Winston v. Hannah et al

Filing 79

ORDER signed by Judge J.P. Stadtmueller on 7/5/2017: DENYING 33 Plaintiff's Motion to Substitute Parties; GRANTING 51 Plaintiff's Motion to Withdraw Summary Judgment Materials; DENYING without prejudice 21 Plaintiff's Motion for Summary Judgment; DENYING 42] Plaintiff's Motion to Compel; DENYING 72 Plaintiff's Expedited Motion for Pavey Hearing; DENYING 68 Plaintiff's Expedited Motion to Set Aside Summary Judgment Response Deadline; GRANTING 77 Plaintiff's Motion to Dismiss Defendants; and DISMISSING Defendants Michael Hannah, Lt. Towns, and Officer Emanuele from action. (cc: all counsel, via mail to Michael L. Winston at Columbia Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. WINSTON,

v.

Plaintiff,

Case No. 16-CV-1420-JPS

MICHAEL HANNAH, LT. TOWNS,
ERIN QUANDT, OFFICER
DANZLER, and OFFICER
EMANUELE,

ORDER

Defendants.
The Court addresses each of Plaintiff’s pending motions. On May 10,
2017, Plaintiff filed a motion to “change case caption to Officer Carroll [sic]
Dismissing Emanuelle[.]” (Docket #33). Plaintiff states that a different
correctional officer, Matthew Carroll (“Carroll”), should be substituted in
this matter in place of the current defendant Officer Emanuele
(“Emanuele”). Id. Federal Rule of Civil Procedure (“FRCP”) 15 governs
amendment of pleadings, which this motion in essence requests.
Amendment at this stage of the litigation may only be done with the
opposing party’s consent or with the court’s leave, which should be given
“when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Defendants oppose the motion because it 1) does not include a
proposed amended complaint, and 2) was offered beyond the Court’s
deadline for amendment of pleadings. The Court agrees with Defendants
on both accounts. The trial scheduling order in this matter, issued in
February of this year, set the deadline for amendment of pleadings as
March 10, 2017. (Docket #13 at 1). The Court has already generously

allowed Plaintiff to amend his complaint once after that deadline. See
(Docket #20). Justice does not require doing so yet again, even farther
removed from the amendment deadline which has been in place for
months. Moreover, neither in his opening motion materials nor in his reply
did Plaintiff actually provide an amended complaint. See (Docket #33 and
#48). Plaintiff was warned that amended pleadings must be complete in and
of themselves; simply substituting a person’s name into a prior pleading
via a motion is not permitted. (Docket #13 at 1); see Civil L. R. 15(a) (“Any
amendment to a pleading, whether filed as a matter of course or upon a
motion to amend, must reproduce the entire pleading as amended, and
may not incorporate any prior pleading by reference.”). The Court will,
therefore, deny Plaintiff’s request to substitute parties.
Relatedly, on June 19, 2017, Plaintiff filed a motion to “strike” his
summary judgment motion, which had been submitted on April 11, 2017.
(Motion to Strike, Docket #51; Motion for Summary Judgment, Docket #21).
He makes this request because the summary judgment materials reference
Emanuele rather than Carroll. (Docket #51). Because FRCP 12(f), the rule
governing motions to strike, does not apply here, the Court will instead
treat the motion as one to withdraw Plaintiff’s prior summary judgment
filing. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”). Though the Court has denied Plaintiff’s request to
substitute Carroll into this action, it will grant the motion to withdraw the
summary judgment materials. The summary judgment motion will be

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denied without prejudice, such that Plaintiff may re-file it if he feels it is
appropriate.1
In the same vein, Plaintiff’s June 30, 2017 motion to dismiss
Defendants Michael Hannah, Lt. Towns, and Emanuele will be granted.
(Docket #77). Plaintiff asks that the Court “grant summary judgment” as to
those defendants, though they have not yet requested it. Id. The Court will
instead dismiss those defendants from this action with prejudice; the late
stage of these proceedings, in conjunction with the language of Plaintiff’s
motion, makes such a dismissal appropriate.
In the midst of these pleading issues, Plaintiff filed a motion to
compel on May 19, 2017. (Docket #42). He later filed a “supplement” to that
motion on June 5, 2017, seeking an order compelling responses to entirely
different discovery requests. (Docket #46).2 The motion must be denied for
Plaintiff’s failure to comply with Civil Local Rule 37, which governs such
discovery motions. It provides:
All motions to compel disclosure or discovery
pursuant to Fed. R. Civ. P. 26 through 37 must be

