United States District Court, E.D. Wisconsin
SCOTT E. SPATES, Plaintiff,
MARY SAUVEY and MS. KAPHINGST, Defendants.
ORDER REQUIRING SERVICE OF AMENDED COMPLAINT ON
DEFENDANTS AND REQUIRING THEM TO ANSWER OR OTHERWISE
HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE
case is almost three years old, and due to various twists and
turns, it has not progressed very far. On January 3, 2019,
the court received an order from the Seventh Circuit Court of
Appeals, indicating that the parties had agreed, based on new
Seventh Circuit case law, that this court's dismissal of
the case for failure to exhaust remedies should be vacated,
and the case remanded to this court for further
proceedings. This order provides next steps for the
litigation following that remand.
plaintiff's original complaint named only one
defendant-Mary Sauvey. Dkt. No. 1. The court screened that
complaint, allowed the plaintiff to proceed on a deliberate
indifference claim against Sauvey, had the complaint
electronically served on her and required her to file a
response. Dkt. No. 15. Sauvey timely filed an answer. Dkt.
No. 21. The court then issued a scheduling order that set
deadlines for the plaintiff and the defendant to exchange
discovery and to file dispositive motions. Dkt. No. 26.
two weeks later, the plaintiff filed a motion asking the
court to allow him to amend the complaint. Dkt. No. 31. He
had identified two “John Doe” witnesses, and
wanted to include them as defendants. Those two witnesses
were Lt. Van Gheems and Sgt. Kaphingst. Id. at 1-2.
The court granted that motion, and although the plaintiff had
attached a proposed amended complaint to his motion for leave
to amend, the court ordered him to file another amended
complaint (because the proposed amendment did not contain any
facts or allegations against the two new defendants). Dkt.
No. 33. The court ordered the plaintiff to file the amended
complaint by September 30, 2016. Id. at 2.
that deadline arrived, however, defendant Sauvey filed a
motion asking the court to stay the discovery and dispositive
motions deadlines, because she planned to file a motion
alleging that the court should dismiss the case for the
plaintiff's failure to exhaust his administrative
remedies. Dkt. No. 34. The court granted that request, and
ordered Sauvey to file her exhaustion motion by October 7,
2016 (about a week after the plaintiff's amended
complaint was due). Dkt. No. 36.
plaintiff filed his amended complaint two weeks earlier than
the date the court had ordered; the amended complaint added
factual allegations against Van Gheems and Kaphingst. Dkt.
No. 37. Three weeks later, Sauvey filed her summary judgment
motion, asking the court to dismiss her as a defendant based
on her claim that the plaintiff had not exhausted his
administrative remedies. Dkt. No. 39. Somehow, in the process
of the parties briefing that summary judgment motion, the
court neglected to screen the plaintiff's amended
complaint, or to realize that the new defendants would be in
a different procedural posture than Sauvey.
court granted Sauvey's motion for summary judgment. Dkt.
No. 54. That order made no reference to the amended
complaint, or to Kaphingst or Van Gheems, but it purported to
dismiss the entire case. Id. The plaintiff timely
appealed that order. Dkt. No. 56.
March 2018, the Seventh Circuit Court of Appeals dismissed
the plaintiff's appeal. Dkt. No. 72. The court then
received a motion from the plaintiff, explaining that the
appellate court had dismissed his appeal because this
court's order of dismissal was not final-it had not
disposed of all the claims against all of
the defendants. Dkt. No. 74. The plaintiff indicated that he
never got an order telling him that the court had allowed him
to add Van Gheems and Kaphingst, and he wondered whether
they'd been served and whether they had lawyers.
plaintiff had every reason to be confused-the court had not
screened the plaintiff's amended complaint, and had not
decided whether he could add Van Gheems and Kaphingst. The
plaintiff's motion prompted the court to do what it
should have done earlier-it screened the amended complaint.
Dkt. No. 75. The court concluded that the plaintiff had
not stated a claim against Van Gheems, and dismissed
Van Gheems as a defendant. Id. at 10. It concluded,
however, that he had stated sufficient facts to
allow him to proceed on a deliberate indifference claim
against Kaphingst. Id. Despite this, the court
found, as it had in the case of Sauvey, that the plaintiff
had not exhausted his administrative remedies as to
Kaphingst, and dismissed the complaint against Kaphingst.
Id. at 10-14.
plaintiff timely appealed the dismissal. Dkt. No. 77. It is
this appeal that the Seventh Circuit decided on January 3,
2019. Based on the new Seventh Circuit decision regarding
exhaustion in situations like the plaintiff's, the
parties agreed that this court's order dismissing the
case as to Sauvey and Kaphingst should be summarily reversed
and remanded. In other words, under Seventh Circuit law,
failure to exhaust was not a basis for this court to dismiss
the plaintiff's case.
does that leave us? The court never ordered the
plaintiff's amended complaint to be served on Kaphingst,
because it dismissed on exhaustion grounds. So the court
needs to have the amended complaint formally served on
Kaphingst (as well as on Sauvey, although having made an
appearance, she likely is aware of the amended complaint).
Both Sauvey and Kaphingst must have the opportunity to answer
or otherwise respond to the amended complaint. Once they have
answered, the parties need the opportunity to conduct
discovery. Kaphingst has not had the opportunity to conduct
any discovery. As for the plaintiff and Sauvey, the court
originally gave them three months to conduct discovery
(scheduling order at dkt. no. 26), but the plaintiff asked to
amend the complaint only two weeks into that three-month
process, and Sauvey asked to stay the discovery deadline only
a month after the court issued the scheduling order. The
court suspects they have not conducted much discovery.
court hopes that, in ordering service of the amended
complaint on Sauvey and Kaphingst, and ordering them to
respond, it can get this case on track to move expeditiously.
court ORDERS that, under the informal
service agreement between the Wisconsin Department of Justice
and this court, copies of the plaintiff's amended
complaint, dkt. no. 37, and this order are being
electronically sent to the Wisconsin Department of Justice
for service on defendants Sauvey and Kaphingst. Defendants
Sauvey and Kaphingst shall file a responsive pleading to the
amended complaint within sixty (60) days of
receiving electronic notice of this order.
court ORDERS that the plaintiff shall submit