United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (DKT. NO. 100) AND STRIKING PLAINTIFF'S
PROPOSED SECOND AMENDED COMPLAINT (DKT. NO. 101)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
February 25, 2019, the court granted the defendants'
motion to dismiss unrelated claims from this case and
determined that the plaintiff could not proceed on his
amended complaint because it violated Federal Rules of Civil
Procedure 18 and 20. Dkt. No. 99 at 1. The court ordered that
if the plaintiff wanted to proceed, he needed to file
separate complaints for each of his six claims. Id.
Specifically, the court ordered that by April 12, 2019, the
plaintiff should file a second amended complaint in
this case related to Claim 1 from his
amended complaint and that he should file separate
new complaints for each of Claims 2 through 6.
Id. at 11-14. The plaintiff has filed a motion for
review, dkt. no. 100, and a proposed second amended
complaint, dkt. no. 101.
motion for review, the plaintiff states that he believes the
court erred when it decided that his claims were misjoined.
Dkt. No. 100 at 1. The plaintiff points to a complaint that
he filed on December 5, 2016 that he says would have
corrected the issue of misjoinder, and added new claims and
defendants along with the names of John and Jane Does.
Id. According to the plaintiff, in the motion to
amend that accompanied the amended complaint he supplied
“a common [sic] he set forth to name the Correctional
Officers and the Supervisor which instructed and ordered the
detainment in the segregation area of the jail. To include
‘several' motion claims, which connected the entire
set of events through the direction of the superiors, David
Clarke, Nancy Evans, and Milwaukee County.”
Id. The plaintiff says that he filed another motion
to amend on October 8, 2017, and that the court ruled that it
would address the plaintiff's request to amend once it
resolved the issue of exhaustion of administrative remedies.
Id. at 1-2. The plaintiff states that after
resolving the exhaustion issue in his favor, instead of
considering his requests to amend the complaint, it
“ruled 20” and ordered him to file six separate
complaints. Id. at 2. He states that the court did
not allow him to correct the complaint before the decision.
Id. The plaintiff points to the original screening
order, which allowed the claims that arose at the Milwaukee
County Jail to proceed in the same complaint. Id.
plaintiff states that the claims presented in this case
“is and was part of the ‘conditions' and
‘treatment' the plaintiff had experienced at the
hands of the Defendants, while held at MCCJF.”
Id. at 3. He contends that the court's order to
separate the claims “appears to separate the rights of
the pro se and indigent plaintiff at this point.”
Id. According to the plaintiff, the
“separation comes as to, ‘the court not allowing
him the same rights of a none [sic] confined, knowledgeable
person of the Law, who is not indigent (In form pauperis),
with counsel, not convicted of a sex crime, suing the State
of Wisconsin or its agents or entities of Governments in said
state.” Id. The plaintiff asks the court to
review the record and its ruling to correct the error and
ensure that he is treated equally and justly as the law and
Constitution demand. Id. at 4.
plaintiff also has filed a proposed second amended complaint.
Dkt. No. 101. In the accompanying cover letter, the plaintiff
states that “the issues of relevancy and occurrence has
been corrected to add the issue of ‘Misjoinder'
resolved in the new complaint.” Dkt. No. 101-1. The
proposed second amended complaint reiterates the
plaintiff's six claims.
Rule of Civil Procedure 54(b) allows any order adjudicating
fewer than all the claims to be revised at any time before
the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties. Courts judge
motions to reconsider (or to revise) an order under Rule
54(b) by largely the same standards as motions to alter or
amend a judgment under Rule 59(e): “to correct manifest
errors of law or fact or to present newly discovered
evidence.” Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting
Keene Corp. v. Int'l Fid. Ins. Co., 561 F.Supp.
656, 665-66 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th
Cir. 1984) (citation and footnote omitted)), amended by, 835
F.2d 710 (7th Cir. 1987); compare Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir.1996) (providing nearly
identical standard for motion under Rule 59(e)).
plaintiff has not shown that the court's February 25,
2019 order constituted a manifest error of law or fact.
Contrary to the plaintiffs assertions, the plaintiffs
proposed second amended complaint contains separate claims
that belong in separate cases. The fact that the claims arose
at the Milwaukee County Jail does not mean that the belong in
the same case. The court acknowledges that its 2016 screening
order allowed the plaintiff to proceed on the claims; it
acknowledged that fact in its February 25, 2019 order, when
it conceded that it should not have permitted the claims to
proceed in the same case. Dkt. No. 100 at 5-10. Rather than
just dismissing the case, the court has given the plaintiff
the opportunity to file his claims correctly.
court will deny the plaintiffs motion for review and it will
strike the plaintiffs proposed second amended complaint. The
plaintiff still has the opportunity to file a single, second
amended complaint, addressing the facts surrounding Claim 1,
by April 12, 2019.
court DENIES the plaintiffs motion for
reconsideration. Dkt. No. 100
court STRIKES the plaintiffs proposed second