Plaintiff filed “replies” in support of his summary judgment motion, as
well as related evidentiary materials, on June 29 and 30, 2017. (Docket #69, #70,
#71, #74, #75, and #76). It appears that these documents may be intended to also
serve as responses to Defendants’ motions for summary judgment. To the extent
that this is correct, Plaintiff should note that his “replies” are rendered moot, along
with the rest of his summary judgment materials. If he wishes to offer a response
to Defendants’ motions, he must do so by a separate brief in accordance with the
applicable local and federal rules of procedure. See Civil L. R. 56, Fed. R. Civ. P. 56.
1

Plaintiff offers no citation to a case or procedural rule suggesting that it is
acceptable to “supplement” a motion weeks after it was originally filed. However,
because the “supplement” fails on the same ground as the original motion, the
Court need not fully explore how Plaintiff’s improper filing should be treated. The
Court nevertheless notes for Plaintiff’s benefit that he should avoid “supplements”
to motions in the future; it is highly likely that they would simply be ignored.
2

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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 without court action, the
parties are unable to reach an accord. The statement must
recite the date and time of the conference or conferences and
the names of all parties participating in the conference or
conferences.
Civil L. R. 37. Neither of Plaintiff’s submissions contain a certification which
comes near to compliance with this rule. See (Docket #42 at 2) (“I have tried
to obtain the above information from the defendants without success and
believe that without assistance from the Court I will not be able to.”);
(Docket #46 at 2) (“The defendants have failed to produce this information
as stated and the plaintiff does not believe defendants will produce the
information without instruction from the Court to do so.”).
Plaintiff belatedly attempts to save his motion to compel in his reply.
He states that certain postage disbursement requests prove that he sent
letters to opposing counsel about his discovery issues (he does not have
copies of the letters). (Docket #49 at 1-2). Even if the Court assumes that the
letters conveyed Plaintiff’s dissatisfaction (opposing counsel does not think
so), this does not forgive Plaintiff’s failure to include the necessary
certification in opening brief of the motion. The motion to compel will,
therefore, be denied.
Next, on June 29, 2017, Plaintiff filed a second, expedited motion for
a Pavey hearing to discuss Defendants’ “exhaustion of remedies”
affirmative defense. (Docket #72). This motion will be denied for two
reasons. First, expedited motions are not permitted in prisoner civil
litigation. See Civil L. R. 7(h)(3) (“The provisions of subsection (h) do not
apply to 42 U.S.C. § 1983 actions brought by incarcerated persons
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proceeding pro se.”). Second, as the Court noted previously, it sees no need
for a hearing on the matter. See (Docket #44). The issue will be decided on
the parties’ written submissions. Finally, on that same date, Plaintiff filed
an expedited motion to “set aside response to Plaintiff to Defendants Erin
Quandt motion for summary judgment.” (Docket #68). This motion must
likewise be denied as an improper use of the expedited motion procedure.
Further, this motion is premised on the Court granting Plaintiff’s request
for a hearing, which has already been denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to substitute parties (Docket
#33) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to withdraw his
summary judgment materials (Docket #51) be and the same is hereby
GRANTED, and his motion for summary judgment (Docket #21) be and
the same is hereby DENIED without prejudice;
IT IS FURTHER ORDERED that Plaintiff’s motion to compel
(Docket #42) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s expedited motion for a
Pavey hearing (Docket #72) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s expedited motion to set
aside his summary judgment response deadline (Docket #68) be and the
same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion to dismiss
Defendants Michael Hannah, Lt. Towns, and Officer Emanuele from this
action (Docket #77) be and the same is hereby GRANTED.

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Dated at Milwaukee, Wisconsin, this 5th day of July, 2017.
BY THE COURT:
____________________________
J. P. Stadtmueller
U.S. District Judge

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