United States District Court, E.D. Wisconsin
GRANTING DEFENDANT'S MOTION TO DISMISS PARTY (DKT. NO.
118) AND DISMISSING DEFENDANT MICHAEL HANNAH, GRANTING
DEFENDANT'S MOTION TO ADD PARTY (DKT. NO. 118) AND ADDING
MARLON HANNAH AS A DEFENDANT; DENYING AS MOOT PLAINTIFF'S
MOTION FOR RECUSAL/MOTION TO CLARIFY (DKT. NO. 121); DENYING
PLAINTIFF'S MOTION TO COMPEL DISCOVERY (DKT. NO. 122);
DENYING PLAINTIFF'S MOTION TO ADD PARTIES (DKT. NO. 124);
GRANTING DEFENDANT'S MOTION TO FILE AMENDED ANSWER (DKT.
NO. 125); DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT (DKT. NO. 127) AND GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO STAY PROCEEDINGS
AND AMEND SCHEDULING ORDER (DKT. NO. 132)
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE
11, 2019, the court struck the plaintiff's second amended
complaint and allowed the plaintiff to proceed on Claim 1
from his June 8, 2016 amended complaint (dkt. no. 10). Dkt.
No. 106 at 1, 4. Specifically, the court allowed the
plaintiff to proceed on Claim 1-#5 at page 5, his Fourteenth
Amendment excessive force and Eighth Amendment failure to
provide medical care claims against CO Hannah and the three
John Doe COs, based on the February 6, 2013 incident. Dkt.
No. 106 at 4. Defendant Michael Hannah answered the amended
complaint on August 12, 2019, dkt. no. 112, and three days
later the court issued a scheduling order, dkt. no. 113. That
order required the parties to complete discovery by December
16, 2019; to move to amend the pleadings by November 15,
2019; and to file dispositive motions by January 17, 2020.
Id. The defendant since has filed a motion to
dismiss party and add party, dkt. no. 118; and a motion to
file amended answer, dkt. no. 125. The plaintiff has filed a
motion for recusal and motion to clarify, dkt. no. 121; a
motion to compel discovery, dkt. no. 122; a motion to add
parties, dkt. no. 124; and a motion for leave to file amended
complaint, dkt. no. 127. The plaintiff has also filed a
document submitting the names of two of the three John Doe
defendants. Dkt. No. 123. Finally, the defendant has asked
the court to stay proceedings until it rules on the pending
motions. Dkt. No. 132.
Defendant's Motion to Dismiss and to Name New Defendant
(Dkt. No. 118); Defendant's Motion for Leave to Amend
Answer (Dkt. No. 125)
defendant asks to dismiss defendant Michael Hannah and to add
Marlon Hannah as a defendant. Dkt. No. 118. The defendant
indicates that in seeking to determine the identity of the
“CO Hannah” named in the amended complaint,
counsel thought that the defendant was Michael Hannah, based
on an initial review of the allegations and the initial
interview with Michael Hannah. Dkt. No. 119 at 1. The
defendant says, however, that a further review of Milwaukee
County Jail records showed that Michael Hannah had
no connection with the allegations in the amended complaint,
and that the plaintiff likely intended to name
Marlon Hannah as a defendant. Id. The
defendant explains that this understanding of the
plaintiff's intent is solidified by the plaintiff's
recent Sixth Request for Discovery, which clarified that he
is suing the CO Hannah who no longer works at the Milwaukee
County Jail. Id. at 1-2. According to the defendant,
Marlon Hannah no longer works at the jail, he has consented
to be represented by the Office of Corporation Counsel and,
if named, defense counsel will accept service on his behalf.
