Brown v. Does
Filing
134
ORDER signed by Chief Judge Pamela Pepper on 1/6/2020. Clerk of Court to add defendants Michael Huber and Michael Ninkovic in place of two of the "John Doe CO's 1-3." 118 Defendant's motion to dismiss party GRANTED; defendant Mi chael Hannah DISMISSED. 118 Defendant's motion to add party GRANTED; Clerk of Court to add Marlon Hannah as defendant. 121 Plaintiff's motion for recusal/motion to clarify DENIED as moot. 122 Plaintiff's motion to compel discover y DENIED. 124 Plaintiff's motion to add parties DENIED. 125 Defendant's motion to file amended answer GRANTED, Clerk of Court to docket proposed amended answer at dkt. no. 125-1 as operative answer. 127 Plaintiff's motion for lea ve to file amended complaint DENIED. 132 Defendant's motion to stay proceedings and amend scheduling order DENIED as moot as to motion to stay and GRANTED as to motion to amend scheduling order; plaintiff must provide identity of third John Doe CO by 1/31/2020, defendants Huber and Ninkovic (and any third defendant identified by 1/31/2020) shall answer or otherwise respond to complaint by 2/28/2020. (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
MICHAEL HANNAH,
and CO JOHN DOE, sued as John Doe CO’s 1-3,
Defendants.
______________________________________________________________________________
ORDER 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)
______________________________________________________________________________
On June 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
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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.
A.
Defendant’s Motion to Dismiss and to Name New Defendant
(Dkt. No. 118); Defendant’s Motion for Leave to Amend Answer
(Dkt. No. 125)
The 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
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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.
Based 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 Marlon Hannah.
On November 5, 2019, the defendant filed a motion for leave to amend
the answer along with a proposed amended answer that references CO Marlon
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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).
B.
Plaintiff’s Motion for Recusal and Motion to Clarify (Dkt. No.
121)
On 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.
The 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
4
in the plaintiff’s motion for clarity and motion for recusal, the court will deny
the motions as moot.
C.
Plaintiff’s Motion to Compel Discovery (Dkt. No. 122)
In 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.
On 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
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without court action, the parties are unable to reach an accord”). Without such
a certification, the plaintiff’s motion is premature.
Even if 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 CO’s, based on the
February 6, 2013 incident.” Dkt. No. 106 at 3. The information the plaintiff
seeks in his motion to compel is not relevant to that claim.
In his response, the defendant argued that under Federal Rule of Civil
Procedure 37(a)(5)(B), when a court denies a motion to compel, the party
opposing the motion may recover reasonable expenses (including attorneys’
fees). Dkt. No. 126 at 2. The defendant asserts that the court should allow him
to recover expenses under this rule because the plaintiff has requested
information multiple times, requiring multiple responses, all of which have
stated that the information is unrelated to the case pending before the court.
Dkt. No. Id. The defendant contends that he should not have been put to the
burden and expenses of addressing these unnecessary discovery demands. Id.
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Rule 37(a)(5)(B) “presumptively requires” that the plaintiff should pay the
defendant’s reasonable expenses. See Rickels v. City of S. Bend, Ind., 33 F.3d
785, 786 (7th Cir. 1994). The rule provides:
If the motion [to compel] is denied, the court … must, after giving an
opportunity to be heard, require the movant, the attorney filing the
motion, or both to pay the party or deponent who opposed the
motion its reasonable expenses incurred in opposing the motion,
including attorney’s fees. But the court must not order this payment
if the motion was substantially justified or other circumstances
make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(B). The plaintiff has not responded to the defendant’s
request for reasonable expenses. The court cannot conclude that the plaintiff’s
motion to compel was “substantially justified.” The plaintiff did not certify that
he consulted with the defendant before seeking court intervention and he seeks
information unrelated to the claims he is proceeding on in this case. The court
is unaware of other circumstances that would make an award of expenses
unjust. Cf. Banty v. Dings Co. Magnetic Group, No. 09-C-0963, 2010 WL
4337905, at *3 (E.D. Wis. Oct. 22, 2010) (“[i]ndigency does not make an award
unjust”); Rickels, 33 F.3d at 786-87 (affirming district court’s order that
unrepresented litigant pay reasonable expenses, including attorney’s fees,
under Rule 37(a)(4)). The court will direct the defendant to submit a
documentation of the reasonable expenses, including attorney’s fees, incurred
in opposing the plaintiff’s motion to compel.
D.
Plaintiff’s Motion to Add Parties (Dkt. No. 124)
The plaintiff has asked the court to allow him to add parties and claims
based on “newly discovered evidence” which shows that he was illegally
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detained during the time when his claim arose. Dkt. No. 124 at 1-2. He says
that this new evidence shows that his claims were properly joined, and that the
court should not have required him to select one claim upon which to proceed.
Id. at 1-2. If, in fact, the plaintiff has new evidence to support his claim of
illegal detention, he may file a new lawsuit making that allegation. The court
already has decided, however, that he cannot pursue that claim—regardless of
how much evidence he has—in this lawsuit. Dkt. Nos. 99, 103, 106. The
plaintiff is attempting to use this request to have the court—once again—
reconsider its order that he can’t proceed on unrelated claims in a single case.
The court understands that the plaintiff disagrees that the claims are
unrelated. He is entitled to disagree, but the court’s ruling stands. The court
will deny the motion to add parties.
E.
