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Jones v. Litscher

United States District Court, E.D. Wisconsin

March 20, 2018

JUMAR K. JONES, Plaintiff,
v.
JON LITSCHER, JIM SCHWOCHERT, SCOTT ECKSTEIN, JOHN KIND, CAPTAIN BAUMANN, ALAN DEGROOT, MICHELLE HAESE, SGT. FRANCIOS, SGT. ROSE, SGT. SPOERL, SPT. PALTZ, and MICHAEL DONOVAN, Defendants.

         DECISION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MEMORANDUM OF LAW FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 2), GRANTING PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 7), DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO ADD DEFENDANTS (DKT. NO. 12), DENYING PLAINTIFF'S STATUS MOTION (DKT. NO. 14) SCREENING PLAINTIFF'S AMENDED COMPLAINT (DKT. NO. 13), AND REQUIRING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT

          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. He also has filed several motions. The court will address the motions in this order, as well as screening the plaintiff's amended complaint.

         I. Memorandum of Law for Temporary Restraining Order (Dkt. No. 2)

         The same day he filed his complaint, the plaintiff filed a document entitled “Memorandum of Law for Temporary Restraining Order.” Dkt. No. 2. The court construes this document as a motion, asking the court to issue a temporary restraining order.

         The plaintiff correctly states the standard that the court considers in deciding whether to grant injunctive relief, and as he points out, the first standard the court has to consider is whether the plaintiff has a reasonable likelihood of success on the merits of his lawsuit. Dkt. No. 2 at 1 (citing Aircraft Owners & Pilots Ass'n v. Hinson, 102 F.3d 1421, 1424-24 (7th Cir. 1996)). For reasons that the court will explain below, the court is not in a position to determine whether the plaintiff has a reasonable likelihood of success on the merits of his case. Further, the defendants have not been served with the plaintiff's motion (or his complaint, as the court explains below), and have not had an opportunity to respond. The court will deny the motion without prejudice. The plaintiff may re-file his motion if, and when, the court issues an order allowing him to proceed on particular claims.

         II. Motion For Leave To Proceed Without Prepaying the Filing Fee (Dkt. No. 7)

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         On May 25, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $37.45. Dkt. No. 6. The plaintiff paid that fee on June 5, 2017. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee. He must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         III. Motion to Add Defendants (Dkt. No. 12) and Proposed Amended Complaint (Dkt. No. 13)

         On July 28, 2017, the plaintiff filed a motion asking the court to allow him to add two defendants-Nys and Dillenberg. Dkt. No. 12. About four months later, the plaintiff filed a proposed amended complaint. Dkt. No. 13. He did not, however, name Nys or Dillenberg in the amended complaint.

         In certain circumstances, Fed.R.Civ.P. 15 allows a plaintiff to amend his complaint once without the court's permission. The court will treat the amended complaint at dkt. no. 13 as the operative complaint (which means that it will replace the original complaint).

         The court will deny without prejudice the plaintiff's motion to add Nys and Dillenberg as defendants. Dkt. No. 12. It is not clear to the court why the plaintiff filed the motion asking to add those defendants, but did not include them in the amended complaint he filed a month later. As the court explains below, it is going to require the plaintiff to file a second amended complaint. If the claims the plaintiff believes he has against Nys and Dillenberg arise out of the same transaction, occurrence or series of transactions or occurrences as any other claims he includes in that second amended complaint, he may include them in that complaint.

         IV. Status Motion (Dkt. No. 14)

         On February 22, 2018-about seven months after the plaintiff filed his request to add defendants-the plaintiff filed a document that he called a “status motion.” Dkt. No. 14. He asked the court to enter an order requiring the defendants to answer the complaint, and “to move forward ...


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