Winston v. Clark et al

Filing 15

ORDER signed by Judge Rudolph T. Randa on 2/24/2016. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. 9 Plaintiff's MOTION to Waive partial filing fee DENIED as moot. By 3/25/2016 plaintiff may file amended complaint. Wis. DOC to collect $349.91 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Warden and Michael Winston(with copy of Court's complaint form) at Columbia Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L WINSTON ,
Plaintiff,
-vs-

Case No. 15-CV-1398

DAVID A CLARK,
KEONA GARTH-DICKENS,
BRANDON LAWLER,
NURSE CHRIS,
JANE DOE #1, Nurse,
JANE DOE #2, Nurse Practitioner,
JOHN DOES #1-10, C/O,
Defendants.

DECISION AND ORDER
On November 23, 2015, Michael L Winston, filed a pro se complaint
under 42 U.S.C. § 1983 alleging that his constitutional rights were violated
at the Milwaukee County Jail. The plaintiff petitioned to proceed in forma
pauperis, and the Court assessed an initial partial filing fee of $0.09.
On December 7, 2015, the plaintiff filed a motion to waive the initial
partial filing fee. The plaintiff then paid the initial partial filing fee in full
on February 16, 2016. Therefore, the plaintiff’s motion for leave to proceed
in forma pauperis is granted, and his motion to waive the partial filing fee
is denied as moot.

Regardless of fee status, the Prison Litigation Reform Act requires
federal courts to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). The Court may dismiss an action or portion
thereof if the claims alleged are “frivolous or malicious,” fail to state a
claim upon which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
The plaintiff alleges significant Eight Amendment violations against
individuals at the Milwaukee County Jail. He seeks monetary damages
from Clark, Dickens, Jane Doe Nurse #1, Jane Doe Nurse Practitioner #2,
Nurse Chris, Dr. Lothian, Lawler, and John Doe Correctional Officers #110. However, Dr. Lothian is not listed as a party in either the caption of
the complaint or the “parties” section of the complaint. (ECF No. 1 at 1-2).
“Selecting defendants is a task for the plaintiff, not the judge.” Myles v.
United States, 416 F.3d 551, 553 (7th Cir. 2005).

Therefore, it is

“unacceptable for a court to add litigations on its own motion.” Id.
If the plaintiff seeks to allege claims against Dr. Lothian, he must
file an amended complaint including the doctor as a party on or before
March 25, 2016. If the plaintiff files an amended complaint, the Court
will screen it pursuant to 28 U.S.C. § 1915A. If the plaintiff chooses not to
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amend the complaint, the Court will issue a screening order based on the
original complaint. The plaintiff is advised that the amended complaint
must bear the docket number assigned to this case and must be labeled
“Amended Complaint.”

The amended complaint supersedes the prior

complaint and must be complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No.
84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). The “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading[.]” Id.
at 1057 (citation omitted).
ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion for
leave to proceed in forma pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion to waive
the partial filing fee is DENIED as moot.
IT IS FURTHER ORDERED that on or before March 25, 2016
the plaintiff may file an amended pleading curing the defects in the
original complaint as described herein.
IT IS ALSO ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prison trust account the $349.91 balance of the filing fee by collecting
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monthly payments from the plaintiff’s prison trust account in an amount
equal to 20% of the preceding month’s income credited to the prisoner’s
trust account and forwarding payments to the clerk of the court each time
the amount in the account exceeds $10 in accordance with 28 U.S.C.
§ 1915(b)(2). The payments shall be clearly identified by the case name
and number assigned to this action.
IT IS ALSO ORDERED that copies of this order be sent to the
warden of the Columbia Correctional Institution.
IT IS ALSO ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
Dated at Milwaukee, Wisconsin, this 24th day of February, 2016.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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