United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS
MOTION TO AMEND COMPLAINT (DKT. NO. 43), DENYING
PLAINTIFF'S MOTION TO AMEND COMPLAINT (DKT. NO. 36) AND
GRANTING PLAINTIFF'S MOTION TO SUBSTITUTE NAMES FOR DOE
PLACEHOLDERS (DKT. NO. 36)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
James Malcolm McDonald is a prisoner representing himself.
The plaintiff filed his original complaint on January 4,
2018. Dkt. No. 1. On March 14, 2018, the court issued an
order screening the complaint and allowing the plaintiff to
proceed on a claim of deliberate indifference to medical
needs against Director Denise, Nurse Samantha, and John/Jane
Doe nurses. Dkt. No. 8. On January 11, 2019, the court
granted the plaintiff's motion to extend the time to
identify the Doe defendants until February 15, 2019. Dkt. No.
35. In that order, the court also denied the plaintiff's
October 1, 2018 motion to amend his complaint, dkt. no. 32,
after determining that amending the complaint would be
futile. Dkt. No. 35.
January 17, 2019, the court received from the plaintiff
another motion to amend the complaint. Dkt. No. 36. The
plaintiff indicated that he wanted to provide the names of
some of the Doe defendants, and to “note the following
statement of claim.” Id. at 2-3. Rather than
attaching to his motion a separate, proposed amended
complaint, the plaintiff just listed in the motion the
changes that he wanted to make to the complaint-a claim
arising out of his incarceration at the Kenosha County Jail
and Detention Center between May 2016 and October 2016
alleging that the defendants ignored his request for a CPAP
machine. Id. at 3. This is the same claim that the
plaintiff proposed to add in his October 1, 2018 motion.
March 14, 2019, the plaintiff filed a new lawsuit that
contains the claims from his January 17 motion. McDonald
v. Kenosha Cty. Health Servs, et al., Case No.
19-cv-391. The same day-March 14, 2019-the court received in
this case a motion, asking the court to
“dismiss” the second amended complaint
(apparently referring to the claim he tried to raise in his
January 17, 2019 motion) and indicating that he'd decided
to pursue that claim in a separate case. Dkt. No. 43.
plaintiff has not filed a second amended complaint. He has
not even filed a first amended complaint. In October 2018, he
asked the court to allow him to amend his complaint, but the
court denied that motion. The January 17, 2019 motion asked
for permission to file an amended complaint, but did not
provide the court with a proposed amended complaint (a
separate document, captioned “Amended Complaint,
” listing all the defendants and all the claims in one
document). So there is no amended complaint for the court to
court will deny the plaintiff's January 17, 2019 motion
to amend the complaint for three reasons. First, as the court
already has noted, the plaintiff did not actually provide the
court with a proposed amended complaint. Second, as the court
told the plaintiff back in January, it would have been futile
for him to amend the complaint in this case in the way he
wanted to. Finally, his motion is moot, because he now has
filed a separate lawsuit pursuing the very claim he wanted to
add to this case.
court notes, however, that in the January 17, 2019 motion,
the plaintiff identified two of the Doe defendants from the
original complaint- Nurse Practitioner R. Swenson and Dr.
Dorrani. Dkt. No. 36 at 1, 3. While the defendants objected
to the motion to amend the complaint, they did not object to
the plaintiff's identification of two of the Doe
defendants. Dkt. No. 37 at 1-2. They surmise that Swenson is
the “Nurse Practitioner” the plaintiff identified
in the complaint. Id. at 2. They note that the
plaintiff did not mention a doctor in the complaint, so they
can't figure out which Doe defendant Durrani might be,
but they understand that the plaintiff is asserting that
Durrani was somehow involved in the events he alleged in the
complaint. Id. In his reply, the plaintiff provided
a few details about the role he alleges that Swenson and
Durrani played in the events he alleged in the complaint.
Dkt. No. 39. The court will treat this part of the January
17, 2019 motion as a motion to substitute names for Doe
placeholders, and will grant that part of the motion.
the court notes that the deadline for completing discovery is
May 13, 2019, and the deadline for filing dispositive motions
is June 14, 2019. Dkt. No. 35. At the end of his motion to
dismiss the January 17, 2019 motion, the plaintiff stated
that he wanted to “make the court aware” that
he'd asked for discovery, that he'd written the
defendants' counsel once or twice asking for certain
information, and that he had not received the information
(which he states he requested in October 2018). Dkt. No. 43
at 2. The court encourages the plaintiff to try to work out
any discovery disputes by writing letters to counsel for the
defendants (and encourages defendants' counsel to respond
to the plaintiff's letters). If, after trying in good
faith to work out discovery disputes with the other side, the
plaintiff does not receive the information he requested, he
may review Fed.R.Civ.P. 37 and Civil Local Rule 37 (which the
court has included with this order) for information on how to
court GRANTS the plaintiff's motion to
dismiss his January 17 motion to amend the complaint. Dkt.
court DENIES the portion of the
plaintiff's January 17, 2019 motion that asks leave to
amend his complaint. Dkt. No. 36.
court GRANTS the portion of the
plaintiff's January 17, 2019 motion that asks to
substitute the names of John/Jane Doe defendants. Dkt. No.
court ORDERS that the clerk's office
shall substitute Nurse Practitioner R. Swenson and Dr.
Dorrani for the John/Jane Doe defendants.
court ORDERS the U.S. Marshals Service to
serve a copy of the complaint, dkt. no. 1, the court's
screening order, dkt. no. 8, and this order on defendants
Swenson and Dorrani under Federal Rule of Civil Procedure 4.
Congress requires the U.S. Marshals Service to charge for
making or attempting such service. 28 U.S.C. §1921(a).
Although Congress requires the court to order service by the
U.S. Marshals Service, it has not made any provision for
either the court or the U.S. Marshals Service to waive these
fees. The current fee for waiver-of-service packages is $8.00
per item mailed. The full fee schedule is provided at 28
C.F.R. §§0.114(a)(2), (a)(3). The U.S. Marshals
Service will give the plaintiff information on how to remit
payment. The court is not involved in collection of the fee.
court ORDERS defendants Swenson and Dorrani
to file a ...