McDaniel v. Johnson
ORDER signed by Judge Pamela Pepper on 11/20/2017 DENYING 46 Plaintiff's 10/30/2017 motion. (cc: all counsel, via mail to Milton McDaniel at Waupun Correctional Institution) (cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-cv-91-pp
DECISION AND ORDER DENYING
THE PLAINTIFF’S MOTION (DKT. NO. 46)
On October 23, 2017, the court granted the defendant’s motion for
summary judgment and dismissed the case. Dkt. No. 43. The court explained
that the plaintiff did not have any claims against the only named defendant in
the case (Doyal Johnson), and that the plaintiff would have to file a new lawsuit
if he wanted to proceed with claims against other individuals who he had not
named as defendants. Id.
A week later, the court received a motion from the plaintiff. Dkt. No. 46.
The caption includes Johnson and nine additional defendants. Id. The body of
the motion reiterates many allegations the plaintiff made in prior filings,
including: the plaintiff received someone else’s prescription medication; he has
been vomiting and having stomach pains as a result of getting the wrong
medication; different officers have been refusing to answer his “emergency call
button” because they think that the plaintiff is “playing around;” a nurse
laughed at the plaintiff because he had thrown up from getting the wrong
medication; and only a licensed medical professional should be distributing
prescription medication. Id.
While the plaintiff calls his pleading a motion, the pleading does not ask
the court for any relief. Id. It is possible that he meant the motion to be a
motion for leave to file an amended complaint; the court received an amended
complaint from the plaintiff on October 25, 2017 (two days after the court
issued its order granting summary judgment and dismissing the case). Dkt. No.
45. If the plaintiff did mean to ask leave to file an amended complaint, the
court will not grant that motion. The time to file an amended complaint is while
the case remains open. Once the court has dismissed the case, the appropriate
way for the plaintiff to proceed would have been to do what the court
suggested—file a new case.
In fact, the plaintiff appears to have done just that. On October 30, 2017,
the plaintiff filed a new complaint, McDaniel v. Steele, Case No. 17-cv-1495,
Dkt. No. 1. That complaint names only defendant Steele, but it makes the same
allegations that the plaintiff made in this case. The new case is pending before
Judge Jones, who has not yet had the opportunity to screen that complaint. If
the plaintiff wants to bring additional claims or name additional defendants
relating to his allegations about his prescription medication, he should file an
amended complaint in that open case—McDaniel v. Steele, Case No. 17-cv-
1495—not in this closed one.
The court ORDERS that the plaintiff’s October 30, 2017 motion is
DENIED. Dkt. No. 46.
Dated in Milwaukee, Wisconsin this 20th day of November, 2017.
BY THE COURT
HON. PAMELA PEPPER
United States District Judge
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