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Evans v. Dickau

United States District Court, E.D. Wisconsin

March 27, 2019

MARKUS EVANS, Plaintiff,
v.
TODD DICKAU, JAMES NOVOTNY, CASSANDRA JOSHUA, KYLE DULAN, MATTHEW PARADISE, THOMAS TRATTIN, SARAH WRONSKI, LEGERS LESTER, MARY SAWCZUK, SGT. LIEBENTHAL, SGT. FERGOT, ABIE DOUGLAS, JOHN NELSON, ROBERT WORZALLA, TUSSELL MEWHORTER, LT. CARLSON, CPT. ELLIOTT, CPT. JONAS, CPT. RAWOLINSKI, KEVIN NYKLEWICA, JOHN CUMMINGS, DONALD STONEFELD, RACHELE KLASSY, BEVERLY FELTEN, BRIDGETTE LINDEMANN, TONYA NAJAM, JOY PARKS, JAMES WILLIAMS, CHRIS LUBUS, TINA WATTS, GREORY BARILLARI, AIMEE TURNER, FLORENTINE SANCHEZ, ONEIDA EDWARDS, CAROLYN EXUM, DANIELLE GAJDOSIK, JIEIRE VANCE, CALVIN SMITH, and KENYON KIRKSEY, Defendants.

          ORDER AND RECOMMENDATION

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE.

         On January 30, 2017, pro se plaintiff Markus Evans filed a complaint in the U.S. District Court for the Western District of Wisconsin under 42 U.S.C. § 1983, alleging that various defendants violated his civil rights while he was housed as a pretrial detainee at Milwaukee County Jail. (ECF No. 1.) The case was subsequently transferred to the U.S. District Court for the Eastern District of Wisconsin. (ECF No. 12.) It was assigned to this court. (ECF No. 15.)

         On January 30, 2018, Evans amended his complaint (ECF No.20), and a couple of weeks later corrected that amended complaint by substituting a name for a Doe defendant (ECF No.21). Upon review of the amended complaint and finding that it failed to state a claim, this court allowed Evans to file a second amended complaint. (ECF No. 22.) Evans took advantage of that opportunity and filed a second amended complaint on May 1, 2018. (ECF No. 23.) The case was then referred to District Judge Lynn Adelman for the limited purpose of screening the complaint because not all parties had had the opportunity to consent to this court's jurisdiction. Judge Adelman screened Evans's second amended complaint on October 11, 2018, and allowed him to proceed on Fourteenth Amendment due process claims against Abie Douglas, Todd Dickau, Kenyon Kirksey, Kevin Nyklewicz, Kyle Cummings, James Novotny, Jieire Vance, and Calvin Smith. (ECF No. 27 at 5-6.) After the defendants were served with that order and the second amended complaint, the case was permanently reassigned to Judge Adelman because not all parties consented to this court's jurisdiction. Judge Adelman subsequently referred the case back to this court for the handling of all pretrial matters. (ECF No. 33.)

         Thereafter, the defendants filed their answer to the second amended complaint (ECF No. 40), and this court entered a scheduling order (ECF No. 42). After a telephonic hearing with Evans regarding the identification of one of the named defendants he had been allowed to proceed against, this court allowed Evans to file a third amended complaint correcting the name of the defendant. (ECF Nos. 45.)

         On February 12, 2019, Evans was granted an extension of time to file his third amended complaint. (ECF No. 47.) On February 21, 2019, Evans filed a motion for leave to file a third amended complaint in which he not only corrects the name of the defendant as the court allowed but also names several new defendants and puts forth new claims. (ECF No. 48.) Evans asserts in his motion that he has only recently been able to secure help from an inmate, who had previously helped him but was moved to a different correctional institution. He says that, after providing the inmate assisting him with his discovery, he realized he had made a mistake in not naming, or naming but not clarifying, the “actions and even intentions” of several defendants. (Id. at 3.)

         The defendants argue that the motion should be denied because Evans has not shown good cause for the amendment given that he previously was allowed to amend his complaint. (ECF No. 51.) They also assert that, even if Evans were allowed to amend his complaint for a third time, it would be futile. His new claims are unrelated to the claim on which he has been allowed to proceed, and, therefore, they violate Federal Rule of Civil Procedure 20.

         Rule 15(a) of the Federal Rules of Civil Procedure states that leave to file an amended complaint "shall be freely given when justice so requires." The Supreme Court has explained the meaning of "freely given" as used in Rule 15(a) by stating:

In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of a movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be freely given.

Foman v. Davis, 371 U.S. 178, 182 (1962).

         Evans's third amended complaint seeks to add new claims and new defendants, some of whom Judge Adelman dismissed previously because Evans had failed to state a claim against them. After providing the additional detail that Evans acknowledges he failed to provide in his second amended complaint, the court finds that these additional claims against the new defendants arise from the same “series of transactions and occurrences” as the claim on which Evans had been allowed to proceed. Fed. R. Civ. Pro 20(a)(1)(A). Because the pro se plaintiff has only recently been able to secure help from another inmate, the court will grant Evans's motion for leave to file a third amended complaint. The court will now screen that complaint in accordance with 28 U.S.C. § 1915A(a).

         In light of Evans's motion, the defendants moved to stay the amended scheduling order deadlines pending the court's decision on Evans's motion. (ECF No. 49.) Because the court is granting Evans's motion, it will also grant the defendants' motion to stay the amended scheduling order.

         Screening the Third Amended Complaint

         The court is required to screen complaints, including amended complaints, brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         To state a cognizable claim under the federal notice pleading system, a plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give a plaintiff's pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         1. Allegations ...


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