident outlined in
the court's screening order, and it involves non-medical
care decisions by non-defendants. As such, it would be a
significant reach for the court to conclude that
Drinkwater's pending claims related to his January 2017
transport issues. Accordingly, if Drinkwater wishes to
proceed against Burdick and Mariani, he will have to do so in
a separate lawsuit.
motion to file amended answer (dkt. #38)
January 26, 2018, defendants also filed a motion for leave to
file an amended answer. (Dkt. #38.) Defendants filed their
answer on December 6, 2017, and their present motion a month
and a half later. It appears that the only change to their
proposed amended answer is the addition of new affirmative
defenses. As dispositive motions are not due until October
19, 2018, plaintiff will not be prejudiced by those
additions. Accordingly, pursuant to Federal Rule of Civil
Procedure 15(a)(2), the court will grant this motion.
Motions for assistance in recruiting counsel (dkts. ##25, 30,
turning to Drinkwater's motions for assistance in
recruiting counsel, he claims to be incapable of proceeding
without the help of an attorney because: his incarceration
limits his access to legal materials; he has limited mobility
because he has a broken screw in his hip prosthesis; this
case involves medical care decisions that are too complex for
him to litigate; and he cannot afford an attorney and he has
been unsuccessful in attempting to secure pro bono
counsel for himself, having received numerous rejection
letters. While Drinkwater has satisfied the initial
requirement of showing reasonable efforts to secure an
attorney on his own, it is not still apparent at this stage
of the lawsuit that the legal and factual complexity of this
case exceeds his ability to represent himself. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
noted already, the court granted Drinkwater leave to proceed
on his Eighth Amendment and state law claims against several
defendants related to the medical care he received for the
hip problems he experienced at FLCI and Redgranite between
2010 and 2015. A preliminary pretrial conference order was
issued in this case that explained that the parties should
begin the discovery process using the Federal Rules of Civil
Procedure. The order also set March 5, 2018, as the deadline
for dispositive motions on exhaustion grounds; October 19,
2018, as the deadline for merits-based dispositive motions;
and May 6, 2019, as the trial date. (Dkt. #37, at 4-11.) At
this point, therefore, Drinkwater's obligations include
preparing and responding to discovery requests, and in the
near future, possibly responding to defendants' motion
for summary judgment on exhaustion grounds.
specifically, the court is not persuaded that Drinkwater
needs an attorney to complete these tasks. As to exhaustion,
counsel is typically unnecessary because the legal issues, in
large part, are straightforward and the facts are often
undisputed. As to discovery, the preliminary pretrial
conference order not only explicitly cites to the Federal
Rules of Civil Procedure that Drinkwater should use, but also
provides information and guidance about how Drinkwater should
conduct discovery. (Id. at 8-11.)
broadly, Drinkwater's filings in this lawsuit suggest
that he is capable of handling the tasks at hand. Indeed, he
articulated the factual bases for his claims in a thorough
manner, and consistently writes clearly and cites to relevant
case law. Further, his willingness to submit motions suggests
that he is enthusiastic about litigating his claims in this
lawsuit and capable of reaching out to the court as needed.
That said, the court agrees that the legal questions in this
case will become more complex because they involve medical
care assessments and decisions, as well as the
interpretations of medical records, including x-rays.
Litigating these subjects will also likely require expert
testimony or at least the experience of a lawyer. As such,