Brown v. Does

Filing 106

ORDER signed by Judge Pamela Pepper on 6/11/2019. 104 Plaintiff's second amended complaint STRICKEN. Claim #5 at page 5 of Amended Complaint, dkt. no. 10, is operative complaint in this case. Defendant Hannah to respond to that claim within 60 days. Defendants Artus, Nurse Brenda 1, Nurse Brenda 2, CO Briggs, Lt. Briggs, Conley, Jane Doe, Nurse Practitioner Doe, John Does (sued as Deputy John Does 1-4), Evans, Finkly, Garth-Dickens, Hubber, Lothan, Malinda (Social Worker Doe), McCoy, Me rcado, Mizdiak, Montano, Reaves, Ruiz, Sara (Social Worker Doe), Sawczuk, Scherrer, Schroeder, CO Stephen, Nurse Vickie, Webb, Wilborn, Yang, Ambrose and Andrykowski DISMISSED. (cc: all counsel, via mail to Ennis Brown at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 16-cv-241-pp

CAPTAIN GARTH-DICKENS, et al.,
Defendants.
______________________________________________________________________________
ORDER STRIKING SECOND AMENDED COMPLAINT (DKT. NO. 104),
DIRECTING THAT #5 AT PAGE 5 OF THE AMENDED COMPLAINT, DKT NO.
10, IS THE OPERATIVE COMPLAINT, ORDERING SERVICE OF THE
AMENDED COMPLAINT ON DEFENDANT CO HANNAH AND DISMISSING
ALL DEFENDANTS BUT CO HANNAH AND JOHN DOE COS 1-3
______________________________________________________________________________
The plaintiff has filed a second amended complaint which includes
claims that the court has twice ordered do not belong in the case. Dkt. No. 104.
The court will strike the second amended complaint and allow the plaintiff to
proceed on Claim 1, set out in #5 at page 5 of his June 8, 2016 amended
complaint, dkt. no. 10.
I.

Background
On February 25, 2019, the court granted the defendants’ motion to

dismiss unrelated claims and determined that the plaintiff could not proceed
on his amended complaint, dkt. no. 10, because it violated Federal Rules of
Civil Procedure 18 and 20. Dkt. No. 99 at 1. The court ordered that if the
plaintiff wanted to proceed, he would have to file separate complaints for each
of his six claims. Id. The court ordered that by April 12, 2019, the plaintiff
must file a second amended complaint in this case related to Claim 1 from the
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amended complaint, and that he should file separate new complaints for each
of Claims 2 through 6 of the amended complaint. Id. at 11-14. The court also
ordered that the plaintiff would not be able to proceed on any new claims that
he did not raise in Claims 1-6, as described in the court’s order. Id. at 14.
On March 4, 2019, the plaintiff filed a motion for reconsideration (titled a
motion for review) of the court’s February 25, 2019 order; he argued that the
court erred when it decided that his claims were mis-joined. Dkt. No. 100 at 1.
Two days later, the court received from the plaintiff a proposed second
amended complaint which reiterated all six claims, and which included a cover
letter asserting that this proposed pleading corrected the misjoinder problem
the court had identified. Dkt. Nos. 101, 101-1.
The court denied the plaintiff’s motion for reconsideration and struck the
proposed second amended complaint. Dkt. No. 103. The court explained that
[t]he plaintiff has not shown that the court’s February 25, 2019
order constituted a manifest error of law or fact. Contrary to the
plaintiff’s assertions, the plaintiff’s proposed second amended
complaint contains separate claims that belong in separate cases.
The fact that the claims arose at the Milwaukee County Jail does not
mean that they belong in the same case. The court acknowledges
that its 2016 screening order allowed the plaintiff to proceed on the
claims; it acknowledged that fact in its February 25, 2019 order,
when it conceded that it should not have permitted the claims to
proceed in the same case. Dkt. No. 100 at 5-10. Rather than just
dismissing the case, the court has given the plaintiff the opportunity
to file his claims correctly.
The court will deny the plaintiff’s motion for review and it will strike
the plaintiff’s proposed second amended complaint. The plaintiff still
has the opportunity to file a single, second amended complaint,
addressing the facts surrounding Claim 1, by April 12, 2019.
Dkt. No. 103 at 4.
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II.

Plaintiff’s April 10, 2019 Second Amended Complaint (Dkt. No. 104)
As noted, the proposed second amended complaint again includes all six

of the plaintiff’s claims. Dkt. No. 104. The plaintiff filed a cover letter in which
he stated that the second amended complaint included all “related matters
pertaining to claim one (1).” Dkt. No. 104-1. He asserted that the claims all
relate to treatment he received at the Milwaukee County Jail after Major Nancy
Evans (Major Jane Doe) placed him in segregation. Id. “As such it show[s] a
‘continuing violation of my rights, and the Mental Health Medication sideeffects may account for the suicidal thoughts and illregular [sic] behavior.” Id.
As the court has explained twice now, the plaintiff may not proceed on all
these claims in the same case. Dkt. No. 99 at 5-10; Dkt. No. 103 at 1-4. The
plaintiff’s second amended complaint does not change the court’s mind about
its prior rulings on this issue, nor has the plaintiff shown that the court erred.
The court has given the plaintiff two chances to follow its orders by filing a
second amended complaint
related to the allegations in the first claim on which the court
allowed him to proceed—#5 at page 5 of his June 8, 2016 amended
complaint, the Fourteenth Amendment excessive force and Eighth
Amendment failure to provide medical care claims against CO
Hannah and three John Doe CO’s, based on the February 6, 2013
incident.
Dkt. No. 99 at 11. Because the plaintiff has twice refused to follow the court’s
orders, the court will order that #5 at page 5 of the June 8, 2016 amended
complaint is the operative complaint. Because CO Hannah has not answered
the June 8, 2016 amended complaint, the court will order him to do so. Once
defendant Hannah answers claim #5 at page 5 of the amended complaint, dkt.
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no. 10, the court will issue a scheduling order, which will include a deadline for
the plaintiff to identify defendants John Doe COs 1-3.
III.

Conclusion
The court STRIKES the plaintiff’s second amended complaint. Dkt. No.

104.
The court ORDERS that claim #5 at page 5 of the amended complaint,
dkt. no. 10, is the operative complaint in this case. The plaintiff may proceed
on Claim 1—#5 at page 5, which is 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.
Under an informal service agreement between Milwaukee County and
this court, the court ORDERS that copies of the plaintiff’s amended complaint,
dkt. no. 10, and this order will be electronically transmitted to Milwaukee
County for service on defendant CO Hannah; the court ORDERS defendant CO
Hannah to file a responsive pleading to #5 at page 5 of the amended complaint
within sixty days of receiving electronic notice of this order.
The court DISMISSES all defendants except CO Hannah and John Doe
COs 1-3.
Dated in Milwaukee, Wisconsin this 11th day of June, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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