Plaintiff’s Motion to Amend Complaint (Dkt. No. 127)
The plaintiff also has asked the court to allow him to amend the
complaint and has provided a proposed amended complaint. Dkt. Nos. 127,
127-1. He seeks to include jail record exhibits as newly discovered evidence to
show that he was illegally detained during the time when his claims arose. Dkt.
No. 127 at 1. The plaintiff states that the claims and parties that the court
previously dismissed may be properly joined because his detention during the
relevant time period was illegal. Id. at 2. According to the plaintiff, he has
presented official jail records that show him “OWB” (out with bail) after the “No
Process” with the jail, yet he was never released and was held in violation of his
Fourth Amendment rights. Id. at 4.
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This motion is another attempt to have the court reconsider its order
dismissing unrelated claims. As explained above and in previous orders, the
plaintiff may not proceed on all his claims in this case. See also Dkt. No. 99 at
5-10; Dkt. No. 103 at 1-4; Dkt. No. 106 at 3. The court will deny the motion.
F.
Plaintiff’s Submission of the Names of John Does (Dkt. No.
123)
On November 1, 2019, the plaintiff provided the court with the names of
John Doe defendants #1 and #2, and with two potential names for John Doe
#3. Dkt. No. 123. The plaintiff stated that he was waiting for a photo to help
him determine the correct name of John Doe #3. Id.
The August 15, 2019 Scheduling Order set a deadline of November 15,
2019 for the plaintiff to file motions to amend the pleadings or add parties,
including the identification of the John Doe defendants. Dkt. No. 113 at 1. The
plaintiff’s letter is timely.
The claim upon which the plaintiff is proceeding stated:
On February 6 2013 while on suicide watch, the C.E.R.T. Team for
[Milwaukee County Criminal Justice Facility] was doing a cell
search. After the search, I was getting the restraints removed as C.O.
Hannah was removing them 3 other C.O’s snatched the rib belt
putting me into the food shute up to my chest. As they held the belt
the hand cuff’s cut into my writs. C.O. Hannah again started to
remove the cuff’s and when he did my wrist was bleeding and my
forearm’s where scratched up and scarred. I then asked for medical
attention and was denied. Later that nite Nurse Vicki examined me
while passing out meds.
Dkt. No. 10 at 5, ¶5. The court will direct the clerk’s office to substitute the
names Michael Huber and Michael Ninkovic for two of the “John Doe CO’s 1-3.”
The court will require the plaintiff to identify the third John Doe CO by the end
9
of the day on January 31, 2020. If the plaintiff does not identify the third John
Doe CO by the end of the day on 31, 2020, the complaint will proceed against
Marlon Hannah, Michael Huber and Michael Ninkovic.
G.
Defendant’s Motion to Stay and Amend Scheduling Order (Dkt.
No. 132)
The defendant has asked the court to stay proceedings until it could rule
on the above motions, and then to amend the scheduling order to allow
discovery regarding any additional defendants. Dkt. No. 132. The plaintiff filed
an objection, but the substance of the objection is the plaintiff’s argument that
the court ought to grant his motions to compel discovery on the illegal
detention claim (which is not part of this case). Dkt. No. 133.
The portion of the motion that seeks a stay of proceedings is moot, but
the court will grant the portion of the motion that seeks amendment of the
scheduling order. The court will require the two added defendants (and if the
plaintiff identifies him, the third identified C.O.) to answer or otherwise respond
to the allegations in paragraph 5 of the amended complaint (Dkt. No. 10) by the
end of the day on February 28, 2020. Once the new defendants have answered
or otherwise responded, the court will set a deadline for conducting discovery
as to the new defendants only, and will set a new dispositive motions deadline.
H.
Conclusion
The court GRANTS the defendant’s motion to dismiss party. Dkt. No.
118. The court DISMISSES WITH PREJUDICE defendant Michael Hannah.
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The court GRANTS the defendant’s motion to add party. Dkt. No. 118.
The court ORDERS that the clerk’s office shall add Marlon Hannah as a
defendant.
The court GRANTS the defendant’s motion to file amended answer. Dkt.
No. 125. The court ORDERS that the clerk’s office will docket the proposed
amended answer, dkt. no. 125-1, as the operative answer.
The court DENIES AS MOOT the plaintiff’s motion for recusal/motion to
clarify. Dkt. No. 121.
The court DENIES the plaintiff’s motion to compel discovery. Dkt. No.
122.
The court GRANTS defendant’s request for reasonable expenses,
including attorney’s fees, incurred in opposing the plaintiff’s motion to compel.
Dkt. No. 126. The court ORDERS that the defendant shall submit
documentation of reasonable expenses within thirty days of the date of this
order.
The court DENIES the plaintiff’s motion to add parties. Dkt. No. 124.
The court DENIES the plaintiff’s motion for leave to file amended
complaint. Dkt. No. 127.
The court ORDERS that the clerk’s office shall add defendants Michael
Huber and Michael Ninkovic in place of two of the “John Doe CO’s 1-3.”
The court GRANTS IN PART AND DENIES IN PART the defendant’s
motion to stay proceedings and amend scheduling order. Dkt. No. 132. The
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court DENIES AS MOOT the defendant’s motion to stay proceedings. The court
GRANTS the defendant’s motion to amend the scheduling order.
The court ORDERS that the plaintiff must provide the court with the
identity of the third John Doe CO in time for the court to receive it by the end
of the day on January 31, 2020.
The court ORDERS that defendants Huber and Ninkovic (and any third
defendant identified by January 31, 2020) must answer or otherwise respond
to the complaint by the end of the day on February 28, 2020.
Dated in Milwaukee, Wisconsin this 6th day of January, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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