Dewald v. Gorske et al
Filing
64
OPINION AND ORDER The court DENIES the 61 motion to reconsider and DENIES the 62 motion for leave to amend the complaint. Signed by Judge Robert L Miller, Jr on 9/12/18. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BART DEWALD,
Plaintiff,
v.
CAUSE NO.: 3:18-CV-182-RLM-MGG
LACEY R. GORSKE,
Defendant.
OPINION AND ORDER
Bart Dewald, a prisoner without a lawyer, filed a motion to reconsider the
order screening the initial complaint. He seeks to reinstate Corizon Health
Services and five employees as defendants, including Joseph M. Thompson,
John Dallas, Dawn Odie-Nelson, Michael Mitcheff, and Diane Kaminsky. Mr.
Dewald’s request can’t be granted because he didn’t name any of these entities
as defendants in either his initial complaint (ECF 2) or in the complaint on which
he currently proceeds (ECF 16). As a result, this motion is denied.
Mr. Dewald also filed a proposed amended complaint. At this stage of the
proceedings, “a party may amend the party’s pleading only by leave of court or
by written consent of the adverse party; and leave shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Because Mr. Dewald didn’t not have
leave to amend, the court construes the proposed amended complaint as a
motion for leave to amend. “Reasons for finding that leave should not be granted
include “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and]
futility of amendment.” Airborne Beepers & Video, Inc. v. AT & T Mobility LLC,
499 F.3d 663, 666 (7th Cir. 2007).
To start, it appears that allowing Mr. Dewald to proceed on his proposed
amended complaint would likely result in unintended consequences. Mr. Dewald
is already proceeding on claims of deliberate indifference to his serious medical
needs in relation to his neck injury against Lacey R. Gorske, Debra Rose, Sherry
Fritter, Christine Tripp, Becky Hess, Susan Watkins, and Wexford Health
Sources. He doesn’t restate his claims against any of these individual defendants
in the proposed amended complaint. Under the local rules, the most recent
amended complaint replaces older complaints in their entirety. N.D. Ind. L.R.
15-1(b)(1). This means that allowing Mr. Dewald to proceed on the proposed
amended complaint would also mean dismissing the claims against Lacey R.
Gorske, Debra Rose, Sherry Fritter, Christine Tripp, Becky Hess, and Susan
Watkins. It seems unlikely that Mr. Dewald meant to dismiss his claims against
six defendants by filing the proposed amended complaint, and the court won’t
grant leave to proceed on the proposed amended complaint absent a clearer
statement of intent.
Additionally, the proposed amended complaint alleges that correctional
staff has retaliated against him for filing this lawsuit by subjecting him to
discipline without due process, by placing him in disciplinary segregation, and
by not allowing him to receive visits. Though Mr. Dewald might have a valid claim
of First Amendment retaliation, he can’t bring it in this case because these
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allegations are unrelated to his medical claims. George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in
different suits).
Mr. Dewald can file a motion to amend his complaint, but he must also
attach a proposed amended complaint that is complete in and of itself and
doesn’t rely on prior complaints. In the motion, Dewald should explain how the
proposed complaint is different from the complaint on file, including whether he
intends to dismiss any of claims on which he now proceeds. In the proposed
complaint, he should restate the claims allowed to proceed in the screening order
-- to the extent he wants to continue to pursue them -- in addition to any new
facts, claims, or demands he wishes to assert. At minimum, any new allegations
must be related to his medical claims, which involve treatment for his neck injury
and pain medication.
For these reasons, the court DENIES the motion to reconsider (ECF 61);
and DENIES the motion for leave to amend the complaint (ECF 62).
SO ORDERED on September 12, 2018
/s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT
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