United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is presently incarcerated at the Dodge Correctional
Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that he was provided
constitutionally inadequate medical care for a finger injury
while he was housed at the Milwaukee County Jail (the
“Jail”). (Docket #1). He filed a first amended
complaint on February 28, 2018, which the Court screened on
March 5, 2018. (Docket #18, #20). Upon screening the amended
complaint, the Court permitted Plaintiff to proceed on a
claim of deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment, against two
medical personnel at the Jail, Jackie Pitterle
(“Pitterle”) and Mercy Mahaga
(“Mahaga”), as well as a “mobile x-ray
employee, ” identified only as John or Jane Doe.
(Docket #20 at 2). This Doe defendant has not yet been
16, 2018, Plaintiff submitted a motion to join two additional
defendants: Dr. Yasser Mir (“Mir”) and Dr. Steven
Picerne (“Picerne”), radiologists who interpreted
x-rays of Plaintiff's finger injury. (Docket #35).
Plaintiff apparently believes that Mir and Picerne misread
the x-rays and misdiagnosed his injury. The Court denied his
motion, noting that parties must be joined in an amended
complaint which contains all of Plaintiff's allegations
against all defendants. (Docket #37 at 1-2). Parties and
factual allegations cannot be added to this suit in piecemeal
fashion. Id. To give him time to craft a proper
amended complaint joining these new individuals, the Court
granted Plaintiff until June 8, 2018, to file an amended
complaint without the Court's leave. Id. at 2.
before the Court is Plaintiff's second amended complaint,
filed on June 1, 2018. (Docket #38). As with the prior
complaints, the Court must screen the second amended
complaint pursuant to 28 U.S.C. § 1915A. The same legal
principles that governed the earlier screenings apply here.
See (Docket #8 at 1-3).
second amended complaint must be rejected, as it suffers from
numerous deficiencies borne of his misunderstanding of the
applicable procedural rules. First, he names Pitterle,
Mahaga, Mir, and Picerne in the caption of the complaint, but
his factual allegations only touch on Mir and Picerne's
allegedly incorrect x-ray readings. (Docket #38 at 1-2). The
second amended complaint says nothing at all about
Plaintiff's finger injury or the care provided (or not
provided) by Mahaga, Pitterle, or the mobile x-ray employee.
Those matters are, however, detailed in the first amended
complaint. See (Docket #18, #20).
recent order, the Court very clearly warned Plaintiff that
his second amended complaint had to be complete in itself,
without reference to any prior complaint. (Docket #37 at 2).
In other words, Plaintiff needed to include all of his
allegations against Pitterle, Mahaga, Mir, Picerne, and the
mobile x-ray employee in one document. He did not do so.
the filing of an amended complaint automatically supersedes
any prior complaint. See Duda v. Bd. of Educ. of Franklin
Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th
Cir. 1998). In this case, that would mean that Mahaga,
Pitterle, and the mobile x-ray employee would stand
dismissed, as there are no factual allegations against them
in the second amended complaint. With those defendants out of
the case, the Court would have to assess whether claims
against Mir and Picerne could proceed. But in prisoner
litigation, the Court decides whether an amended complaint
will become the operative pleading through its obligation to
screen complaints under Section 1915A. In this instance, the
Court exercises that discretion to reject the second amended
complaint and retain the first amended complaint as the
operative complaint in this action.
Court reaches this decision for several reasons. First, it is
obvious that Plaintiff mistakenly believed that he simply
needed to submit his allegations against Mir and Picerne in a
document captioned “complaint, ” without
restating his allegations against the other defendants. This
is not correct, as the Court has explained. Second,
Plaintiff's allegations against Mir and Picerne are
undoubtedly without merit. Misdiagnosing Plaintiff's
injury does not rise to the level of deliberate indifference
to his serious medical needs. See Zackery v.
Mesrobian, 299 Fed.Appx. 598, 601 (7th Cir. 2008);
Williams v. Guzman, 346 Fed.Appx. 102, 106 (7th Cir.
2009). Instead, it is at worst medical negligence, something
for which the Constitution does not provide a remedy.
Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.
1997); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir.
1996) (“Mere negligence or even gross negligence does
not constitute deliberate
indifference.”). Thus, if the Court were to accept the
second amended complaint, it would have to immediately
dismiss this action in its entirety. That cannot be the
result Plaintiff sought.
only sensible explanation for Plaintiff's second amended
complaint is that it is an aberration, the consequences of
which Plaintiff did not intend to face. Out of consideration
for his pro se status, the Court will not accept the
second amended complaint. It will instead retain the first
amended complaint as the operative complaint in this action.
No. further amended complaints will be permitted without
leave of the Court.
IT IS ORDERED that Plaintiff's second
amended complaint (Docket #38) is REJECTED
pursuant to 28 U.S.C. § 1915A;
IS FURTHER ORDERED that Plaintiff's first
amended complaint (Docket #18) shall remain the operative
complaint in this action; and
IS FURTHER ORDERED that a copy of this Order be sent
to the officer in charge of the agency where Plaintiff is