McDaniel v. Johnson

Filing 43

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 10/23/2017. 33 Defendant's motion for summary judgment GRANTED. 40 Plaintiff's motion to substitute party DENIED. Case DISMISSED. (cc: all counsel, via mail to Milton McDaniel at Waupun Correctional Institution-with copy of EDWI Guide to Filing Prisoner Complaints and complaint form)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MILTON MCDANIEL,
Plaintiff,
v.

Case No. 17-cv-91-pp

DOYAL JOHNSON,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 33), DENYING WHAT THE COURT
CONSTRUES AS THE PLAINTIFF’S MOTION TO SUBSTITUTE DEFENDANT
(DKT. NO. 40), AND DISMISSING CASE WITHOUT PREJUDICE
______________________________________________________________________________
On January 19, 2017, the plaintiff filed a complaint against defendant
CO II Johnson, alleging that Johnson gave him the wrong prescription
medication and that it caused him physical problems. Dkt. No. 1. Judge Nancy
Joseph screened the complaint, and on March 10, 2017, issued an order
allowing the plaintiff to proceed against Johnson on a claim that Johnson was
deliberately indifferent to the plaintiff’s serious medical need under the Eighth
Amendment. Dkt. No. 17 at 4. Johnson answered the complaint on May 3,
2017. Dkt. No. 22. This court gave the parties a deadline of August 21, 2017 by
which to complete discovery, and a deadline of September 19, 2017 to file
dispositive motions. Dkt. No. 25.
On September 19, 2017, defendant Johnson filed a motion for summary
judgment, dkt. no. 33, and a supporting brief, dkt. no. 34. Johnson disputed
that he had given any medication to the plaintiff on the date alleged, or that
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he’d had any involvement in distributing medication to the plaintiff on that
date. Id. at 1-2. Johnson indicated that the medication distribution records
showed that an officer named Steele—not defendant Johnson—gave the
plaintiff his medications on the day in question. Id. at 4. Johnson also argued
that, contrary to the plaintiff’s assertions, DOC policy did allow corrections
officers to distribute medication, id.; that there was no reason to believe that
the plaintiff had received the wrong medication, id. at 6; and that, even if
someone else had given the plaintiff the wrong medication, the pain, dizziness
and nausea the plaintiff claimed to suffer did not constitute a serious medical
need. Id. at 6-8.
Under this court’s May 22, 2017 scheduling order, the plaintiff’s
response to the summary judgment motion was due within thirty days of the
date the defendant served the motion. Dkt. No. 25 at 1. This means that the
plaintiff’s response was due sometime around October 19, 2017. That date now
has passed, and the plaintiff has not responded to the defendant’s motion for
summary judgment. On September 26, 2017, however, the court received a
letter from the plaintiff. Dkt. No. 40. In the letter, the plaintiff indicates that he
made a mistake—that it was CO II Steele who gave him the wrong medication
on the day in question. Id. at 1. Thus, the plaintiff has conceded that he does
not have a claim against the only defendant he has named in the case—
defendant Johnson. For this reason, the court must grant summary judgment
in favor of defendant Johnson.

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The letter the court received on September 27, 2017 does not ask the
court to do anything; it simply indicates that CO II Steele was the person who
gave the plaintiff the wrong medication. The court cannot read much of the
second page of the letter, but it appears to discuss someone named “Talbot,” or
“Talbat,” and then says, “it was officer CO II Steele.” Id. Nine days later, the
court received a hand-written document from the plaintiff. Dkt. No. 41. The
document appears to be a complaint, although it is not on the court’s prisoner
complaint form. On the first page, at the top, the document lists the defendant
as CO II Steele. Id. at 1. That is the only mention of any particular defendant
anywhere in the three-page document. The body of the document refers to
“defendants,” plural, but does not name any other individuals. It states that
“all security officers in this claim” are neglecting the fact that “the D[epartment]
O[f] [C]orrections staff that are named in this complaint” are knowingly letting
non-nurse staff members disburse medications, and letting them disburse the
wrong medications. Id.
The next day—October 6, 2017—the court received another document
from the plaintiff. Dkt. No. 42. The title of this document is “Eighth
Amendment.” Id. at 1. This document does mention CO II Steele, stating that
when Steele gave the plaintiff the wrong medication, it caused him to vomit
blood, become dizzy, fall on the floor and vomit all over the bed. Id. The
document indicates that Steele left the plaintiff until third shift, and that all of
this did damage to his liver. Id.

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The court construes the letter it received on September 26, 2017 as the
plaintiff’s motion for permission to file an amended complaint. Dkt. No. 40. The
court assumes that the plaintiff read defendant Johnson’s motion for summary
judgment and supporting documents, and learned that it was Steele, not
Johnson, who had given the plaintiff his medication on the date in question.
The plaintiff appears to have reacted to that information by attempting to file
an amended complaint, naming Steele instead of Johnson as a defendant.
The court will not allow the plaintiff to amend the complaint in this case
for several reasons. First, as the court has already stated, because there is no
evidence that defendant Johnson violated the plaintiff’s constitutional rights,
the court must grant summary judgment in favor of Johnson.
Second, the plaintiff’s request is not timely. If, before the deadline for
filing summary judgment, the plaintiff had asked the court to dismiss
defendant Johnson and to add Steele as a defendant, the court would have
done so, and then would have allowed Steele time (if necessary) to conduct
further discovery. But at this stage, after Johnson has filed a motion for
summary judgment, a brief and proposed findings of fact—and given that the
plaintiff has not responded to that motion, but concedes that he named the
wrong defendant—it is too late to amend the complaint.
Third, the proposed amended complaint does not state a claim against
CO II Steele. While it names CO II Steele in the caption, it doesn’t explain, in
the body of the complaint, what CO II Steele did to the plaintiff to deprive him
of his constitutional rights.
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If the plaintiff still believes that he has a claim against CO Steele, he may
file a new lawsuit, naming Steele as a defendant and explaining what actions
Steele took (or didn’t take) to violate his constitutional rights. The plaintiff
should use the court’s inmate complaint form; the court is providing a blank
copy of that form, along with the “Guide to Filing Prisoner Complaints Without
a Lawyer in the United States District Court for the Eastern District of
Wisconsin.”
The court GRANTS the defendant’s motion for summary judgment. Dkt.
No. 33.
The court CONSTRUES the plaintiff’s letter received on September 26,
2017 as a motion to file an amended complaint, and DENIES that motion. Dkt.
No. 40.
The court ORDERS that this case is DISMISSED. The clerk will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
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from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 23rd day of October, 2017.
BY THE COURT

__________________________________________
HON. PAMELA PEPPER
United States District Judge

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