United States District Court, E.D. Wisconsin
TIMOTHY A. POWELL, Plaintiff,
ANGELA THOMPSON, et al., Defendants.
JOSEPH UNITED STATES MAGISTRATE JUDGE
November 19, 2018, the court screened Timothy Powell's
complaint and allowed him to proceed on a deliberate
indifference claim against defendants Angela Thompson and
Dilip Tannan based on Powell's allegations that, despite
his repeated requests, they refused to follow recommendations
that he be sent to the spine and/or neurosurgery clinics for
evaluation. (ECF No. 9.) The court ordered the parties to
complete discovery by July 20, 2019. On July 8, 2019, Powell
filed a motion to compel, and, on July 11, 2019, he filed a
motion to amend his complaint. The defendants responded to
Powell's motion to compel on July 29, 2019, and to his
motion to amend the complaint on July 30, 2019. The court
will deny both motions.
Motion to Amend
Rule of Civil Procedure 15(a)(2) instructs courts to freely
give a plaintiff leave to amend his complaint “when
justice so requires.” Appropriate grounds for denying
leave to amend include “undue delay, bad faith or
dilatory motive on the part of the movant, . . . undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182 (1962).
explains that he would like to amend his complaint, in part,
because he “has found a better complaint format to use,
adding exhibits, legal claims, prayer for relief.” (ECF
No. 38.) Federal Rule of Civil Procedure 8 requires only
“a short and plain statement of the claim showing the
pleader is entitled to relief.” Plaintiffs do not have
to support their allegations with evidence (that comes later,
at summary judgment), nor should they make legal arguments in
their complaint. Accordingly, it is unnecessary for Powell to
amend his complaint to include exhibits or legal claims.
the substance of Powell's proposed amended complaint, he
makes the same core allegations in his proposed amended
complaint that he made in his original complaint-that
Thompson and Dr. Tannan were deliberately indifferent to his
back pain and refused to refer him to a spine specialist as
recommended. However, he also seeks to add L. Doehling as a
defendant, who he asserts was “Dr. Tannan[']s boss
at the time this all started.” (ECF No. 37 at 5.)
Powell includes numerous allegations against her, dating back
to 2015. Many of the allegations have nothing to do with the
referral to a spine specialist for his back pain but focus on
his head and neck pain and special accommodations for items
such as seat cushions and orthopedic shoes. Powell's
allegations imply that Doehling was responsive to
Powell's inquiries (although she did not give him the
answers he wanted) and that she was not the medical
professional making the decisions but rather was merely the
person communicating others' decisions to him.
court will not allow Powell to amend his complaint to add
Doehling as a defendant. First, there is no supervisory
liability under § 1983. The fact that Doehling was Dr.
Tannan's “boss” in an insufficient basis for
liability. Second, Powell knew of these allegations at the
time he filed his complaint in October 2018. Powell's
allegations against Doehling date back to 2015 and continue
through 2017. Powell does not explain why he did not include
these allegations in his original complaint or why he waited
until a week before discovery closed to seek to amend his
complaint to include them. Finally, the allegations against
Doehling are far broader than those alleged against Thompson
and Dr. Tannan in his original complaint. It would unduly
burden the defendants to have to broaden the scope of this
case at this point in the litigation. Thus, the court will
not allow Powell to proceed against her as he proposes.
also seeks to add Nurse Hintz as a defendant. Powell alleges
only that she was Dr. Spring's (the doctor who
recommended that Powell be referred to a spine clinic)
“nursing assistant and was responsible for doing the
refer[r]al to the spine clinic.” (ECF No. 37.) It
appears that Nurse Hintz held, in part, an administrative
role and scheduled the appointments she was told to schedule.
Powell emphasizes repeatedly that it was Thompson and Dr.
Tannan who decided not to send him to the spine clinic.
Nothing suggests that Nurse Hintz had authority to overrule
their decisions. Accordingly, she is not responsible for the
alleged harm Powell suffered. The court will not allow him to
proceed against her as he proposes.
short, the court will deny Powell's motion to amend his
complaint because he unduly delayed seeking leave to amend
the complaint and allowing him to amend his complaint in the
manner he proposes would unduly prejudice the defendants and
would be futile. Powell's original complaint remains the
operative complaint in this case.
Motion to Compel
to Powell's motion to compel (ECF No. 36.), Powell seeks
the production of policies and procedures related to inmate
healthcare as well as inmate complaints filed by other
inmates against the defendants.
not clear to the court how the information Powell seeks will
help him prove his claims. Powell is proceeding on claims
that the defendants violated the Constitution; whether the
defendants violated Department of Corrections policies and
procedures will not create a genuine issue of material fact
regarding whether they violated the Constitution. See
Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003)
(explaining that § 1983 protects plaintiffs from
constitutional violations, not violations of state laws or
departmental regulations). Similarly, Powell is proceeding on
claims that the defendants were deliberately indifferent to
his serious medical condition; how the defendants
allegedly treated other inmates' conditions will
not create a genuine issue of material fact regarding how
they treated his condition.
event, according to the defendants, they produced the
documents Powell seeks shortly after he filed his motion.
Accordingly, the court will deny his motion.
IS THEREFORE ORDERED that Powell's motion to