United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR CLARITY
(DKT. NO. 114)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff has filed a motion for clarity. Dkt. No. 114. He
seeks clarity on several issues, and the court address his
February 25, 2019, the court granted the defendants'
motion to dismiss unrelated claims and determined that the
plaintiff could not proceed on his amended complaint, dkt.
no. 10, 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 would have to file separate
complaints for each of his six claims. Id. The court
ordered that by April 12, 2019, the plaintiff must file a
second amended complaint in this case
related to Claim 1 from the amended complaint, and that he
should file separate new complaints for each
of Claims 2 through 6 of the amended complaint. Id.
at 11-14. The court also ordered that the plaintiff would not
be able to proceed on any new claims that he did not raise in
Claims 1-6, as described in the court's order.
Id. at 14. The court advised the plaintiff that he
would not have to pay a filing fee for any new complaint he
filed regarding Claims 2-6, and that the court would not
apply 28 U.S.C. §1915(g) to any new cases he filed
regarding Claims 2-6. Dkt. No. 99 at 9, 10 n.2.
Plaintiff's Motion for Clarity, dkt. no. 114
motion for clarity, the plaintiff first states that the court
has not ruled on his supplemental brief in support of
reconsideration (dkt. no. 107). Dkt. No. 114 at 1. The court
notes that it rules on motions; it doesn't rule on
briefs. Briefs provide the legal basis for the court to rule
on motions. That technicality aside, the supplemental brief
to which the plaintiff refers was filed in support of his
motion for reconsideration, which he filed on March
4, 2019. Dkt. No. 100. He filed the supplemental brief on
June 17, 2019, over three months after he filed his motion to
reconsider. Dkt. No. 107. But on March 26, 2019, the court
denied the plaintiff's motion for reconsideration of the
court's order granting defendants' motion to dismiss
unrelated claims. Dkt. No. 103. By the time the plaintiff
filed his supplemental brief, the court already had ruled on
the motion to reconsider-it had ruled almost three months
earlier. The plaintiff filed his supplemental brief too late.
The court has resolved the motion to reconsider.
the plaintiff asks whether the court ruled in accordance to
law on the issue of severance. Dkt. No. 114 at 1. He states
that the Court of Appeals for the Seventh Circuit directed
that when a federal civil case is severed, the court should
not dismiss the second claim but, rather, the clerk of court
should create multiple docket numbers and the severed claims
proceed as if the cases had been filed separately.
Id. (citing UWM Student Assoc. v. Lovell,
888 F.3d 854, 864 (7th Cir. 2018)). The plaintiff points to
one of the options the Seventh Circuit identified,
but there is another-dismissal without prejudice, which is
the option this court used in the plaintiff's case.
See UWM Student Assoc., 888 F.3d at 864 (“The
proper remedy for violations of Rules 18 and 20 is severance
or dismissal without prejudice, not dismissal with
prejudice.”) (emphasis added). The court ruled properly
when it dismissed Claims 2-6 without prejudice.
the plaintiff asks why the defendants are being allowed to
answer the complaint a second time, contrary to Fed.R.Civ.P.
12(a)(1)(A)(i), since they already answered the amended
complaint on June 30, 2016. Dkt. No. 114 at 2. The answer is
that the defendants are not answering the complaint a second
time. Defendant Hannah, the only named defendant, was not
listed in the caption of the plaintiff's amended
complaint (dkt. no. 10 at 2), and as a result, defendant
Hannah was not served with the amended complaint and did not
answer have the opportunity to answer it. The plaintiff
subsequently identified CO Hannah as one of the Doe
defendants, and the court added CO Hannah as a defendant at
that time. Dkt. No. 48 at 10. Hannah accepted service on July
9, 2019, dkt. no. 111, and it is Hannah-and only Hannah-who
recently field an answer, dkt. no. 112.
the plaintiff asks whether the court is reopening and/or
reviewing its ruling as to exhaustion of administrative
remedies. Dkt. No. 114 at 3. On March 30, 2018, the court
denied the defendants' amended motion to dismiss for
failure to exhaust administrative remedies. Dkt. No. 75 at
14-17. The court found that the parties disputed whether the
plaintiff had exhausted available administrative remedies
because they did not agree on whether the plaintiff knew
about the jail's grievance procedure, and when.
Id. at 14. The court found that the parties also
disputed whether the plaintiff had attempted to exhaust the
remedies that were available to him regarding Claim 1 (and
his other claims). Id. at 15. The deadline for the
plaintiff to file an amended complaint identifying Doe
defendants is November 15, 2019. Dkt. No. 113. Once any Doe
defendants have been identified and served, and filed a
responsive pleading, the court will allow those defendants an
opportunity to indicate whether they want an evidentiary
hearing on the exhaustion issue or to notify the court that
they will waive the exhaustion affirmative defense. So the
answer to the plaintiff's question is that the court
hasn't issue a final ruling on the exhaustion issue; it
will do so once all the defendants have answered the
complaint, and only if they indicate that they want to pursue
the exhaustion defense.
the plaintiff asks why the court has not exercised its
discretion to join his claims to preserve scarce judicial
resources. Dkt. No. 114 at 3. It is true that it is important
for the court to preserve judicial resources, but that
isn't a reason for the court to allow a plaintiff to join
unrelated claims and unrelated defendants. Joining unrelated
claims and defendants prejudices the defendants, confuses
juries (when the cases get that far), and puts an additional
burden on the courts to try to figure out which claims and
which evidence relates to which defendants.
the plaintiff asks whether this court should still be
presiding over this case after the grievances and writ of
mandamus he filed in the Seventh Circuit. Dkt. No. 114 at. 4.
He states that he has questioned the court's
“racial views” and “integrity to administer
the law, ” yet the court refuses to “sever”
itself as required by 28 U.S.C. §455(a). Dkt. No. 114 at
4. The plaintiff states that the court has refused to
investigate the validity of his being held at the Milwaukee
County Criminal Justice Facility. Id. at 5. He also
states that any reasonable person would assume bias.
Id. The court has considered the plaintiffs
arguments in support of recusal, and has denied motion for
recusal under 28 U.S.C. §455(a). Dkt. No. 48 at 4-5. The
court explained in that order why it was doing so. Nothing
has changed; the plaintiff has not provided a sufficient
reason to show that the court should be disqualified under 28
U.S.C. §455(a). See Liteky v. United States,
510 U.S. 540, 555-56 (1994).
court GRANTS the plaintiffs motion for