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Christopher v. Kostohryz

United States District Court, W.D. Wisconsin

October 22, 2019




         Pro se plaintiff Adam Christopher is proceeding on claims that defendants Georgia Kostohryz and Lin Kimpel, nurses at Jackson Correctional Institution, and Dr. Lily Liu, a physician at the prison, violated his rights under the Eighth Amendment and state law by failing to provide him adequate medical treatment for his back pain, fatigue and gastrointestinal problems. The Wisconsin Department of Justice is representing Kostohryz, and Liu and Kimpel are represented by private counsel. There are several motions before the court.

         Plaintiff has filed a motion for default judgment against Liu, dkt. #44, a motion for costs, dkt. #62, a motion for leave to file a third amended complaint, dkt. #73, a motion for leave to file a sur-reply brief, dkt. #78, and two motions to strike, dkt. ##86, 88. Both Kostohryz and Liu have filed motions for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies. Dkt. ##32, 35. Defendant Kimpel has filed a motion for a new pretrial conference, dkt. #81, and a motion to strike a motion that plaintiff filed, dkt. #89. I resolve the motions as discussed below.


         A. Plaintiff's Motion for Default Judgment against defendant Liu

         Plaintiff contends that the court should enter default judgment against defendant Liu because Liu refused to participate in mediation of plaintiff's medical malpractice claim against her, in violation of Wis.Stat. ch. 655. In particular, when plaintiff filed a mediation request against Liu, Liu responded, by counsel from the Department of Justice, that Liu was a state employee who was exempt from ch. 655. However, in the context of this litigation, Liu has stated that she is not a state employee, and she is being represented by private counsel.

         I will deny plaintiff's motion. Default judgment is “appropriate only when a party willfully disregards pending litigation.” Sun v. Board of Trustees of Univ. of Illinois, 473 F.3d 799, 811 (7th Cir. 2007). In this instance, Liu has not ignored plaintiff's claims against her. She has filed an answer, dkt. #21, a motion for summary judgment, dkt. #35, and has responded to other motions filed by plaintiff. Liu's refusal to participate in mediation might preclude her from arguing, as a defense, that plaintiff failed to follow the procedural requirements of Wis.Stat. ch. 655 in bringing his medical malpractice claim against her. However, plaintiff has not shown that Liu's refusal to participate in mediation is a valid basis for entering default judgment against Liu. Plaintiff filed a motion to strike Liu's brief in opposition to his motion for default on the ground that Liu failed to send a copy of the brief to plaintiff. Liu says that she mailed a copy to plaintiff, but also states that she sent him another copy after he filed the motion to strike. I will deny plaintiff's motion to strike as unnecessary. Regardless whether plaintiff received of copy of Liu's opposition brief in a timely manner, plaintiff has not shown that default judgment should be entered against Liu.

         B. Plaintiff's Motion for Costs on Motion to Compel

         In a previous order, I denied as moot plaintiff's motion to compel defendant Kostohryz to provide him a complete copy of his medical records. Dkt. #42.[1] Kostohryz's counsel explained that she had provided more than 581 pages of plaintiff's medical records to him and had provided him all of the medical records to which Kostohryz has access. Now plaintiff contends that he is entitled to the costs he incurred in filing the motion to compel because defendant waited until after he filed to motion to respond to his discovery requests.

         I will deny plaintiff's request for costs. Plaintiff requested extensive records from Kostohryz, even though plaintiff could have accessed his medical records at the prison. Kostohryz provided the records to plaintiff, which is why I denied plaintiff's motion to compel. Any delay by Kostohryz was minimal, and plaintiff has not shown that he was prejudiced by it. Therefore, I decline to award him any costs.

         C. Plaintiff's Motion to File a Third Amended Complaint

         Plaintiff also seeks to amend his complaint a third time to add a claim against previously-dismissed defendant Debra Tidquist, a nurse practitioner, based on allegations that she changed the dosage for his psyllium fiber prescription, despite knowing that the psyllium had been somewhat helpful to him. (Plaintiff does not say when this occurred.) He also seeks to add claims against Melinda Derus (unit supervisor), the Special Needs Committee and members of the special needs committee: T. Hentz (nurse), D. Huber (nurse), A. Ladwig (nurse) and John Doe (security staffer). Dkt. #71. Plaintiff contends that in January 2019, these proposed defendants denied his request for a lower bunk, a thick mattress, a heating pad, an extra pillow and a second TENS unit, in violation of the Eighth Amendment and state law.

         I will deny plaintiff's request to file an amended complaint to add these claims and defendants. His allegation that Tidquist altered, but did not cancel, the dosage of his psyllium prescription suggests that Tidquist was using her medical judgment in deciding the most appropriate dose of a medication that plaintiff was using long-term. His allegations do not suggest that she was deliberately indifferent or negligent.

         As for his proposed claims against the members of the Special Needs Committee, his claims are not sufficiently related to the other claims on which he is proceeding in this case. Plaintiff filed this case in November 2018, raising claims regarding medical treatment by medical staff. His new allegations concern a decision made by the Special Needs Committee in January 2019, after he filed this lawsuit, denying special accommodations for his back pain. None of the current medical defendants were involved in the Special Needs Committee's decision and none of the proposed new defendants are medical staff. Therefore, I conclude that plaintiff's new allegations and claims are not sufficiently related to his pending claims to justify adding them at this stage of the case. Moreover, complaints cannot be a moving target, constantly changing throughout the lawsuit. The court and ...

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