United States District Court, E.D. Wisconsin
AND ORDER GRANTING THE PLAINTIFF'S MOTION TO AMEND THE
COMPLAINT (DKT. NO. 20), DENYING AS MOOT THE PLAINTIFF'S
MOTION FOR EXTENSION OF TIME (DKT. NO. 21), DENYING THE
PLAINTIFF'S MOTION FOR APPOINTMENT OF SPECIAL EXPERT
(DKT. NO. 22), DENYING THE PLAINTIFF'S MOTION TO STRIKE
AFFIRMATIVE DEFENSES (DKT. NO. 24) AND MODIFYING SCHEDULING
PAMELA PEPPER United States District Judge.
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendants had violated his civil rights at
the Waupun Correctional Institution (“WCI”). Dkt.
No. 8. The court screened the complaint, and allowed the
plaintiff to proceed on an Eighth Amendment claim that Doctor
Jeffrey Manlove, Nurse Gail Waltz and Sergeant Jodi Tritt
showed deliberate indifference toward his serious medical
need by failing to provide treatment for his broken arm for
almost an entire week. Dkt. No. 10 at 7. Since then, the
plaintiff has filed several motions: (1) a motion to amend
the complaint, dkt. no. 20; (2) a motion for extension of
time, dkt. no. 21; (3) a motion for appointment of special
expert, dkt. no. 22; and (4) a motion to strike affirmative
defenses, dkt. no. 24.
Motion to Amend Complaint (Dkt. No. 20)
plaintiff asks to amend his complaint to include a
supplemental state law medical malpractice claim against
Doctor Manlove and Nurse Waltz. Dkt. No. 20. Although the
plaintiff did not file a proposed amended complaint along
with his motion to amend, the facts in the plaintiff's
original complaint are sufficient to allow him to proceed on
this claim, and the defendants have not objected to the
motion. In the original complaint, the plaintiff alleged that
despite recording his pain as a ten out of ten and hearing
from him that he'd heard a bone snap, Nurse Waltz gave
him a BandAid, and even though she knew he did not have his
own meds or ice, did not give him a medical restriction. Dkt.
No. 1 at 3. He alleged that defendant Manlove did not give
him an x-ray or get him to an outside emergency room. He did
not get a splint, sling or cast, despite his request.
Id. at 4. The court will allow the plaintiff to
proceed with a supplemental state law medical malpractice
claim against defendants Manlove and Waltz.
plaintiff also asks to proceed with a “garden variety
negligence” claim against Manlove, Waltz and Tritt.
Dkt. No. 20 at 2. The plaintiff does not provide any further
information about this “garden variety”
negligence claim- he does not say what these defendant did
that constituted negligence. The court will not allow him to
add such a vague claim to his complaint.
court notes that since the plaintiff filed his motion, the
defendants have filed their motion for summary judgment. Dkt.
No. 27. The court will suspend briefing on the summary
judgment motion, and give Manlove and Waltz a deadline to
answer or otherwise respond to the plaintiff's
supplemental malpractice claim. Once they have answered or
otherwise responded, the court will set new deadlines in
accordance with whatever responsive pleading those defendants
Motion for an Extension of Time (Dkt. No. 21)
motion dated April 2, 2018, the plaintiff asked the court to
extend the deadlines for completing discovery and for filing
summary judgment motions by sixty days. Dkt. No. 21. He
indicated that he had been placed in segregation, had had
trouble getting help from jailhouse lawyers, and that the
institution was “doing away with legal route.”
Id. at 1-2. Two weeks after the court received this
motion, the court received an “addendum” from the
plaintiff, indicating that he no longer needed the extension.
Dkt. No. 23. Given that, the court will deny the
plaintiff's motion as moot.
Motion for Appointment of Special Expert (Dkt. No.
plaintiff asked the court to appoint a medical expert to
prove his state law medical malpractice claim. Dkt. No. 22.
Federal Rule of Evidence 706(a) gives district courts
discretion to appoint a medical expert in civil cases.
Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir.
1997). The fact that a medical expert would help an inmate
prevail on his claims at trial, however, does not require the
court to exercise its authority under Rule 706. See
id. Indeed, a court need not appoint an expert even in
cases where the plaintiff requires an expert to
prove his case. See id.
706(c) provides that any expert appointed by the court is
entitled to reasonable compensation. The court does not have
funds to pay an expert. Either the expert must provide
services free of charge, or some other entity must pay the
stage of the litigation, the plaintiff is not required to
prove that Manlove and Waltz committed malpractice. Once
those defendants file their responsive pleading, the
plaintiff will need to respond to their legal arguments
(either in response to a motion to dismiss or an amended
motion for summary judgment). If the plaintiff's
state-law malpractice claim survives and ends up proceeding
to trial, the plaintiff may renew his request that the court
appoint an expert.
Motion to Strike Affirmative ...