Williams v. Mikutis et al

Filing 13

ORDER signed by Judge Pamela Pepper on 2/8/2017 DEFERS RULING ON 2 Plaintiff's motion to proceed without prepayment of the filing fee; DENYING AS MOOT 5 Plaintiff's motion to waive the initial partial filing fee; and DENYING 8 Plainti ff's motion to consolidate cases. The court ORDERS that the plaintiff may file an amended complaint by the end of the day on 3/10/2017. The court also ORDERS that if the plaintiff determines he no longer wants to pursue one or more of these three cases, he must file a notice of voluntary dismissal by 3/10/2017. (cc: all counsel; by US Mail to plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TRAVIS DELANEY WILLIAMS,
Plaintiff,
v.

Case No. 16-cv-1318-pp
Case No. 16-cv-1319-pp
Case No. 16-cv-1320-pp

KURT MIKUTIS, et al.,
Defendants.
______________________________________________________________________________
ORDER ALLOWING THE PLAINTIFF TO FILE AN
AMENDED COMPLAINT SO THAT HE MAY CONSOLIDATE HIS
RELATED CLAIMS AND DEFENDANTS IN A SINGLE LAWSUIT
______________________________________________________________________________
The Plaintiff’s Motions to Consolidate Three Lawsuits
On October 3, 2016, the plaintiff, who is representing himself, filed three
complaints, which the clerk of court designated as Case Nos. 16-cv-1318, 16cv-1319, and 16-cv-1320. On October 24, 2016, the plaintiff filed an identical
motion in all three cases. The motion asks the court to consolidate the three
cases into a single case. The plaintiff explains that all of the defendants work
for the same institution, and he wants to consolidate the cases to avoid a
duplication of efforts and to promote judicial economy and efficiency. See, e.g.,
Case No. 13-cv-1318, Dkt. No. 10.
Under Federal Rule of Civil Procedure 18, a plaintiff may assert
numerous unrelated claims against a single defendant. In other words, if the
plaintiff has three claims against defendant X, he does not need to file three
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different cases; he can file all of his claims in a single case, even if the claims
against that defendant do not arise out of the same events or circumstances or
do not have anything in common with one another.
Under Fed. R. Civ. P. 20(a)(2), a plaintiff may name multiple defendants
in a single lawsuit if his claims arise “out of the same transaction, occurrence,
or series of transactions or occurrences; and any question of law or fact
common to all defendants will arise in the action.” In other words, a plaintiff
can sue defendants X, Y, Z in the same case if the defendants all were involved
in the same alleged event(s) and if the questions of law or fact that the court
will decide apply to all of the defendants.
What a plaintiff may not do is sue different defendants on unrelated
claims in a single case. As the Court of Appeals for the Seventh Circuit has
cautioned, “[u]nrelated claims against different defendants belong in different
suits,” to prevent prisoners from dodging the fee payment or three strikes
provisions in the Prison Litigation Reform Act. George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007).
The court briefly reviewed the three complaints that the plaintiff wishes
to consolidate. The defendant has sued two (2) of the same defendants in all
three lawsuits: Guard Becker and Robert Croecker (or Croker—the plaintiff
spells the name differently in different cases). The court will refer to these
defendants as the “core defendants.” Under Fed. R. Civ. P. 18, the plaintiff may
pursue as many claims as he believes he has against the core defendants in a
single lawsuit.
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In addition, under Fed. R. Civ. P. 20, the plaintiff may name additional
defendants if they were involved in the events that gave rise to any of his claims
against the core defendants. The plaintiff has sued twelve (12) defendants in
two out of the three lawsuits: Kurt Mikutis, Denise Jarvella (or Jarvela), John
Giannini, Nate Knutz, Guard Joe, Denise Molitor-Haney, Carlos Gerena, Denise
Bell, C. Fernandez, and David G. Beth. The remaining defendants—Darron
Newton; Guard LaHare; Camron; Kenosha Visiting Community Care, Inc.;
Advance Correctional Healthcare; Nurse Jane Doe #1; Nurse Jane Doe #1; Nurs
Jane Doe #3; Debra Hertzberg; Jim Kreuser; Robert Hallisy; Norman R.
Johnson; Shawn Zwirgzdas; Carol Oneal; Allan K. Kehl; and Lattare—appear to
have been named in only one of the suits (although 16-cv-1319 and 16-cv1320 both involve a Nurse Doe #1 and a Nurse Doe #2). If these defendants
were involved in any of the events that gave rise to the claims the plaintiff has
raised against the core defendants, he may add them.
To make things easier for both the parties and the court, the court is
going to allow the plaintiff to file an amended complaint in Case No. 16-cv1318. The plaintiff should include in that amended complaint all of the claims
the plaintiff believes he has against the core defendants, and should name any
additional defendants who were involved in the events that gave rise to his
claims against the core defendants. The plaintiff should be careful not to name
additional defendants who had no involvement in the events giving rise to
claims against the core defendants. Such claims would be “unrelated,” and

