Williams v. Howard et al

Filing 66

ORDER signed by Judge Lynn Adelman on 3/4/12 that plaintiffs claims against Leslie Gombus are DISMISSED WITH PREJUDICE. Further granting 50 Defendants' Motion for Summary Judgment. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICKY L. WILLIAMS,
Plaintiff,
v.

Case No. 10-CV-00168

STEPHEN HOWARD, et al.,
Defendants.

DECISION AND ORDER
Plaintiff, Ricky L. Williams, a Wisconsin state prisoner, is proceeding pro se on
claims related to the medical and mental health care he received at Dodge Correctional
Institution in January 2007. In an Order entered May 24, 2010, I allowed plaintiff to proceed
on Eighth Amendment medical care claims and state law medical malpractice claims
against defendants Scott Hoftiezer, Stephen Howard, and Leslie Gombus. However,
defendant Gombus was deceased before plaintiff filed this case and, as a result, he was
never served or made a party to this action. As indicated in an Order entered January 7,
2011, this court cannot exercise jurisdiction over Dr. Gombus or his estate. Plaintiff’s
claims against Dr. Gombus will be dismissed with prejudice. Now before me is a motion
for summary judgment filed by defendants Stephen Howard and Scott Hoftiezer.
I. SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A dispute over a “material fact” is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: “(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers,
or other materials; or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
II. FACTS
The named defendants provided medical and mental health care to plaintiff in
January 2007, while plaintiff was a Wisconsin state prisoner.
On February 4, 2008, plaintiff filed a complaint in Dodge County Circuit Court,
initiating Case No. 08-cv-113. The named defendants in that case were Stephen Howard,
Leslie Gombus, and Scott Hofteizer, the exact same defendants named in this case. As
in this case, plaintiff’s complaint alleged that the medical care defendants provided him in
January 2007 constituted medical malpractice. On August 27, 2008, defendants filed a
motion for summary judgment in the Dodge County case. The court held a hearing on
defendants’ motion on December 2, 2008. At the hearing plaintiff requested dismissal of

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the case without prejudice and defendants requested dismissal with prejudice. The court
issued an order granting defendants’ motion for summary judgment on December 9, 2008.
In the order, the court noted that, pursuant to its scheduling order, plaintiff was required to
name expert witnesses no later than August 8, 2008. As of the December 2, 2008, hearing,
plaintiff still had not named any expert witnesses. The court further noted that plaintiff did
not file an affidavit or make a legal argument in opposition to defendants’ motion for
summary judgment. Instead, plaintiff sent a letter to the court asking the court to dismiss
the case without prejudice if it dismissed the case. Based on the arguments made by the
parties, the court ordered that plaintiff was foreclosed from presenting any expert testimony
at trial based on plaintiff’s failure to timely name an expert. Since plaintiff could not present
expert testimony, the court granted defendants’ motion for summary judgment. The court
stated, “[i]t is well established that a medical malpractice claim cannot be prosecuted
without expert testimony. Since the plaintiff is unable to meaningfully and successfully
prosecute this action, the Court does find that summary judgment is appropriate.” (Aff. of
Robert B. Bresette, Ex. 103 at 2.) The court did not indicate that the dismissal of the case
was without prejudice.
III. DISCUSSION
Defendants argue that this lawsuit is barred by the doctrine of res judicata, or claim
preclusion, because plaintiff brought an earlier lawsuit in Dodge County Circuit Court with
the exact same defendants as this case based on the same underlying facts. Defendants
also address the merits of plaintiff’s claims in their summary judgment materials.

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The doctrine of claim preclusion bars relitigation of a claim decided on the merits
in a prior lawsuit involving the same parties or their privies. Highway J Citizens Group v.
U.S. Dept. of Transp., 456 F.3d 734, 741 (7th Cir. 2006). Claim preclusion, also known as
res judicata, applies to bar a second suit in federal court where there exists: (1) an identity
of the claims; (2) an identity of the parties (or their privies); and (3) a final judgment on the
merits. See Ross ex rel. Ross v. Bd of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279,
283 (7th Cir. 2007). “Once these elements are satisfied, claim preclusion ‘bars not only
those issues which were actually decided in a prior suit, but also all issues which could
have been raised in that action.’” Kratville v. Runyon, 90 F.3d 195, 197–98 (7th Cir. 1996)
(quoting Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337, 338 (7th Cir. 1995)).
“A claim is deemed to have ‘identity’ with a previously litigated matter if it is based on the
same, or nearly the same, factual allegations arising from the same transaction or
occurrence.” Kratville, 90 F.3d at 198 (quoting Brzostowski, 49 F.3d at 338–39). When a
second suit “arises from the same core of operative facts as the first, it meets the test for
identity of the causes of action.” Kratville, 90 F.3d at 198 (citations omitted).
Plaintiff asserts that the dismissal of the Dodge County case was a dismissal without
prejudice. He bases his conclusion on a letter dated June 19, 2009, from Dodge County
Circuit Court Judge Brian A. Pfitzinger. Plaintiff attaches the letter, which states:
I received your undated motion on June 1, 2009. Please be
advised that there is no action remaining in which your motion
can be granted or denied. This case now stands as dismissed.
Until such time as the case is reopened, the Court has no
authority to act in this case.
(Pl.’s Resp. to Def.’s Mot. for Summ. J. Ex. A). Plaintiff argues that this suggests he could
reopen the case.
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However, under Wisconsin law, a dismissal for failure to prosecute operates as an
adjudication on the merits unless the court specifies otherwise. Wisconsin Statute § 805.03
provides, in part:
Failure to prosecute or comply with procedure statutes. For
failure of any claimant to prosecute or for failure of any party
to comply with the statutes governing procedure in civil actions
or to obey any order of court, the court in which the action is
pending may make such orders in regard to the failure as are
just . . . . Any dismissal under this section operates as an
adjudication on the merits unless the court in its order for
dismissal otherwise specifies for good cause shown recited in
the order.
Section 805.03 goes on to provide the methods for setting aside both dismissals on the
merits and dismissals not on the merits:
A dismissal on the merits may be set aside by the court on the
grounds specified in and in accordance with s. 806.07. A
dismissal not on the merits may be set aside by the court for
good cause shown and within a reasonable time.
Thus, the state court judge’s reference to the ability to reopen the case does not alter the
presumption in the statute that a dismissal operates as an adjudication on the merits
unless the court in its order otherwise specifies.
As a result, I will dismiss plaintiff’s medical malpractice claims because they overlap
with the claims plaintiff has already litigated in the Dodge County Circuit Court. In this case,
plaintiff has brought the same claims against the same defendants, and the state court’s
dismissal was a final judgment on the merits. See Ross, 486 F.3d at 283. Additionally,
plaintiff’s Eighth Amendment claims against defendants will be dismissed because they
arise from the same core of operative facts as plaintiff’s medical malpractice claims. See
Kratville, 90 F.3d at 197–98.
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THEREFORE, IT IS ORDERED that plaintiff’s claims against Leslie Gombus are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment
[DOCKET #50] is GRANTED.
Dated at Milwaukee, Wisconsin, this 4th day of March, 2012.

s/_______________________
LYNN ADELMAN
District Judge

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