Id. at 2. The defendant says that because Michael
Hannah has no connection to the allegations in the
plaintiff's amended complaint, he should be dismissed as
a defendant and Marlon Hannah should be named as a defendant
consistent with the plaintiff's allegations and his
discovery inquiry. Id.
on the defendant's motion and supporting brief, it
appears that two CO Hannahs worked at the Milwaukee County
Jail during the relevant events the plaintiff described in
the amended complaint. While CO Michael Hannah was
served with the amended complaint, the defendant now has
additional information clarifying that CO Marlon
Hannah is the “CO Hannah” named in the amended
complaint. The plaintiff has indicated that while the court
referred to the defendant as “Melvin Hannah” (the
court can't find any record of its referring to the
defendant as “Melvin”), “the actual
Defendants name is ‘MARLAN HANNAH”, the brother
of Melvin Hannah.” Dkt. No. 123. The court construes
this as the plaintiff's agreement that the correct
plaintiff is Marlon Hannah. The court will grant the
defendant's motion to dismiss Michael Hannah, and to add
November 5, 2019, the defendant filed a motion for leave to
amend the answer along with a proposed amended answer that
references CO Marlon Hannah as a party in place of CO Michael
Hannah. Dkt. No. 125. The court will grant this motion and
direct the clerk's office to docket the proposed amended
answer (Dkt. No. 125-1).
Plaintiff's Motion for Recusal and Motion to Clarify
(Dkt. No. 121)
August 23, 2019, the court received from the plaintiff a
document entitled “Motion for Clarity.” Dkt. No.
114. In that motion, the plaintiff asserted that in his brief
in support of his motion asking the court to consider its
order requiring him to select from among his many mis-joined
claims (dkt. no. 107), he'd presented arguments
supporting his view that his claims were properly joined; he
argued that the court had not addressed those arguments.
Id. at 1-3. He also questioned whether the court
should continue to preside over his case, given that he'd
filed grievances against Judge Pepper and a writ of
mandamus with the Seventh Circuit. Id. at
4-6. On October 9, 2019, the court responded to that motion
in a five-page order, explaining why the law required the
plaintiff to select among his claims, and responding (as it
has several times) to his allegations that Judge Pepper is
biased against him. Dkt. No. 120.
next day-October 21, 2019-the court received this current
motion for clarification and motion for recusal. Dkt. No.
121. It is almost identical to the motion the plaintiff filed
in August, at Dkt. No. 114. The court addressed the
plaintiff's questions, as well as his request for
recusal, in its order filed October 9, 2019. Dkt. No. 120.
(The court's October 9, 2019 order probably didn't
reach the plaintiff before he submitted his October 10, 2019
motion for recusal and clarity.) Because the court already
has addressed the issues raised in the plaintiff's motion
for clarity and motion for recusal, the court will deny the
motions as moot.
Plaintiff's Motion to Compel Discovery (Dkt. No.
April 2018, the plaintiff filed a motion to compel the
defendants to provide him with discovery, which he summed up
as “any and all documents that allowed the Milwaukee
County Sheriff Dept. to Detain the Plaintiff from July, 28,
2012 through October 28, 2013 fore the case of 2012-cf-03796
or any case, court order, parole violation, warrant, of any
Jurisdiction or county or State in the Continental United
States.” Dkt. No. 77 at 2. This discovery related to
one of the many claims in the amended complaint-his fourth
claim, that certain defendants violated the Fourteenth and
Eighth Amendments by placing him in segregation without a
hearing. See Dkt. No. 99 at 2. The court denied the
motion to compel on February 25, 2019, noting that it had
stayed the proceedings on the merits until it could resolve
the defendants' motion to dismiss on exhaustion grounds.
Dkt. No. 99 at 10.
October 23, 2019, the court received from the plaintiff this
current motion to compel; it is identical to the motion he
filed in April, except that the plaintiff didn't sign or
date it. Dkt. No. 122 at 1-2. The plaintiff did not include a
certification showing that he conferred with defense counsel
before filing his motion to compel, as required by Civil
Local Rule 37 (E.D. Wis.) (motion to compel must “be
accompanied by a written certification by the movant that,
after the movant in good faith has conferred or attempted to
confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court action, the
parties are unable to reach an accord”). Without such a
certification, the plaintiff's motion is premature.
the plaintiff had complied with the court's local rule,
the court would deny his motion, because it asks for
discovery that is not relevant to the claim upon which
he's proceeding. Since the last time the plaintiff filed
this motion, the court required him to choose a single claim
upon which to proceed. The plaintiff did not make that
choice, so the court allowed him to proceed on claim #5 at
page 5 of the June 8, 2016 amended complaint, “the
Fourteenth Amendment excessive force and Eight Amendment
failure to provide medical care claims against CO Hannah and
three John Doe ...