Johnson v. Wisconsin Correctional Center et al
Filing
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DECISION AND ORDER signed by Judge Lynn Adelman on 6/23/16 that plaintiffs motion for leave to proceed without prepayment of the filing fee 2 is DENIED as moot. Further ordering that plaintiffs motion to change payment from the full filing fee ( 036;350.00) to $304.12 9 is DENIED. Further ordering that plaintiffs motions for appointment of counsel 4 , 11 are DENIED without prejudice. Further ordering that plaintiffs motion to state a medical malpractice claim 6 is DENIED. Plain tiff may file an amended complaint on or before July 22, 2016. Further ordering that plaintiffs motion to correct caption and change defendant names 10 is DENIED. Plaintiff may file an amended complaint on or before July 22, 2016. Further ordering that plaintiffs motion for permission to talk to a mediator 12 is DENIED. (cc: all counsel, via USPS to plaintiff) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST L. JOHNSON, JR.,
Plaintiff,
-vs-
Case No. 16-CV-592
WISCONSIN CORRECTIONAL CENTER,
DR. EUGENE BURKE,
AURORA HEALTH CARE,
DR. JOHN DOE, and,
DR. JEFFREY B. SHOVERS
Defendants.
DECISION AND ORDER
Plaintiff, Earnest Johnson, filed an action under 42 U.S.C. § 1983, alleging that
defendants violated his civil rights. This matter comes before me on: (1) plaintiff’s motion
for leave to proceed without prepayment of the filing fee (ECF No. 2); (2) plaintiff’s
motion, and second motion, for appointment of counsel (ECF Nos. 4,11); (3) plaintiff’s
motion to state a medical malpractice claim (ECF No. 6); (4) plaintiff’s motion to change
payment from the full filing fee ($350.00) to $304.12 (ECF No. 9); (5) plaintiff’s motion to
correct the caption and change defendant names (ECF No. 10), and (6) plaintiff’s motion
for permission to talk to a mediator (ECF No. 12).
Motions on Payment of the Filing Fee
The Prison Litigation Reform Act (“PLRA”) allows inmates to proceed with their
lawsuits in federal court without pre-paying the $350 filing fee. 28 U.S.C. § 1915.
However, the inmate must comply with certain requirements, one of which is to pay an
initial partial filing fee. Id.
On May 19, 2016, plaintiff petitioned to proceed without pre-paying the filing fee.
I assessed an initial partial filing fee of $304.13 that was due within 21 days of the order.
Plaintiff paid the full filing fee ($350.00) on June 2, 2016. Therefore, I will deny as moot
plaintiff’s motion to proceed without prepayment of the filing fee. (ECF No. 2)
I will further deny plaintiff’s motion to change his payment from the full filing fee
($350.00) to $304.13. (ECF No. 11). I issued the order calculating the initial partial filing
fee before plaintiff sent in payment in full, and plaintiff provides no explanation for why
he initially paid the amount in full but now seeks return of some of that money. Plaintiff
is ultimately required to pay the filing fee in full notwithstanding the option to initiate the
action without prepayment of the entire amount. Plaintiff may file a renewed motion to
change payment if he can show that payment in full was caused by prison error rather
than his own request to send that amount.
Motions to Appoint Counsel
I have discretion to recruit counsel for litigants unable to afford one in a civil case.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. § 1915(e)(1); Ray v.
Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). However, litigants
must first show me that they have made reasonable attempts to secure private counsel
on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). Plaintiff must contact at
least three attorneys and provide me with: (1) the attorneys’ names, (2) the addresses,
(3) the date and way plaintiff attempted to contact them, and (4) the attorney’s
responses. To that end, plaintiff must do more than merely assert that he contacted
several attorneys.
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Plaintiff asserts that he contacted several attorneys but he has not provided me
with any of the other information I need. Therefore, I will deny his motions to appoint
counsel without prejudice. (ECF Nos. 4, 11).
Motions on Amending the Complaint
Plaintiff seeks to amend the complaint to add medical malpractice claims. (ECF
No. 6). He also seeks to change the caption to dismiss Wisconsin Correctional Center
and Aurora Health Care from the action and add SGT Janus and Dr. Maria Beg as new
defendants. (ECF No. 10).
The Federal Rules of Civil Procedure allow plaintiff to amend the complaint once
as a matter of course. Fed. R. Civ. P. 15(a)(1)(A). As a result, plaintiff’s motions to add
medical malpractice claims (ECF No. 6) and change the defendants (ECF No. 10) are
denied as moot. However, plaintiff may file an amended complaint on or before July 22,
2016, stating every claim he seeks to proceed with and identifying every defendant he
seeks to proceed against. I will then issue one comprehensive screening order for the
entire action. If plaintiff chooses not to file an amended complaint, I will screen the
original complaint at that time.
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.
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Motion for Mediation
Finally, plaintiff asks to speak with a mediator. Mediation is most successful
when both parties believe that resolution through settlement is possible.
For that
reason, I will deny plaintiff’s motion at this time. (ECF No. 12). However, if defendants
notify me that they too wish to pursue mediation, I will refer the case to a magistrate
judge for mediation at that time.
ORDER
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (ECF No. 2) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion to change payment from the
full filing fee ($350.00) to $304.12 (ECF No. 9) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motions for appointment of counsel
(ECF Nos. 4,11) are DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to state a medical malpractice
claim (ECF No. 6) is DENIED. Plaintiff may file an amended complaint on or before July
22, 2016.
IT IS FURTHER ORDERED that plaintiff’s motion to correct caption and change
defendant names (ECF No. 10) is DENIED. Plaintiff may file an amended complaint on
or before July 22, 2016.
IT IS FURTHER ORDERED that plaintiff’s motion for permission to talk to a
mediator (ECF No. 12) is DENIED.
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IT IS FURTHER ORDERED that 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.
Plaintiff is further advised that failure to make a timely submission may result in
the dismissal of this action for failure to prosecute. In addition, the parties must notify
the Clerk of Court of any change of address. Failure to do so could result in orders or
other information not being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 23rd day of June, 2016.
s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge
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