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Stechauner v. Kemper

United States District Court, W.D. Wisconsin

July 30, 2018

MATTHEW C. STECHAUNER, Plaintiff,
v.
PAUL KEMPER, LAVAIL JAMISON, DANA BROWN, JOHN DOES, and JANE DOES, Defendants.[1] MATTHEW C. STECHAUNER, Plaintiff,
v.
PATRICK MURPHY, PHILIP WHEATLEY, TROY SHEIDE, GARY NEAU, and DORRIE HANSEN, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff Matthew C. Stechauner is proceeding in both of these cases on claims related to his conditions of confinement at the Oshkosh Correctional Institution and the Racine Correctional Institution. He has filed five motions, four of which relate solely to case no. 17-cv-582: (1) a motion to compel discovery, Dkt. 19; (2) a motion for an extension of time to file an amended complaint, Dkt. 22; (3) a motion for leave to file an amended complaint, Dkt. 30; and (4) a “motion for default judgment and contempt of court, ” Dkt. 32.[2] Stechauner also filed a motion for assistance in recruiting counsel, which applies to both cases. Dkt. 23 (in case no. 17-cv-582) and Dkt. 59 (in case no. 17-cv-221).

         For the reasons explained below, I will grant Stechauner's motion for an extension of time and his motion for leave to amend his complaint to add Kim Einwalter as a defendant. I will deny all other motions.

         ANALYSIS

         A. Motion to compel, motion for an extension of time to amend complaint, and motion for leave to amend complaint

         In the screening order in case no. 17-cv-582, I allowed Stechauner to proceed on a claim against an unnamed female nurse who allegedly refused to examine Stechauner when he was experiencing difficulty breathing, chest pain, and a fast heartbeat. Dkt. 11. Stechauner's motion to compel, motion for an extension of time to amend complaint, and motion for leave to amend complaint are all related to that claim.

         In his motion to compel, Stechauner says that defendants are refusing to disclose the name of the Jane Doe nurse. In his motion for an extension of time, which he filed at the same time that he filed his motion to compel, he asks for more time to amend his complaint to identify the Jane Doe because the defendants haven't identified her yet. And in the motion for leave to amend, which he filed three weeks later, he asks to replace the Jane Doe defendant with Kim Einwalter, which is the name defendants provided Stechauner on March 28, 2018, Dkt. 18, two weeks before he filed his motion to compel.

         Now that Stechauner has identified the Jane Doe, his motion to compel is moot. I will grant his motion for an extension of time and his motion to amend his complaint to add Einwalter as a defendant. Although Stechauner originally included more than one Doe defendant in his complaint, he has not identified anyone other than Einwalter in his supplement and he does not allege that there are any other Doe defendants who need to be named. Accordingly, I will dismiss the remaining Doe defendants.

         B. Motion for default judgment

         Stechauner seeks a default judgment against Einwalter because she hasn't answered the complaint. He cites a statement in the preliminary pretrial conference order in which Magistrate Judge Stephen Crocker set a three-week deadline for a Doe defendant to file an answer “following receipt of the amended complaint.” Dkt. 16. Stechnauer says that Einwalter failed to file an answer within three weeks after he filed his supplement.

         I will deny Stechauner's motion for two reasons. First, as Stechaunder himself recognized, he needed leave to amend his complaint because he missed his deadline. A defendant's deadline for answering an amended complaint does not begin to run before the court approves the amendment.

         Second, a more fundamental problem is that Einwalter has not yet been served with the complaint. The Wisconsin Department of Justice declined to accept service on behalf of Einwalter because she is not a state employee, Dkt. 17, which means that Einwalter needs to be served in accordance with Rule 4 of the Federal Rules of Civil Procedure.

         Stechauner says that he mailed his complaint to the work address provided by defendants, but Stechauner's efforts do not satisfy the requirements of Rule 4. As an initial matter, Stechauner acknowledges that he received a letter from the employer, informing him that Einwalter no longer worked there. And even if Einwalter received the complaint, Rule 4 requires personal service of both the complaint and the summons issued by the court, unless the defendant waives personal service. Without a waiver, simply mailing the complaint is not sufficient.

         So Stechauner is not entitled to a default judgment. But he is not required to serve the complaint on his own. Because he is indigent, the U.S. Marshals Service is required to make reasonable efforts to personally serve the complaint on ...


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