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under the rules, he cannot sue those “unrelated” defendants in the same suit
with related defendants.
Because the court is giving the plaintiff the opportunity to file an
amended complaint in Case No. 16-cv-1318 that incorporates all of his related
claims and defendants, the court will deny his motions to consolidate. If the
plaintiff chooses to file an amended complaint and is able to properly join all of
his claims from Case Nos. 16-cv-1319 and 16-cv-1320 into Case NO. 16-cv1318, the plaintiff then should file, in Case Nos. 16-cv-1319 and 16-cv-1320,
motions to voluntarily dismiss those two cases. See Fed. R. Civ. Pro. 41 (a
plaintiff may voluntarily dismiss an action without a court order if he files a
notice of dismissal before the opposing party serves an answer or motion for
summary judgment).
If, on the other hand, there are claims or defendants in those two cases
that the plaintiff cannot properly join in his amended complaint in Case No.
16-cv-1318, the plaintiff will also have to file amended complaints in Case Nos.
16-cv-1319 and 16-cv-1320. In those amended complaints, he may bring only
the claims he couldn’t bring in Case No. 16-cv-1318, and may name only those
defendants he could not join in Case No. 16-cv-1318. The court will set the
deadlines for filing these amended complaints at the end of this order.
The Plaintiff’s Motions to Proceed without Prepayment of the Filing Fee
Because the plaintiff was a prisoner when he filed his lawsuits, the
Prison Litigation Reform Act (PLRA) applies. The PLRA allows a prisoner
plaintiff to proceed with a lawsuit without prepaying the case filing fee, as long
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as he meets certain conditions. One of those conditions is that he pay an initial
partial filing fee. 28 U.S.C. §1915(b).
The court entered an order in each of the three cases requiring the
plaintiff to pay an initial partial filing fee. In all three cases, the plaintiff
responded with a motion asking the court to waive the initial partial filing fee.
Despite these motions, the plaintiff then paid the initial partial filing fee in
Case Nos. 16-cv-1318 and 16-cv-1319. The plaintiff has not paid the initial
partial filing fee in Case No. 16-cv-1320.
Once a plaintiff pays an initial partial filing fee, the court usually screens
the plaintiff’s complaint pursuant to 28 U.S.C. §1915A and decides whether to
grant his motion to proceed without prepayment of the filing fee. If the court
grants that motion, it then orders the plaintiff to pay the remainder of the fee
over time.
Here, based on the court’s decision to allow the plaintiff to amend his
complaint in Case No. 16-cv-1318, and based on the possibility that he may be
able to bring many (if not all) of his claims in a single case, it is premature for
the court to require the plaintiff to pay the $350 filing fee for three different
cases. Instead, the court will grant the plaintiff’s motion for leave to proceed
without prepayment of the filing fee only in Case No. 16-cv-1318. Given that he
has already paid the initial partial filing fees in Case Nos. 16-cv-1318 and 16cv-1319, the court will deny his motions to waive those fees as moot. The court
will defer ruling on the plaintiff’s motions to proceed without prepayment of the

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filing fee in Case Nos. 16-cv-1319 and 16-cv-1320 until the plaintiff either files
notices of voluntary dismissal or amended complaints.
ORDER
The court GRANTS the plaintiff’s motion to proceed without prepayment
of the filing fee in Case No. 16-cv-1318 (dkt no. 2). The court ORDERS that the
Secretary of the Wisconsin Department of Corrections or his designee shall
collect from the plaintiff’s prisoner trust account the $348.69 balance of the
filing fee by collecting 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 Court
each time the amount in the account exceeds $10 in accordance with 28 U.S.C.
§ 1915(b)(2). Please identify the payments by the case name (Williams v.
Mikutis) and number (16-cv-1318) assigned to this action.
The court DEFERS RULING on the plaintiff’s motions to proceed without
prepayment of the filing fee in Case No. 16-cv-1319 (dkt. no. 2) and Case No.
16-cv-1320 (dkt. no. 2).
The court DENIES AS MOOT the plaintiff’s motions to waive the initial
partial filing fee in Case No. 16-cv-1318 (dkt. no. 6) and Case No. 16-cv-1319
(dkt. no. 5).
The court DEFERS RULING on the plaintiff’s motions to waive the initial
partial filing fee in Case No. 16-cv-1320 (dkt. nos. 6, 12).

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The court DENIES the plaintiff’s motions to consolidate Case No. 16-cv1318 (dkt. no. 10); Case No. 16-cv-1319 (dkt. no. 8); and Case No. 16-cv-1320
(dkt. no. 10).
The court ORDERS that the plaintiff may file amended complaints in
Case Nos. 16-cv-1318, 16-cv-1319, and/or 16-cv-1320 by the end of the day
on March 10, 2017. The plaintiff must send the amended complaint(s) in time
for the court to receive them by March 10, 2017.
The court also ORDERS that, if the plaintiff determines that he no longer
wants to pursue one or more of these three cases (because he is pursuing his
claims in other lawsuits), he must file a notice of voluntary dismissal in any
case he wants to dismiss by March 10, 2017. The plaintiff needs to send the
motion(s) in time for the court to receive them by the end of the day on March
10, 2017. If the court does not receive an amended complaint or a notice of
voluntary dismissal in each of Case Nos. 16-cv-1318, 16-cv-1319, and/or 16cv-1320, the court may assume that the plaintiff no longer wishes to pursue
that lawsuit, and may dismiss the lawsuit pursuant to Civil L.R. 41(c).
The court further ORDERS the plaintiff to 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.
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If the plaintiff fails to file any of the above documents in time for the
court to receive them by the deadlines stated above, the court may dismiss the
case in which he failed to file the document for failure to prosecute. In addition,
the parties must notify the clerk of court of any change of address; otherwise,
the delivery of orders or other information may be untimely, thus affecting the
legal rights of the parties.
Dated in Milwaukee, Wisconsin this 8th day of February, 2017.

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